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Powell v. Catholic Medical Center3/21/2000
a clearly identified or reasonably identifiable victim. The statute governs only those circumstances. The statute does not implicitly repeal the common law duty to warn of a potentially violent patient who may pose a danger to others.
II. Jury Instructions
The defendants next challenge the trial court's jury instructions regarding the common law duty to warn claim. "We review jury instructions in context and will not reverse unless the charge, taken in its entirety, fails to adequately explain the law applicable to the case so that the jury could have been misled." Chellman v. Saab-Scania AB, 138 N.H. 73, 79, 637 A.2d 148, 151 (1993).
Relying on Restatement (Second) of Torts ยง 315 (1965), the trial court instructed:
Generally there is no duty on the defendants to provide a warning regarding the conduct of a third person, such as [the patient], to prevent him from causing physical harm to the plaintiff unless,
One: A special relationship exists between the defendants and the third person which imposes a duty upon the defendants to control the third person's conduct, or;
Two: A special relationship exists between the defendants and the plaintiff which gives the plaintiff a right to protection.
The defendants argue that compliance with the common law duty should be determined under a "reasonable professional" standard rather than a "reasonable person" standard. We reject this argument. In its charge, the trial court stated in pertinent part:
The test of reasonable care is what the ordinary prudent person would do under like or similar circumstances. It is up to you to decide whether or not the defendants exercised reasonable care under all the circumstances. A failure to fulfill this duty of reasonable care would be negligence and would amount to legal fault if it was a cause or a substantial cause of the injuries in this case.
In New Hampshire, " he test of due care is what reasonable prudence would require under similar circumstances." Weldy v. Town of Kingston, 128 N.H. 325, 330-31, 514 A.2d 1257, 1260 (1986). The case before us is an ordinary duty of care case. It is only fortuitous that one of the defendants is a physician. Specialized training and experience do not excuse a physician from exercising the reasonable care of an ordinary person. In this case, the progress notes of the patient detail numerous prior events that served to put Dr. Curtis and CMC on notice that the patient may have been a threat. The defendants had fair warning that this patient may pose a threat to a phlebotomist who came in contact with him. Specialized training and experience were not required to make that determination.
Additionally, the jury asked whether the ordinary prudent person was a person on the street or a person with the experience of a doctor, nurse, or phlebotomist. The trial court responded that reasonable care is what the ordinary prudent person would do under similar circumstances. The trial court told the jury that it may consider the education, experience, and training of the doctors, nurses, and phlebotomists in this case. Thus, the jury was able to consider training and experience. We find no error in the manner in which the trial court addressed the issue of the "reasonable person" standard in its instruction.
The defendants next contend that the trial court did not properly instruct the jury as to the definition of foreseeability. The trial court instructed:
A person is not responsible for the consequences of their act unless the risk of an injury is reasonably foreseeable. The exact occurrence or the precise injuries need not be foreseen. In terms o
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