We’ve often written about privity and legal malpractice, and ran across this case illustrating the boundaries of privity in medical malpractice. The facts are ghastly, and the outcome, for plaintiff, is doubly hurtful.

In Fox v Marshall ; 2011 NY Slip Op 06214 ;  Appellate Division, Second Department ; Sgroi, J., J. the question is whether decedent’s husband may sue a physician alleged to have negligently treated a psychiatric patient.

"In this case we address the often muddled issue of whether a legally viable medical malpractice cause of action can be asserted against a physician by a third party even though no doctor-patient relationship ever existed between these parties. Under the circumstances of this case, we conclude that the law does not recognize such a cause of action.

This action has its genesis in a particularly brutal and unsettling crime, the murder of Denice Fox by her neighbor, the defendant Evan Marshall, on August 17, 2006. Denice Fox, a retired teacher, lived on Willada Lane in Glen Cove, Nassau County. Prior to 2005, Evan Marshall lived, intermittently, at the home of his mother, the defendant Jacqueline Marshall, which was located two doors away from the Fox home. At the time of the crime, Marshall was 31 years old, had a history of substance abuse and psychiatric problems, and had, between August and November 2005, been treated at 10 different drug abuse and mental health facilities.

Beginning in November 2005, Marshall resided at and was treated at the defendant SLS Residential, Inc. (hereinafter SLS), a substance abuse and mental health facility located in Brewster, New York. According to the agreements governing patients-clients treated at SLS, enrollment in the facility’s various programs was "voluntary." However, the agreements also stated that "a member" must give 30 days prior written notice of intention to "leave the program." There is no language in the agreements specifically governing a procedure whereby a member is permitted to temporarily leave the facility. The plaintiff alleges, however, that on August 16, 2006, the day before the murder, officials at SLS gave Marshall a "pass" to leave the facility for the ostensible reason of visiting his mother in Glen Cove. The plaintiff also alleges that Marshall was given the keys to his car and was permitted to leave the facility with $900 in cash, which he had earned from a part-time job while he was in treatment.
Upon arriving on Long Island, Marshall allegedly bought cocaine and then went to his mother’s house, where he apparently spent the night. On August 17, 2006, at approximately 8:30 A.M., Marshall allegedly drove his car onto a footpath in Glen Cove and intentionally struck a woman who had been jogging thereon. Later that morning, Marshall rang the doorbell at Denice Fox’s home and forced his way into the house. He then proceeded to murder Ms. Fox and dismember her body, which he then transported to his mother’s house. Ultimately, the crime was discovered and Marshall was arrested. He has since pleaded guilty to, inter alia, the crimes of murder in the first degree and burglary in the first degree.

The Supreme Court denied the motion [to dismiss] and cross motions holding, inter alia, that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient’s actions and has knowledge that the patient may be a danger to himself and others. The Supreme Court also found that the allegations, if proven, would establish that Jacqueline Marshall owed a duty of care to the decedent. We modify and conclude that the Supreme Court should have granted those branches of the motion and cross motions which were to dismiss the cause of action alleging medical malpractice, and [*3]should have granted Jacqueline Marshall’s separate cross motion to dismiss the complaint insofar as asserted against her. "

"In the case at bar, Marshall was not involuntarily confined to the SLS facility. Nonetheless, the SLS defendants and the SLS employees exercised a certain level of authority and control over Evan Marshall. Although the degree of such control is unclear at this stage of the case, the mere fact that Marshall appeared to need a facility-issued pass in order to visit his mother suggests that he was not completely free to leave the facility (cf. Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9 – "[the patient] could come and go as she pleased"). The record also discloses that the SLS defendants and the SLS employees were aware of Marshall’s severe psychological problems. Accordingly, accepting the facts as alleged in the complaint as true, and according "every possible favorable inference" to the plaintiff (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d at 87), the complaint herein sufficiently alleges a cause of action in negligence against the SLS defendants and the SLS employees (see Rivera v New York City Health and Hospitals Corporation, 191 F Supp 2d at 421; see also Williams v State of New York, 84 AD3d 412).

However, under the circumstances of this case, the absence of any doctor-patient relationship between the decedent and the SLS defendants or Stumacher precludes a cause of action based on medical malpractice. It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship. Indeed, it is this relationship which gives rise to the duty imposed upon the doctor to properly treat his or her patient (see Bazakos v Lewis, 12 NY3d 631, 634; Payette v Rockefeller Univ., 220 AD2d 69, 72; Ellis v Peter, 211 AD2d 353; Heller v Peekskill Community Hosp., 198 AD2d 265; LoDico v Caputi, 129 AD2d 361, 363; see also Speigel v Goldfarb, 66 AD3d 873, 874). Therefore, a doctor’s "duty of care is ordinarily only one owed to his or her patient" (Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9), and correspondingly, the element of duty would normally be missing from a claim made against a doctor by one who is not that doctor’s patient. "