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Bolieu v. Sisters of Providence (2/13/98), 953 P 2d 1233


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


WALTER BOLIEU and ORLIN       )
OLIVER,                       )
                              )    Supreme Court No. S-7575
             Appellants,      )
                              )    Superior Court Nos.
     v.                       )    3AN-96-3003 CI,
                              )    3AN-96-3028 CI
SISTERS OF PROVIDENCE IN      )
WASHINGTON, and/or d/b/a      )
OUR LADY OF COMPASSION CARE   )    O P I N I O N
CENTER,                       )
                              )    [No. 4948 - February 13, 1998]
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.


          Appearances: Charles W. Coe, Anchorage, for
Appellants.  John M. Conway and Anne E. Kane, Atkinson, Conway &
Gagnon, Anchorage, for Appellee.  


          Before:  Compton, Chief Justice, Matthews,
          Eastaugh, Fabe, and Bryner, Justices.  


          EASTAUGH, Justice.
          FABE, Justice, with whom BRYNER, Justice,
joins, dissenting.  


I.   INTRODUCTION
           The issue presented is whether a residential health care
facility owes to the spouses of the facility's nursing assistants
any duty of care to control infections or warn of the danger of
infection.  The superior court held that it does not.  Because we
conclude that the relevant considerations warrant imposing a duty
of care, we reverse.  
II.  FACTS AND PROCEEDINGS
          Gwen Bolieu and Bodhmati Oliver were employed as nursing
assistants at Our Lady of Compassion Care Center (Our Lady). [Fn.
1]  They are respectively married to Walter Bolieu and Orlin
Oliver.  Sisters of Providence in Washington operates Our Lady, a
convalescent and long-term residential care facility.  Among other
things, nursing assistants take the blood pressure of Our Lady
residents and help them bathe.
          In 1990 several Our Lady employees reported skin
problems.  They complained of a skin rash with itchy bumps.  The
Director of Quality Management at Our Lady, Nurse Kathleen Lum,
sent the employees, including Bodhmati, to a treatment center where
Bodhmati was diagnosed with a staph infection. [Fn. 2]  She was off
work for a week and treated with antibiotics.  Gwen also contracted
a skin rash in 1990.
          Nurse Lum also directed the nursing staff to check the
skin of Our Lady patients.  Nurse Lum affied that at least three
patients suffered from rashes, but that the cause was not
determined.  A microscopic examination ruled out scabies. [Fn. 3]
          In 1991 many Our Lady employees again complained of
various skin rashes and disorders.  Nurse Lum sent them to a
dermatologist or a treatment center for examination.
          In June 1991 Bodhmati was diagnosed and treated for a
staph infection.  In July 1991 Gwen was diagnosed and treated for
a staph infection.  
          Gwen and Bodhmati filed workers' compensation claims. 
Dr. Michael Beirne apparently concluded in the context of their
workers' compensation claims that their infections were work-
related.  Dr. Beirne later explained in a deposition taken in the
tort suits that
          [T]hey would have the -- the condition when
they were at work, and then when they re-treated them and kept them
off work for a while, they -- the condition would resolve. And then
when they would go back on the job, the disease would recur. 

               And this happened a number of times, and
we came to the conclusion that that was -- that was the situation,
that they were picking it up at work and that environment, or
whatever was there, however it worked, was causing this. 

          Infectious disease specialists -- including Drs. Burton
Janis and Paul Roberts, who evaluated Gwen and Bodhmati in the 
workers' compensation proceedings -- offered opinions contrary to
Dr. Beirne's, concluding that the employees' skin conditions were
not work-related.  Their opinions seem to be founded on the
widespread distribution of staph bacteria in the general community.
          Dr. Beirne diagnosed both Walter Bolieu and Orlin Oliver
with staphylococcus bacterial infections.  He opined that they
contracted their skin infections from their wives. 
          Walter and Orlin each filed a personal injury complaint
against Our Lady in 1993; each alleged that he had been infected
with staph during visits to the facility and/or through contact
with his wife.  Their complaints asserted that Our Lady owed them
and their families "a duty of care to maintain their care center
free of staph or other infections [sic] diseases."  The cases were
consolidated. 
          Our Lady moved for summary judgment, arguing in part that
health care facilities have no duty to protect non-patients from
infectious agents routinely encountered in the general community.
[Fn. 4] The superior court granted Our Lady's motion.  Applying the
factors set out in D.S.W. v. Fairbanks North Star Borough School
District, 628 P.2d 554, 555 (Alaska 1981), it ruled that Our Lady
owed Walter and Orlin no duty of care.
          Walter and Orlin filed a motion for reconsideration,
supported by extensive materials not previously filed.  The
superior court denied their motion, entered final judgment against
them, and awarded attorney's fees and costs to Our Lady.
          Walter and Orlin argue on appeal that Our Lady owes them
a duty of care.
III. DISCUSSION
     A.   Standard of Review
          We review "a grant of summary judgment de novo and will
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy."  Reeves v. Alyeska Pipeline Serv.
Co., 926 P.2d 1130, 1134 (Alaska 1996) (citations omitted).  We
will uphold a grant of summary judgment if the record presents no
genuine issues of material fact and the movant is entitled to
judgment as a matter of law.  Newton v. Magill, 872 P.2d 1213, 1215
(Alaska 1994).  Because the duty issue was presented to the
superior court on Our Lady's motion for summary judgment, we take
all permissible factual inferences in favor of Walter and Orlin. 
          "The existence and extent of a duty of care are questions
of law for the court to determine."  Beck v. State, Dep't of
Transp. & Pub. Facilities, 837 P.2d 105, 109 (Alaska 1992)
(applying the test established in Tommy's Elbow Room, Inc. v.
Kavorkian, 727 P.2d 1038, 1040-43 (Alaska 1986), to allow plaintiff
to pursue claim for negligent infliction of emotional distress).
     B.   Does Our Lady's Duty to Minimize Infection or Warn
Employees Extend to Nursing Assistants' Spouses?

          Walter and Orlin claim that Our Lady owed them a duty to
take "reasonable measures"to control infectious diseases at its
facility.  They also argue that Our Lady owed them a duty to inform
or warn employees that their infections could be spread to family
members, and that the employees should take measures to prevent
such a spread.  The superior court concluded that Our Lady owed the
spouses no duty of care.
          Before a defendant can be held liable for negligence, it
must owe a duty of care to the plaintiff.  See Division of
Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986).  "Duty"
is the "expression of the sum total of those considerations of
policy which lead the law to say that a particular plaintiff is
entitled to protection."  Id. (quoting William L. Prosser, The Law
of Torts sec. 53, at 325-26 (4th ed. 1971)).  In the absence of any
other source of a duty of care (imposed, for example, by statute,
contract, or doctrine of law) we consider seven factors in deciding
whether a duty of care exists:
          "The foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the
injury suffered, the moral blame attached to the defendant's
conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for
breach, and the availability, cost and prevalence of insurance for
the risk involved." 

D.S.W., 628 P.2d at 555 (quoting Peter W. v. San Francisco Unified
Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)). [Fn. 5] 

          We weigh these "D.S.W. factors"to determine whether a
duty of care exists.  See Estate of Day v. Willis, 897 P.2d 78, 81-
82 (Alaska 1995) (after balancing the D.S.W. factors, holding
officers owed no duty to protect fleeing offenders from their own
actions).  In analyzing the factors, we treat the legal
relationship between individuals as the focus for the duty
question.  See W. Page Keeton et al., Prosser and Keeton on The Law
of Torts sec. 53, at 356 (5th ed. 1984) [hereinafter Keeton] ("It
is
better to reserve 'duty' for the problem of the relation between
individuals which imposes upon one a legal obligation for the
benefit of the other, and to deal with particular conduct in terms
of a legal standard of what is required to meet the obligation.").
[Fn. 6] 
          1.   Foreseeability of the harm
          We have stated that "[t]he most important single
criterion for imposing a duty of care is foreseeability."  Neakok,
721 P.2d at 1125 (citing Tarasoff v. Regents of the Univ. of
Calif., 551 P.2d 334, 342 (Cal. 1976)); see also Karen L. v. State,
Dep't of Health & Soc. Svcs., __ P.2d __, Op. No. 4943 at 8
(Alaska, February 6, 1998); R.E. v. State, 878 P.2d 1341, 1346
(Alaska 1994).  
          Walter and Orlin argue that the harm to them was
foreseeable because Our Lady lacked effective infection control,
ventilation, and sanitation.  They argue that spouses of Our Lady
employees are an identifiable group of people foreseeably affected
by the facility's environment.  Our Lady agrees that it is
foreseeable that patients, employees, and visitors will be exposed
to infectious agents at health care facilities, but asserts that
"it is equally foreseeable"they will be exposed to the same agents
elsewhere, and that the exposure is an inherent risk of human
contact.
          It is undisputed that patients at Our Lady occasionally
contract infectious diseases.  If the facility fails to take
reasonable measures to control the spread of infectious disease at
the facility, it is foreseeable that some employees will contract
diseases from patients.  It is also foreseeable that employees who
contract infectious diseases at work might transmit those diseases
to their spouses.
          In a comparable case, the spouse of a hospital security
guard exposed to the AIDS virus sued the hospital on a claim of
negligent infliction of emotional distress.  See Vallery v.
Southern Baptist Hosp., 630 So. 2d 861, 862-63, 868, 869 (La. App.
1993) (holding, in part, that the hospital owed the spouse a duty
of care).  Foreseeability is a component of Louisiana's test to
determine whether a duty exists.  Id. at 868.  The court held that
"[i]t is highly foreseeable that a security guard negligently
exposed to HIV will be married and will have unprotected sexual
relations with his wife unless promptly warned of his HIV
exposure."  Id.; see also Jarvis v. Providence Hosp., 444 N.W.2d
236, 240 (Mich. App. 1989) (finding a duty owed to a hospital lab
technician's fetus, and holding that it was foreseeable that
technician might contract hepatitis if not promptly given gamma
globulin injection after cutting her finger on a vial, and that
"[s]ince Mrs. Jarvis was then pregnant, a fact known to defendant,
it was also foreseeable that, should Mrs. Jarvis contract
hepatitis, the fetus might suffer injury as well"); Wojcik v.
Aluminum Co. of America, 183 N.Y.S.2d 351, 357-58 (N.Y. Sup. 1959)
("The risk of the plaintiff-wife contracting tuberculosis from her
[employee] husband, when unaware that he was so afflicted, was
reasonably foreseeable by the defendant [employer]."). [Fn. 7]
          We conclude that it was foreseeable that spouses of Our
Lady nursing assistants could be infected by diseases if Our Lady
did not take reasonable measures at the facility to minimize the
spread of those diseases to the nursing assistants and their
spouses, or did not warn the nursing assistants to take precautions
to avoid infecting their spouses. 
          2.   The degree of certainty that plaintiffs suffered
injury and the closeness of the connection between their infections
and the actions of Our Lady        
          Walter and Orlin allege that their staph infections were
a result of Our Lady's disregard for sanitary, health, and
infection control practices.
          Our Lady disagrees with the spouses' argument that links
the environment at Our Lady with the spouses' infections. [Fn. 8] 
Our Lady discounts assertions of poor infection control by stating
that Our Lady had established infection control procedures.
          Determining whether these plaintiffs were infected is not
inherently so difficult that it militates against imposing a duty. 
Likewise, any genuine disputes about whether they were infected and
what disease infected them do not bear on the legal issue now
before us, but on issues of breach of duty, causation, and damages. 
          We also conclude that the manner in which plaintiffs
allegedly became infected is connected closely enough to Our Lady's
alleged omissions to support imposing a duty.  The alleged
connection between Our Lady's conduct and the type of harm
plaintiffs claim to have suffered is not remote.  There is
potentially a direct relationship between the facility's conduct
and an infection transmitted to the spouse by direct exposure when
the spouse visits the employee at the facility, or by indirect
exposure when the spouse has contact with the infected nursing
assistant.  Plaintiffs allege that at least thirty-eight employees
suffered from skin problems between 1990 and 1992, and that spouses
of other employees were also infected.  They also allege that Our
Lady committed many health violations that would contribute to the
spread of infection.  If proven, these allegations would support an
inference that Our Lady's omissions were closely connected to the
skin problems suffered by employees and their spouses.  Any genuine
dispute about whether Our Lady's conduct actually caused injury to
Orlin and Walter should be resolved in the context of causation,
not duty. 
          The dissenting opinion argues that the impossibility of
establishing with any certainty that Our Lady's conduct caused the
spouses to contract this "common"infection militates against
finding a duty of care here.  Dissent at 31-32.  It argues that the
plaintiffs could have been infected anywhere.  Dissent at 32.  We
disagree with this analysis.  Staph is ubiquitous, but persons with
skin or draining staph lesions are highly contagious. 
"Staphylococcal Infections,"Red Book Report on Committee of
Infectious Diseases, American Academy of Pediatrics 423-26 (1994). 
The plaintiffs allege health violations by Our Lady that would have
increased the risk that employees and patients would be infected by
other employees and patients with skin lesions.  Employees with
skin lesions allegedly were permitted to return to their spouses
without receiving any warning from Our Lady concerning the spread
of infection.  Even if we assume the spouses were also exposed to
independent sources of staph bacteria, we cannot ignore the
potential additional threat posed by exposure to their infected
wives.  For purposes of our duty analysis, we must assume that this
alleged exposure increased the likelihood the husbands would be
infected.  Moreover, the number of Our Lady employees and spouses
who allegedly suffered skin problems implies a less remote and less
uncertain connection between the harm and the conduct than the
dissent suggests.
          In our view, concerns about whether the plaintiffs were
infected by sources unrelated to Our Lady do not militate against
imposing a duty of care, but are best addressed when the trial
court determines what conduct was required to discharge the duty,
and whether any breach of duty caused the plaintiffs' infections. 
          3.   The moral blame, the policy of preventing future
harm, and the extent of the burden to the defendant and
consequences to the community of imposing a duty of care
          Walter and Orlin argue that Our Lady's conduct was
morally blameworthy because many employees had reported skin
rashes.  Our Lady denies that there was any "epidemic"or cover-up
by Our Lady administration.  Our Lady argues that for conduct to be
morally blameworthy under D.S.W., it must pose a significant threat
of serious physical or emotional harm, hazards it claims were
absent here.
          There was little or no evidence of moral blameworthiness
in the record when the superior court granted summary judgment to
Our Lady.  Evidence suggesting that many other employees and
spouses also suffered skin rashes was first submitted with the
plaintiffs' reconsideration motion.
          We recognize that staph infections are difficult to
contain and normally do not present a threat of serious harm.  See
Sommers v. Sisters of Charity of Providence in Oregon, 561 P.2d
603, 607 (Or. 1977) (finding that it is impossible in all cases to
prevent the spread of bacteria during insertion of an intravenous
needle).  We therefore conclude that Our Lady's conduct was not
morally blameworthy.  We need not decide whether more dangerous
infections could justify a conclusion that a facility's conduct was
morally blameworthy.  Cf. Neakok, 721 P.2d at 1129 (state's failure
to control violent parolee was "morally blameworthy"); City of
Kotzebue v. McLean, 702 P.2d 1309, 1314 (Alaska 1985) (police
officer's failure to investigate death threat by a known individual
was "morally blameworthy").
          Walter and Orlin argue that recognizing a duty of care
will not impose a "new or unacceptable burden"on Our Lady because
it must follow existing regulations and policies, and must exercise
reasonable care in running its facility.  They assert that there
are known standards and procedures for control of infection.  They
argue that Our Lady already owes a duty to staff and patients, and
that extending the duty to "foreseeable persons in daily physical
contact with employees who are also in daily contact with an
infected environment"is not unreasonable and will not open the
litigation floodgates.  The spouses assert that imposing this duty
will encourage Our Lady to educate and to warn its employees about
the spread of infection.
          Our Lady argues that it would be impossible to satisfy a
duty of care, because of the difficulty of protecting non-patients
and employees from ubiquitous infectious agents.  Our Lady asserts
that even the most stringent infection control techniques "cannot
always prevent infection"by staph.
          The superior court noted that imposing a duty in favor of
the spouses would not change Our Lady's burden.  This conclusion
seems correct, because the facility is already required to satisfy
high regulatory standards.  It consequently appears to us that
imposing a duty of care will not require burdensome additional
preventative efforts.  Further, the facility already owes tort or
statutory duties to patients and employees, the persons most
directly threatened by inadequate efforts to control infections.
          It appears that Our Lady's exposure to great financial
burden is small, accepting the analysis of Our Lady and the
dissent.  On the one hand, the very ubiquity of staph will make it
relatively difficult for a plaintiff to establish the causal
relationship necessary to recover damages; on the other hand, the
relative harmlessness of such infections, Dissent at 35-36, means
that any damage recovery will be modest.  Likewise, the relative
harmlessness of such infections means that facilities will be able
to demonstrate that they have discharged the duty of care without
taking the sort of measures a more dangerous infection might
require.  In short, it appears that such claims can be effectively
defended on their merits and do not pose a grave economic threat.
          Contrary to assertions by Our Lady and the dissent at 36,
we are not imposing some burdensome duty to "protect"persons from
disease.  Rather, we simply hold that the duty to take reasonable
measures to minimize the spread of disease extends to spouses of
employees.  The degree of care which is reasonable correlates to
the severity and the transmissibility of the disease at issue. 
Concerns about the adequacy of Our Lady's efforts to discharge that
duty of care are better resolved when the issue of breach is
litigated than when the threshold duty issue is decided.
          The burden resulting from imposing a duty to warn or
inform also seems legally insignificant, given the relative ease
with which it can be discharged.  With respect to infections which
Our Lady argues are "ubiquitous"and "garden-variety,"any duty to
inform can be discharged by advising employees of the precautions
they should take to avoid becoming infected themselves and to avoid
infecting their spouses.  A particularized threat about which the
facility has superior knowledge may require a more specific warning
to employees.
          Our Lady argues that imposing a duty will not prevent
future harm, because health care facilities are already heavily
regulated, and must already comply with the most advanced infection
control techniques.  The superior court reasoned that imposing a
duty would therefore not prevent future harm.  Our Lady has not
demonstrated that the regulatory standards are directed at
preventing the spread of infection to spouses of employees. [Fn. 9] 
Our Lady acknowledges that its infection control policies are
designed "to protect [facility] residents and employees from the
spread of infection."  We are unwilling to assume that imposing a
further duty to warn employees about the need for precautions to
avoid infecting spouses would have no beneficial effect.
          We conclude that these factors support imposing a duty of
care because the potential burden of doing so is modest and does
not outweigh the potential benefits.
          4.   The availability, cost, and prevalence of insurance
          Walter and Orlin assert that Our Lady can insure against
these risks, and should bear the cost of doing so.  Our Lady argues
that it is "highly questionable"whether insurance covering claims
of non-patients exposed to "garden-variety infectious agents"is
available.  It claims that imposing a duty of care would cause
health care costs to rise without any meaningful benefit.
          We take notice of the circumstance that liability
insurance is readily available to cover most personal injury claims
alleging breach of a tort duty of care.  No evidence in the record
supports Our Lady's speculation that such insurance is unavailable,
or that its cost would be excessive.  If evidence existed to rebut
common knowledge about the general availability of liability
insurance, we assume that such evidence would have been more
readily available to Our Lady than to Walter and Orlin, and would
have been offered.  Absent such evidence, we assume existing forms
of liability insurance cover any additional incremental risk,
allowing Our Lady to share that risk with similar facilities and to
spread any additional cost of that risk to those who pay for
services.  For the reasons noted above, the risk of frequent
litigation seems small given the difficulty of proving such claims
and the modest damages recoverable. 
          5.   Other considerations
          The dissent would distinguish between cases involving
"common infections"and those involving serious illnesses.  Dissent
at 26.  We think the duty issue cannot turn on possible
distinctions among diseases based on their severity and ubiquity. 
Whether a hospital negligently fails to minimize an employee's
spouse's exposure to staph rather than AIDS should not determine
whether the hospital owes the spouse a duty.  Rather, the severity
and ubiquity of the disease bear on what the facility must do to
discharge the duty.  Illustrating the distinction between these two
inquiries are the two opinions the dissent relies on at 30 to
support its argument that no duty should be imposed regarding staph
infections.  In Roark v. St. Paul Fire & Marine Insurance Co., 415
So. 2d 295 (La. App. 1982), and Sommers v. Sisters of Charity of
Providence, 561 P.2d 603 (Or. 1977), patients who developed staph
infections after invasive procedures sued hospitals for negligence. 
It is undisputed that doctors owe patients a duty of care.  Those
cases did not turn on whether a duty existed, but on whether there
was evidence the defendants breached that duty.  Roark, 415 So. 2d
at 297 (affirming a defense judgment following trial, and stating
that  "[t]he evidence shows that the procedures employed meet or
exceed national standards"); Sommers, 561 P.2d at 606 (affirming a
defense directed verdict, and stating that "[i]n our view, there
was simply no substantial evidence of any negligence on defendant's
part presented to the jury").  Both of those cases went to trial;
neither court held that the ubiquity of staph bacteria precluded a
duty of care.
          Also distinguishable are other cases the dissent cites at
27-30 to show that courts have not "recognized a duty owed by
health care providers to protect employees' or patients' spouses or
other third parties from staph or other common infections."  In
Knier v. Albany Medical Center Hospital, 500 N.Y.S.2d 490 (N.Y.
Sup. 1986), a nurse's family contracted scabies after the nurse
treated a patient who she did not know had scabies.  A trial court
declined to impose a duty on the hospital to warn the nurse's
family of her exposure to scabies.  Id. at 491.  That court
reasoned, and the dissent agrees, that the class of protected
people cannot logically be limited to the nurse's family because
"any member of the general public with whom [the nurse] came in
contact could share the same risks of infection as plaintiffs." 
Id. at 492; Dissent at 28.  We disagree with that proposition
because it fails to recognize that nurses are foreseeably more
likely to have intimate contact with family members, especially
spouses, than with members of the general public.  As the dissent
notes, "[scabies] is transmitted . . . primarily through intimate
direct contact with an infested person."  Dissent at 27 n.7
(emphasis added).  Spouses are foreseeably more likely to be at
risk than the general public.  See discussion supra Part III.B.1. 
          
          In Troxel v. A.I. duPont Institute, 636 A.2d 1179, 1183
(Pa. Super. 1994), duPont treated Siple, who was infected with
cytomegalovirus (CMV), a common disease which is dangerous only if
communicated to a pregnant woman.  The court declined to extend
duPont's duty of care to Troxel, a non-family member who became
infected.  The Troxel court held that duPont's relationship with
its patient did not require it to prevent her from infecting third
persons.  Id.  We think that conclusion is overbroad, because it
fails to recognize the possibility of a duty in favor of those
persons, such as spouses, who are foreseeably most at risk.
          In Livingston v. Gribetz, 549 F. Supp. 238, 244, 245
(S.D.N.Y. 1982), the court granted a doctor a directed verdict
because there was "no real evidence of a duty or breach of duty"to
advise a registered nurse of proper procedures in handling a
patient with herpes, and because, "most significant of all,"
causation was "wholly absent."  The court noted that "a
pediatrician may reasonably and legally leave to hospital
attendants routine methods of performing their duties, with the
reasonable expectation that hospital servants will follow hospital
protocol as the obligation of that professional staff."  Id. at
243.  The decision, apparently announced from the bench following
trial, contains little legal analysis of the duty issue, and rests
primarily on the breach and causation issues.  Id. at 244.  (Had
there been no duty, there would have been no need to try the case
or address the breach and causation issues.)  Further, the court's
references to the "registered professional nurse,""registered
nurse,""licensed professional,"and the "professional staff"imply
that the court believed there was no reason to impose a duty in
favor of this plaintiff.  See id. at 239, 241, 243, 244.  The
doctor was not the nurse's employer, and could expect the nurse to
take appropriate precautions to protect herself.  In comparison,
Our Lady owed an existing duty to nursing assistants to control
infection, and we now simply extend that duty to spouses who are
foreseeably at risk.
          The dissenting opinion states that the result we reach
today is "unprecedented and ill-advised."  Dissent at 26.  The
apparent foundation for that view is the dissent's conclusion that
rare or dangerous diseases -- which would apparently justify
imposing a duty of care to these plaintiffs -- must be
distinguished from "ubiquitous, relatively harmless infections"  --
which do not.
          One problem with this distinction is that it necessarily
makes the legal issue of duty unduly fact specific, turning on the
relative ubiquity and severity of the disease.  At what point would
this fact-specific inquiry justify imposing a duty?  What if the
disease were found in only ten percent of the adult population?  Or
six percent?  Or if it were very dangerous to limited population
groups?  We think such fact-intensive inquiries pertain to the
issues of breach, causation, and damages, not the threshold legal
question of whether a duty exists.
          A second problem with this distinction is that the
dissent seems to assume that this risk is simply one that everyone
bears; it may also assume that the relatively minor consequences of
such infections should be borne as a personal risk.  The trouble
with this assumption is that it ignores the underlying
justification for imposing liability: liability assumes that the
conduct of the facility has increased the risk the general
population already bears; it is this incremental additional risk
that raises the duty issue.  Liability contemplates proof that the
spouse was infected as a result of conduct that increased the risk
of infection, not as a result of exposure to existing sources of
infection.  Finally, assuming a facility breaches the applicable
standard of care, we see no reason to protect it from the
consequences of its negligence.  The dissent's legitimate concerns
about awarding damages to plaintiffs infected by minor, common
diseases are adequately satisfied by requiring a plaintiff to prove
that the conduct was negligent, that the negligence was the legal
cause of harm, and that the plaintiff suffered damages.  The
difficulties of surmounting these hurdles provide all the
protection the facility legitimately requires.   We need not also
unduly limit the duty of care to those with whom the facility is in
strict privity.  If strict privity existed, there would be no
reason to consider the D.S.W. factors in the first place.
          We also note that even a common or relatively benign
infection may pose great risk to some members of the population. 
To find no duty here is to deny those victims any opportunity to
make a claim notwithstanding negligent conduct by a facility.
IV.  CONCLUSION
          Having weighed the D.S.W. factors, we hold that a health
care facility owes a duty of care to the spouses of its nursing
assistants to take reasonable measures to minimize the spread of
infection, including informing its nursing assistants of the risks
of exposure.  We therefore REVERSE the grant of summary judgment,
and REMAND for further proceedings. [Fn. 10] 

FABE, Justice, with whom BRYNER, Justice, joins, dissenting.

I.   INTRODUCTION        
          Because I disagree with the court's conclusion that
health care facilities owe a duty of care to their employees'
spouses to control the spread of common infections such as staph
and to warn of their risks, I dissent from the court's opinion.  No
other jurisdiction has concluded that health care facilities owe a
duty to protect employees' spouses or other third parties from
staph or other common infections.  Furthermore, the D.S.W. factors
do not favor imposition of a duty under the circumstances presented
here.  
II.  DISCUSSION
     A.   The Court's Analysis Should Distinguish between Common
Infections Such as Staph and Rare or Dangerous Diseases Such as
AIDS.

          This case does not require us to pose the question of
whether Our Lady owes a duty to protect employees' spouses from
infections generally.  Rather, it presents the narrower question of
whether Our Lady owes a duty to protect employees' spouses from
common infections such as staph.  The courts that have considered
this question have held that a health care provider does not owe
such a duty.  Because the court's opinion asks the more general
question "whether a residential health care facility owes to the
spouses of the facility's nursing assistants any duty of care to
control infections or warn of the danger of infection,"Op. at 1-2,
it fails to distinguish cases involving rare or dangerous diseases
such as AIDS from cases involving ubiquitous, less serious
infections such as staph.  It therefore misconstrues the duty of a
health care provider to protect employees' or patients' spouses or
other third parties from harm.  
          The court's opinion does not rely upon cases addressing
the duty owed by a health care provider to protect third parties
from common infections.  Instead, it finds support in Vallery v.
Southern Baptist Hosp., 630 So. 2d 861 (La. App. 1993), a case
involving AIDS.  Op. at 9.  In Vallery, an AIDS patient bled on the
hand of a security guard who did not know the patient had AIDS. Id.
at 862.  Although the hospital was aware the patient had AIDS, the
hospital did not inform the guard that he had been exposed to HIV
until the following day, after the guard had sexual relations with
his wife.  The hospital was found to owe a duty to warn the guard's
wife of the potential danger.  Id. at 868-869.  
          The court's opinion refers to Vallery as "comparable"to
the case at hand.  Op. at 9.  I disagree.  The Vallery court based
its holding in large measure on "policy considerations"not present
in this case.  Specifically, the court observed that "AIDS is both
incurable and fatal"and that simple measures serve to prevent the
harm. Id. at 868-69.  In contrast, as the court's opinion
acknowledges elsewhere, staph infections are very common, [Fn. 1]
"are difficult to contain and normally do not present a threat of
serious harm."[Fn. 2]  Op. at 14.  The court's failure to
recognize the crucial distinction between common infections and
serious illnesses leads it to reach what I believe is an
unprecedented [Fn. 3] and ill-advised decision.
          Health care providers may owe a duty to protect
employees' or patients' spouses or other third parties from rare or
dangerous diseases.  In the context of an AIDS diagnosis we have
observed with approval that "physicians must use reasonable care to
protect third persons from foreseeable exposure to contagious
diseases."  Chizmar v. Mackie, 896 P.2d 196, 208 (Alaska 1995). 
Courts in other jurisdictions have also recognized such a duty in
cases where family members are at risk of contracting AIDS, [Fn. 4]
developing cancer, [Fn. 5] or falling ill with other potentially
fatal diseases. [Fn. 6]       
          Courts have not, however, recognized a duty owed by
health care providers to protect employees' or patients' spouses or
other third parties from staph or other common infections.  As one
court has reasoned, imposing such a duty "would unduly extend
responsibilities and liability of institutions furnishing care to
the ill."  Knier v. Albany Med. Ctr. Hosp., 500 N.Y.S.2d 490, 492
(N.Y. Sup. 1986).  In Knier, a nurse contracted scabies [Fn. 7]
after contact with a patient with the disease.  Id. at 491.  The
hospital did not warn the nurse of the patient's condition.  Id. 
The nurse then passed the disease to her two infant children and
her boyfriend, who sued the hospital on a negligence theory for
failing to follow hospital procedure and failing to warn the nurse
of the danger.  Id. at 491-92.  The court held that the hospital
owed no duty to plaintiffs.  Id. at 492.  The court reasoned that
if it found a duty, there would be no logical reason to limit the
class of protected people to the nurse's family, because "any
member of the general public with whom [the nurse] came in contact
could share the same risks of infection as plaintiffs."  Id. at
492. 
          As Knier addresses a health care facility's duty to
protect employees' family members from a common, relatively
harmless infection, it provides persuasive support for affirming
the trial court in the case before us.  Indeed, the facts of Knier
present an even stronger argument than those in this case for
imposing a duty on the health care provider.  The Knier court
considered the duty to warn an employee of a danger known to the
hospital but not to the employee.  In contrast, we consider the
duty to warn employees of the danger of infection after the
employees had already received treatment for staph.  Thus, unlike
the Bolieu plaintiffs, the Knier plaintiffs were faced with a
hidden danger.  Despite these stronger facts, the court in Knier
held that the hospital owed no duty to protect the nurse's family
members from a common infection.
          Troxel v. A.I. DuPont Inst., 636 A.2d 1179 (Pa. Super.
1994), also provides compelling support for affirming the trial
court.  In Troxel, the plaintiff contracted cytomegalovirus (CMV),
a widespread disease that is "relatively harmless"unless
communicated to a pregnant woman who passes it to her unborn child.
Id. at 1183.  Plaintiff, a pregnant woman, contracted the disease
after frequent visits with an infected friend who was a patient in
the hospital.  Id. at 1180.  Plaintiff's son contracted the disease
in utero and died three months after birth.  Id.  The court held
that the hospital had no duty to take steps to prevent the patient
from coming into contact with other persons.  Id. at 1183.  It
reasoned that the
          transmission of ubiquitous diseases, such as
influenza and CMV, may seriously compromise the health of special
classes of persons, such as the elderly or the pregnant, but the
treatment of such diseases does not impose liability upon the
treating physician or health care provider in the event that the
disease is communicated by the patient to a third person.

Id.  Again, in the case of a common infection, even one with
significant health consequences for the particular plaintiff, no
duty to third parties was imposed on the health care provider.  
          Finally, in Livingston v. Gribetz, 549 F. Supp. 238
(S.D.N.Y. 1982), a nurse allegedly contracted viral herpes from a
patient and sued the patient's doctor for negligently failing to
advise the nurse of proper procedures to avoid infection.  Id. at
241.  Like Knier, Livingston presents a stronger argument than the
case before us for imposing a duty on the health care provider
because the nurse was under the defendant's supervision and in
direct contact with the infected patient.  Despite the greater
foreseeability of danger to the nurse and the stronger causal link
between her injury and the defendant's conduct, the court held that
the doctor did not owe a duty to advise the nurse how to avoid
infection.  See Livingston, 549 F. Supp. at 244.  Taken together,
these three cases represent the prevailing view that health care
providers do not owe a duty to protect third parties from common
infections.  
          The court's opinion appears even more out of step with
the case law from other jurisdictions when considered against the
backdrop of cases specifically addressing staph infections.  In
such cases, courts have consistently refused to find hospitals
negligent even when patients, rather than employees' spouses, have
developed staph infections.  See, e.g., Roark v. St. Paul Fire &
Marine Ins. Co., 415 So. 2d 295, 299 (La. App. 1982); Sommers v.
Sisters of Charity of Providence, 561 P.2d 603, 607 (Or. 1977).
[Fn. 8]  Until today's decision, neither this court nor any other
has held a health care provider liable to its employees' spouses
for common infections that do not present a threat of serious harm.
     B.   The D.S.W. Factors Do Not Favor Imposition of a Duty
under the Circumstances.
          
          The court's opinion properly identifies D.S.W. v.
Fairbanks North Star Borough School District, 628 P.2d 554 (Alaska
1981), as providing the analytic framework for determining whether
Our Lady owes a duty of care to its employees' spouses.  The first
D.S.W. factor to consider is foreseeability.  Id. at 555.  As Our
Lady concedes, it is foreseeable that employees will be exposed to
staph and other common infectious agents at health care facilities
such as Our Lady.  However, as Our Lady points out, "it is equally
foreseeable that such persons will be exposed to these same
infectious agents at school, on the bus, at the supermarket, or in
any other place where people congregate together."  In other words,
because staph is ubiquitous, it is inevitable that some people will
contract it wherever they go, including health care facilities.  
          While foreseeability may be the single most important
D.S.W. criterion for imposing a duty of care, it does not
necessarily trump the other six.  In Schumacher v. Yakutat, 946
P.2d 1255 (Alaska 1997), for example, we recently found that three
of the D.S.W. factors, including foreseeability, militated in favor
of imposing a duty.  Id. at 1257 n.3.  We nevertheless held that
"these factors are outweighed by 'the extent of the burden to the
defendant and consequences to the community of imposing [such] a
duty.'"  Id. at 1257 (quoting D.S.W., 628 P.2d at 555).  Our
analysis must then turn to the other six D.S.W. factors.
          The second and third D.S.W. factors are the degree of
certainty that the plaintiff suffered injury and the closeness of
the connection between the defendant's conduct and the injury
suffered. See D.S.W., 628 P.2d at 555.  In this case, the
relationship between plaintiffs' injury and Our Lady's conduct is
nebulous at best.  There is simply no way to prove one way or the
other that the plaintiffs suffered injury because of any conduct on
the part of the defendant.  As the court's opinion observes, staph
is common.  Op. at 2 n.2.  The plaintiffs could have been infected
anywhere.  Although it may be possible to establish with a degree
of certainty that the plaintiffs were in fact injured, it is
impossible to establish with any degree of certainty that their
injuries were the result of any conduct or omission by Our Lady.  
          The court's opinion dismisses the second and third D.S.W.
factors by arguing that they "do not bear on the legal issue now
before us [duty], but on issues of breach of duty, causation, and
damages"and that they "should be resolved in the context of
causation, not duty."  Op. at 11-12.  As the court's opinion itself
recognizes, however, duty is the "expression of the sum total of
those considerations of policy which lead the law to say that a
particular plaintiff is entitled to protection."  Op. at 6.  The
certainty of a plaintiff's injury and the closeness of the
connection between a defendant's conduct and the injury suffered
are integral parts of that sum total; indeed, they are included in
the D.S.W. analysis precisely because they bear on the legal issue
of whether a duty exists. 
          In this case, the implications of finding Our Lady
potentially liable for injuries that cannot be traced with any
certainty to its conduct suggest that we should not impose a duty. 
In fact, it was precisely this concern over the absence of a causal
connection that informed the analysis in Roark.  In Roark, a
patient developed a staph infection after undergoing surgery and
sued the hospital.  See Roark 415 So. 2d at 297.  In finding that
the hospital was not liable, the court observed that it is
impossible to trace the origins of staph bacteria and "[t]herefore,
it is not possible to establish the hospital's relationship with,
or responsibility for, the subsequent infection."  Id. at 298-99. 
Because any connection established between Our Lady's conduct and
the staph infections of two of its employees' spouses is similarly
speculative, [Fn. 9] I believe that analysis of the second and
third D.S.W. factors strongly favors not imposing a duty of care on
Our Lady.
          The fourth D.S.W. factor is the moral blameworthiness of
the defendant's conduct.  See D.S.W., 628 P.2d at 555.  The court's
opinion concedes "that Our Lady's conduct was not morally
blameworthy."  Op. at 14.
          The fifth D.S.W. factor is the policy of preventing
future harm.  See D.S.W., 628 P.2d at 555.  The superior court
reasoned that imposition of a duty would not prevent future harm. 
Op. at 16.  I agree.  As the court's opinion concedes, health care
facilities are "already required to satisfy high regulatory
standards"and "already owe[] tort or statutory duties to patients
and employees, the persons most directly threatened by inadequate
efforts to control infections."  Op. at 15.  It is therefore
unclear what more Our Lady can do to prevent future harm.  The
court's opinion suggests that Our Lady can discharge its duty to
its employees' spouses by advising employees of precautions to
avoid infecting themselves and their spouses.  Op. at 16.  For
staph, such precautions principally involve washing hands
thoroughly before and after examining a patient. [Fn. 10]  Thus, it
appears that under the court's analysis, Our Lady can discharge its
duty to employees' spouses by instructing employees to wash their
hands before and after examining patients.  Because this is already
the standard practice in health care facilities, including Our
Lady, [Fn. 11] it is hard to understand how extension of the
existing duty will have any effect on preventing future harm. 
          The sixth D.S.W. factor is the extent of the burden to
the defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach. [Fn. 12]  See
D.S.W. 628 P.2d at 555.  The court's opinion concludes that
"imposing a duty in favor of the spouses would not change Our
Lady's burden."  Op. at 15.  I believe there are at least three
ways in which the court's opinion creates a potentially onerous
burden.  
          First, as the Knier court noted, there is no logical
basis for limiting the class of third parties to whom a health care
provider such as Our Lady owes a duty of care.  See Knier, 500
N.Y.S.2d at 492.  Employees' spouses are no more likely to contract
a common infection such as staph from Our Lady's employees than are
other visitors to the facility or other people with whom the
employees come in contact.  Reason therefore dictates that the duty
of care owed by health care providers could extend to protecting a
potentially limitless circle of individuals.
          Second, as discussed above, the ubiquitous nature of
staph makes it impossible to identify the source of an individual's
infection.  See Roark, 415 So. 2d at 298-99.  Thus, the court's
opinion creates the potential that health care providers such as
Our Lady may be held liable for any infection contracted by any
visitor or employee's family member (or by any third party with
whom an employee or patient has contact) that conceivably could
have originated in the health care facility.  In other words,
health care providers may be held liable for common infections that
cannot be traced with any degree of certainty to their facilities. 
          Third, if Our Lady owes a duty to protect employees'
spouses from common infections such as staph, there is no reason
why it should not owe the same duty to protect them from other
widespread, relatively harmless ailments such as influenza or the
common cold that, like staph, are impossible to contain.  The
possibility that a health care provider's duty could be so broadly
construed cautions against imposing a duty.  In sum, the court's
opinion potentially exposes health care providers to liability to
a limitless circle of individuals for any number of widespread,
relatively harmless ailments that cannot be traced with any
certainty to the health care facilities.  Because this burden is
excessive, I believe analysis of the sixth D.S.W. factor militates
strongly against imposing a duty of care to protect employees'
spouses from common infections.
          Finally, the D.S.W. analysis requires consideration of
the availability, cost and prevalence of insurance to cover the
risk that an employee's spouse will contract an infection that
originated at Our Lady's facility.  See D.S.W., 628 P.2d at 555. 
Because the court's opinion for the first time expands liability to
protect employees' spouses from common infections, it is reasonable
to assume that insurance rates do not currently reflect the cost of
the risk.  The court's opinion will therefore at best increase the
cost of insurance for health care providers, and at worst create a
liability for which they cannot insure.  In either case, this
factor does not favor the imposition of liability.  
III. CONCLUSION
          No other jurisdiction has concluded that health care
facilities owe a duty to protect employees' spouses from staph or
other common infections that do not present a risk of serious harm. 
Such a duty has only been imposed in the case of rare or dangerous
diseases.  I would preserve the distinction. [Fn. 13]  Furthermore,
because it is impossible to establish causation between the
plaintiffs' injury and the defendant's conduct, because the court's
opinion will do little if anything to prevent future harm, and
because the defendant will potentially be exposed to unduly
burdensome liability, I believe that the D.S.W. factors do not
weigh in favor of imposing a duty under the circumstances presented
here.  I therefore respectfully dissent from the court's opinion.


                            FOOTNOTES


Footnote 1:

     Many of the circumstances discussed in Part II were first
asserted when plaintiffs moved for reconsideration after summary
judgment was entered against them; we assume for purposes of
discussion that no genuine dispute about those facts is material to
the narrow legal issue before us.  We rely on these assertions only
to set the stage for our discussion of the legal issue; they are
not dispositive of that issue.


Footnote 2:

          A staph infection is caused by staphylococci, a  common
type of bacteria.  These bacteria are one of the leading causes of
skin and soft tissue infections in the community and in a hospital
setting.  The bacteria invade through minor breaks in skin and
mucous membranes and often create abscesses with creamy, yellow
pus.  Medical tests can readily identify these bacteria.  The
prognosis for most staph infections is excellent.


Footnote 3:

          Scabies is a skin disease caused by infestation with
mites.  It is transmitted in hospitals primarily through intimate
direct contact with an infested person.  Treatment for scabies is
highly effective in preventing transmission and destroying the
mites.


Footnote 4:

     Our Lady also argued that (1) the exclusive liability
provision of the Alaska Workers' Compensation Act barred the
spouses' claims, and (2) there was no causal connection between the
spouses' injuries and the work environment at Our Lady.  The
superior court denied the motion on the exclusive liability issue.
It did not rule on the causation argument. 


Footnote 5:

     We applied equivalent factors in cases decided before D.S.W. 
See Transamerica Title Ins. Co. v. Ramsey, 507 P.2d 492, 495
(Alaska 1973) (identifying four of the seven D.S.W. factors);
Howarth v. Pfeifer, 443 P.2d 39, 42 (Alaska 1968) (identifying four
of the seven D.S.W. factors).  Howarth relied on two California
Supreme Court opinions concerning improperly prepared wills; in
both, the California Supreme Court found a duty of care in the
absence of privity.  Howarth, 443 P.2d at 42 n.6 (citing Lucas v.
Hamm, 364 P.2d 685 (Cal. 1961); Biankanja v. Irving, 320 P.2d 16
(Cal. 1958)).


Footnote 6:

     The parties argue about whether Our Lady failed to minimize
the spread of infectious disease and about the extent to which
patients and employees were infected.  Our Lady also argues that
infections such as staph are everywhere.  To the extent such
arguments relate to issues of breach of duty and causation, they
are not before us.  See Keeton, supra, sec. 53, at 356 ("What the
defendant must do, or must not do, is a question of the standard of
conduct required to satisfy the duty.").  To the extent Our Lady
argues that staph is so universal that, as a matter of law, Our
Lady owed no duty to Walter and Orlin, we consider its argument in
our analysis of the duty issue.

          We note that Our Lady does not argue that it owed no duty
to its employees and patients to minimize the spread of infectious
disease.  Our Lady instead states that "our . . . infection control
policies are designed 'to protect [facility] residents and
employees from the spread of infection.'"


Footnote 7:

     Courts have noted the foreseeability of the spread of
infections from patients to family members if doctors or hospitals
negligently fail to diagnose a disease or warn the patient of its
infectious nature.  See, e.g., Shepard v. Redford Community Hosp.,
390 N.W.2d 239, 241 (Mich. App. 1986) (concluding that patient's
son was foreseeable victim of hospital's negligence in failing to
diagnose patient's spinal meningitis); Skillings v. Allen, 173 N.W.
663, 664 (Minn. 1919) (concluding that it was foreseeable that
patient's parents would rely on doctor's advice concerning the
contagious nature of scarlet fever); see also DiMarco v. Lynch
Homes-Chester County, Inc., 583 A.2d 422, 424-25 (Pa. 1990)
(concluding that it was foreseeable that third person would rely on
information given to patient by doctor concerning the contagious
nature of hepatitis).  It is also foreseeable that employees will
infect spouses if the employer-hospital fails to control the spread
of infection or fails to warn employees of the danger of infection.

          We also note that it is the majority rule that treating
physicians should use reasonable care to protect third persons, in
addition to their patients.  See Chizmar v. Mackie, 896 P.2d 196,
208 (Alaska 1995) (stating with approval the majority rule that
physicians must use reasonable care to protect third persons from
foreseeable exposure to contagious diseases); see also Gammill v.
United States, 727 F.2d 950, 954 (10th Cir. 1984) (holding that in
contagious disease cases, a "physician may be found liable for
failing to warn a patient's family, treating attendants, or other
persons likely to be exposed to the patient, of the . . . danger of
exposure") (emphasis omitted).


Footnote 8:

     The parties disagree about the significance of Dr. Beirne's
opinion.  Given the narrow issues before us, we do not decide
whether Dr. Beirne's opinion is a valid expert opinion. 


Footnote 9:

     Information submitted by plaintiffs with their reconsideration
motion suggests that at least one public agency elsewhere requires
that the families of health care employees be notified if the
employees may have been exposed to a serious danger.  Marion
Gaudinski, an expert on infection control, affied that a county
health department in New Jersey has determined that it is the
employer's duty to call and warn families of employees exposed to
tuberculosis due to the facility's failure to follow regulations.


Footnote 10:

     Given this result, we need not consider the spouses' arguments
that the superior court erred in failing to enter separate
judgments, in awarding attorney's fees, and in denying their motion
for reconsideration. 



                       FOOTNOTES (Dissent)


Footnote 1:

     The infectious disease specialists who evaluated Bodhmati Oliver and Gwen Bolieu
attested to the ubiquity of staph.  Dr. Janis stated that "[u]p to 40% of normal people have
staphylococcus aureus in their nose."  Dr. Roberts stated that "[n]asal staph carriage will be
found in 20-40% of the adult population at any one time, and over a long period of time about
80% of the population will be found to be carriers at one time or another."  Their comments
are consistent with the medical literature on the subject. See, e.g., "Staphylococcal
Infections,"Red Book Report on Committee of Infectious Diseases, American Academy of
Pediatrics 423-26 (1994).


Footnote 2:

     See, e.g., Sommers v. Sisters of Charity of Providence, 561 P.2d 603, 605 (Or. 1977)
(noting that it is not always medically possible to eradicate staph bacteria from under the
surface of the skin).


Footnote 3:

     The court's opinion remarks in a footnote that "at least one public agency elsewhere
requires that the families of health care employees be notified if the employees may have been
exposed to a serious danger [tuberculosis]."  Op. at 17, n.9.  Again, the court's opinion
disregards the distinction between a serious danger such as tuberculosis and an infection of
a significantly less serious nature such as staph.


Footnote 4:

     See Garcia v. Santa Rosa Health Care Corp., 925 S.W.2d 372, 377 (Tex. App. 1996)
(holding health care professionals owed duty to inform patient's wife of patient's probable
infection with HIV); see also Reisner v. Regents of Univ. of Cal., 37 Cal. Rptr. 2d 518, 519
(Cal. App. 1995) (holding that physicians owed duty to patient's boyfriend to warn patient of
her HIV status and of dangers associated with the disease, even where physicians did not
know boyfriend existed).


Footnote 5:

     See Safer v. Estate of Pack, 677 A.2d 1188, 1192 (N.J. Super. App. Div. 1996)
(recognizing "narrow"duty of physician "to warn those known to be at risk of avoidable harm
from a genetically transmissible condition"invariably leading to cancer).


Footnote 6:

     See Bradshaw v. Daniel, 854 S.W.2d 865, 872 (Tenn. 1993) (recognizing duty of
physician to warn patient's wife of risk of exposure to Rocky Mountain Spotted Fever, a non-
contagious disease with 40 percent mortality rate if untreated, where clustering effect of
disease put family members at risk of contracting it).  The California Supreme Court has also
recognized the analogous duty of a psychotherapist to use reasonable care to protect an
intended victim when a "patient presents a serious danger of violence."Tarasoff v. Regents
of Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976).


Footnote 7:

     As the court's opinion notes, "[s]cabies is a skin disease caused by infestation with
mites.  It is transmitted in hospitals primarily through intimate direct contact with an infested
person.  Treatment for scabies is highly effective in preventing transmission and destroying
the mites."  Op. at 3 n.3.


Footnote 8:

     Although Roark and Sommers affirm findings of no negligence and therefore do not
address the question of duty, they underscore the difficulties of imposing a duty to protect
third parties from staph.


Footnote 9:

     Evidence presented in this case demonstrates the point.  While Dr. Beirne speculated
at the workers' compensation proceedings that Bodhmati Oliver's and Gwen Bolieu's staph
infections were work-related, other infectious disease specialists who evaluated Bodhmati
Oliver and Gwen Bolieu disagreed.  Op. at 3-4.


Footnote 10:

     See John N. Sheagren, Staphylococcus Aureus:  The Persistent Pathogen, 310 New
Eng. J. Med. 1437, 1441 (1984) (stating that "hand washing continues to be the primary way
of effectively preventing the spread of staph. aureus").  The Centers for Disease Control and
Prevention Guidelines refer to handwashing as "the single most important measure for
preventing spread of infection."Draft Guideline for Isolation Precautions in Hospitals, 59 Fed.
Reg. 55,551, 55,557 (1994).


Footnote 11:

     Our Lady's Universal Moist Body Substances - Isolation, Policy No. 240.057A requires
care givers to "[w]ash hands between each patient contact AND whenever you accidentally
contact moist body substances.  Be sure to wash hands before and after caring for EACH
patient even if you were wearing gloves."  Review of this policy is included in mandatory
training sessions for Our Lady's staff.


Footnote 12:

     I will only discuss the burden here.  As discussed in my analysis of the fifth D.S.W.
factor, I believe that extension of the duty will not prevent future harm.  Thus, I conclude
there will be no beneficial consequences to the community.


Footnote 13:

     Because the question of how uncommon or severe a disease must be before a duty is
imposed is not before us, it need not be answered here.