Sinoracki v. Children’s Serv. Ctr. of Wyo. Valley, 2023 Pa. Super. LEXIS 411 (September 19, 2023) (Murray, J.) At a young age, Z.H. was diagnosed with an inoperable arteriovenous malformation (“AVM”) in the left occipital region of his brain. An AVM is an abnormal tangle of arteries and veins that can develop in the brain and cause neuropsychological disturbances, including schizophrenic and erratic psychotic behavior. Since his diagnosis, Z.H.’s AVM increased in size, causing vision problems, increased headaches, and pain.
On September 11, 2016, Z.H.’s father saw his son leave the front porch and driveway moments before … Z.H. entered the Sinoracki family’s home and violently assaulted Bobbi Jo, Megan, and David [Sinoracki] with a kitchen steak knife. … Shortly thereafter, Z.H.’s father entered the Sinoracki family’s home and forcibly restrained [Z.H.] on a chair in the living room. The police responded to the scene and took Z.H. into custody. Ultimately, David Sinoracki succumbed to his injuries.
1. Did the trial court err in dismissing [Appellant’s] negligence claims against Dr. Khan on the ground that he owed no duty applicable to this case under common law, where the record establishes that Dr. Khan undertook to provide medical professional services to [Z.H.] for the protection of others, both generally and as relates to [Appellant], and therefore Dr. Khan undertook a corresponding duty of care under Pennsylvania law?
2. Did the trial court err in dismissing [Appellant’s] negligence claims against the Center on the ground that it owed no duty applicable to this case under common law, where the complaint alleges that the Center undertook to provide professional services to [Z.H.] for the protection of others, both generally and as relates to [Appellant], and therefore the Center undertook a corresponding duty of care under Pennsylvania law?
The crux of this appeal is whether Defendants owed a duty to the Sinoracki family.
Under Pennsylvania law, when a physician voluntarily undertakes to act within the doctor-patient relationship for the protection of a non-patient third party, the physician assumes a corresponding duty of reasonable care to any third party who is within the orbit of harm.
The Pennsylvania Supreme Court has stated that Emerich v. Philadelphia Ctr. for Human Dev., 554 Pa. 209, 720 A.2d 1032 (Pa. 1998), is the “seminal case setting forth a mental health professional’s duty to warn third parties.” Maas, 234 A.3d at 437. The Emerich Court “concluded the special relationship between a patient and mental health professional may, in limited circumstances, give rise to an affirmative duty to warn a third party of potential harm caused by his patient.” Id. at 437-38 (citation omitted).
The Emerich Court began its legal analysis by observing the general common-law rule stating there is no duty to control the conduct of a third party to protect another from harm. Emerich, 720 A.2d at 1036. Emerich recognized an exception to that rule: “where a defendant stands in some special relationship with either the person whose conduct needs to be controlled or in a relationship with the intended victim of the conduct, which gives to the intended victim a right to protection.” Id. (citing Restatement (Second) of Torts § 315 (1965)). Relying in part on Tarasoff [v. Regents of Univ. of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334, 340 (Cal. 1976)], the Emerich Court concluded the special relationship between a patient and mental health professional may, in limited circumstances, give rise to an affirmative duty to warn a third party of potential harm caused by his patient. Id. at 1037.
Notably, the Emerich Court further held “the circumstances in which a duty to warn a third party arises are extremely limited.” Id. at 1040. Before the therapist’s duty is triggered, the patient must communicate a “specific and immediate threat” against “a specifically identified or readily identifiable victim.” Id. [(emphasis added).] … The Emerich Court noted, “as a practical matter, a mental health care professional would have great difficulty in warning the public at large of a threat against an unidentified person. Even if possible, warnings to the general public would produce a cacophony of warnings that by reason of their sheer volume would add little to the effective protection of the public.” Id. at 1041 [(citation and quotations omitted).]
Maas, 234 A.3d at 437-38 (footnote omitted).
In DiMarco, our Supreme Court considered whether a physician owes a duty of care to a third party where the physician fails to properly advise a patient who has been exposed to a communicable disease, and the patient, relying upon the advice, spreads the disease to a third party.
When a physician treats a patient who has been exposed to or who has contracted a … contagious disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease. … The patient must be advised to take certain sanitary measures…. Such precautions are … taken to safeguard the health of others. Thus, the duty of a physician in such circumstances extends to those “within the foreseeable orbit of risk of harm.” Doyle v. South Pittsburgh Water Co., … 414 Pa. 199, 199 A.2d 875, 878 ([Pa.] 1964).
DiMarco, 583 A.2d at 424 (emphasis and paragraph break omitted).
We agree with Defendants’ assessment of DiMarco, Troxel, and Matharu v. Muir, 2014 PA Super 29, 86 A.3d 250 (Pa. Super. 2014) (en banc)as distinguishable and unavailing. Rather, we are persuaded by this Court’s decision in F.D.P. Ex Rel S.M.P. v. Ferrara, 2002 PA Super 223, 804 A.2d 1221 (Pa. Super. 2002).
[Plaintiffs] invite us to apply the rationale in a line of cases imposing liability on a physician for failing to properly advise a patient who has a communicable disease when the patient relied upon the improper advice and spread the disease to a third party. DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990); Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71, 675 A.2d 314 (1996).
Those cases  are specifically limited to their circumstances and impose liability due to the peculiar nature of communicable diseases, which involve a direct threat to public health. Under the reasoning employed in those cases, liability is premised upon the physician’s awareness that his advice concerning the communicable disease is directly relevant to its spread to third parties. Thus, the duty is imposed because “it is imperative that the physician give his or her patient the proper advice about preventing the spread of the disease.” DiMarco, 583 A.2d at 424. Moreover, those cases impose the duty pursuant to Restatement (Second) of Torts, § 324A, which relates to an actor who renders services under conditions where the actor should recognize that the services are necessary for the protection of a third person. Mental health services are provided for the protection of the patient. Furthermore, mental health patients do not have a disease that is communicable to the public nor do they present a peculiar threat to the public. The reasoning of those cases is not applicable herein.
The trial court’s reasoning is supported by the record and law. See id.; see also Maas, 234 A.3d at 439 (limiting tort liability to “readily identifiable” “potential targets”). As Appellant failed to establish that Defendants owed the Sinoracki family a duty of care, we conclude the trial court did not err in granting Dr. Khan’s motion for summary judgment and CSC’s motion for judgment on the pleadings. See Ferrara, supra; Emerich, 720 A.2d at 1036 (generally, there is no duty to control the conduct of a third party to protect another from harm); Troxel, 675 A.2d at 321 (“without a finding of duty, the issue of breach of duty cannot be submitted to the jury.”).