I cannot agree with my colleagues that the common law of this State does not impose upon a *359physician a duty of care extending to the spouse of a patient who is stricken with tuberculosis as the result of the physician’s negligent failure to properly diagnose the patient. I conclude that when a physician negligently fails to diagnose a patient’s tuberculosis, the physician’s common-law duty of care extends to a spouse who resides with the patient, and the spouse may recover under a theory of negligence if consequently stricken with the disease as a result of that negligence. As such, I respectfully dissent.
Initially, I note my agreement with the majority’s conclusion that the defendant did not owe the wife a statutory duty pursuant to Public Health Law § 2222 or 10 NYCRR 2.27 (i.e., the State Sanitary Code). Unlike the legislative bodies of some sister States, our Legislature did not vest physicians with a duty to warn members of a patient’s household when the physician merely suspects, or has reason to suspect, that tuberculosis is present (see, Pa Stat Annot, tit 35, § 521.4; Tenn Code Annot, § @8-9-201). It is singularly within the province of the Legislature to determine whether to extend the statutory duty so as to render it applicable to instances where a diagnosis has not been made (see, e.g,, Tenuto v Lederle Labs., 207 AD2d 541).
However, while mapping the boundaries of a statutorily created duty is the responsibility of the Legislature (see, Tenuto v Lederle Labs., supra), defining the scope of a common-law duty is clearly an issue to be resolved by the judiciary. As noted by the majority, the courts of many jurisdictions have recognized that the duties created by the existence of a physician-patient relationship are not owed exclusively to the patient (see, e.g., Bradshaw v Daniel, 854 SW2d 865 [Tenn]; DiMarco v Lynch Homes-Chester County, 384 Pa Super 463, 559 A2d 530, affd 525 Pa 558, 583 A2d 422; Shepard v Redford Community Hosp., 151 Mich App 242, 390 NW2d 239; Gooden v Tips, 651 SW2d 364 [Tex]; Bradley Ctr. v Wessner, 161 Ga App 576, 287 SE2d 716; McIntosh v Milano, 168 NJ Super 466, 403 A2d 500; Tarasoff v Regents of Univ. of Cal., 17 Cal 3d 425, 551 P2d 334; Hofmann v Blackmon, 241 So 2d 752 [Fla]; Renslow v Mennonite Hasp., 67 111 2d 348, 367 NE2d 1250). In New York jurisprudence, the courts have, on occasion, extended a physician’s duty of care to a nonpatient third party (see, Miller v Rivard, 180 AD2d 331; Wojcik v Aluminum Co., 18 Misc 2d 740). Moreover, the Court of Appeals and this Court have each specifically recognized, albeit in dictum, that a physician may owe a duty of care to a class of persons *360other than the patient (see, Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 9; Eiseman v State of New York, 70 NY2d 175, 188; Rebollal v Payne, 145 AD2d 617). Indeed, in Purdy v Public Adm’r of County of Westchester (supra, at 9), the Court of Appeals stated that "A physician’s duty of care is ordinarily one owed to his or her patient. With respect to the physician-patient relationship giving rise to a duty owing to members of an indeterminate class of persons, we have only recently stated in the context of a physician reporting to a college admissions office the results of a physical examination of an applicant to the college that 'the physician plainly owed a duty of care to his patient and to persons he knew or reasonably should have known were relying on him for this service to his patient’, but that the physician did not 'undertake a duty to the community at large’ (Eiseman v State of New York, 70 NY2d 175, 188, supra)” (emphasis added). This principle is embodied in Restatement (Second) of Torts § 324 A, which although not cited in either Purdy (supra), Eiseman (supra), or Rebollal (supra), has been adopted as part of the common law in the State (see, Miller v Rivard, 180 AD2d 331, 337, supra; see also, Jansen v Fidelity & Cas. Co., 165 AD2d 223, 228 [Levine J., dissenting]).
Restatement (Second) of Torts § 324 A, entitled "Liability to Third Person for Negligent Performance of Undertaking”, provides as follows:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
"(a) his failure to exercise reasonable care increases the risk of such harm, or
"(b) he has undertaken to perform a duty owed by the other to the third person, or
"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
In Miller v Rivard (supra), the Appellate Division, Third Department, relied upon this section in extending a physician’s duty of care to a vasectomy patient’s wife who alleged that she became pregnant as a result of the physician’s negligent performance of the vasectomy (see also, DiMarco v Lynch Homes-Chester County, 384 Pa Super 463, 559 A2d 530, *361affd 525 Pa 558, 583 A2d 422, supra [applying Restatement (Second) of Torts § 324 A within the context of a physician-patient relationship]). It is my view that the principle embodied in subdivision (a) of Restatement (Second) of Torts § 324 A applies in this case to extend the defendant’s duty of care to the wife. If, as alleged by the plaintiffs, the defendant was negligent in failing to diagnose the husband’s tuberculosis, then it can be said that (1) he should have recognized that his services were necessary for the protection of the wife, and (2) his failure to exercise reasonable care increased the risk of physical harm to the wife, who has alleged that she continually resided with her husband at the time he fell ill (cf., Britton v Soltes, 205 Ill App 3d 943, 563 NE2d 910 [physician’s failure to diagnose patient’s tuberculosis did not result in liability to patient’s family because patient was divorced and living apart from his family at the time he fell ill]).
Furthermore, the principle embodied in subdivision (c) of Restatement (Second) of Torts § 324 A is likewise applicable in this case because if it is proven that the defendant committed malpractice in failing to diagnose the husband’s tuberculosis, and if the defendant was aware that the wife resided with the husband, then the defendant should have been aware that the wife was relying on him for his services to the husband (see generally, Eiseman v State of New York, supra, at 188; Miller v Rivard, supra, at 337).
In light of the foregoing, I conclude that under the facts of this case the defendant owed a common-law duty of care to the wife, which required him to warn her of the presence of tuberculosis in her husband and advise her regarding the precautions and preventative measures to be taken to guard against her becoming afflicted with the disease.
Contrary to the majority’s conclusion, the imposition of this common-law duty upon the defendant would not "expand traditional tort concepts beyond manageable bounds and create an almost infinite universe of potential plaintiffs” (Widera v Ettco Wire & Cable Corp., 204 AD2d 306, 307). I am mindful of the fact that in determining whether one member of society owes a common-law duty of care to another, the judiciary is "bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that 'the legal consequences of wrongs [are limited] to a controllable degree’ ” (Waters v New York City Hous. Auth., 69 NY2d 225, 229, quoting Tobin v Grossman, 24 NY2d 609, 619). To this end, I share the majority’s concern that a physician who *362treats a patient, particularly one suspected of suffering from a highly communicable disease, not be held liable to an indeterminate class of persons conceivably injured as a result of any negligence committed by the physician. The duty which I believe the common law of this State imposes upon the defendant does not extend to the community at large, but rather extends only to the limited class of people situated as is the wife herein.
In addition, the public policy concerns manifest in cases concerning the diagnosis of highly communicable diseases compel the result which I suggest. In an age blighted by the increasing number of tuberculosis cases, the prevention and control of this highly communicable disease, as well as others, is of the utmost importance to the health and welfare of the citizenry. Consequently, I do not see the logic in demarcating the boundaries of a physician’s common-law duties in such a manner that the negligent failure to render a proper diagnosis would inure to the physician’s benefit by absolving him or her of liability to those directly injured by the act of negligence. Such is the practical effect of the majority’s decision. That is, had the defendant diagnosed the plaintiff patient’s tuberculosis, he would have clearly been charged with a duty to exercise reasonable care in advising and warning the plaintiff wife of the dangers of the disease (see, Public Health Law §2222; 10 NYCRR 2.27). To hold that no such duty exists where there has been a negligent failure to diagnose the highly communicable disease would effectively reward the physician for failing to discover that which should have been discovered (see, Hofmann v Blackmon, 241 So 2d 752, supra). Such an anomalous result would certainly not further the remedial aims of tort law.
In reaching this conclusion, I am in accord with Justice Spodek, who in denying the defendant’s cross motion to dismiss the second and fourth causes of action, reasoned as follows: “If the jury in the instant case finds that the defendant committed malpractice in failing to diagnose the existence of tuberculosis in John Ellis, then any distinction between a defendant physician being aware and having 'discovered’ the disease and a defendant who legally should have been aware or should have discovered the disease is insignificant, artificial and of no consequence. In other words, if the plaintiffs prove a case of malpractice for failure to diagnose tuberculosis, then it follows inexorably that the defendants [sic] should have known of the existence of the tubercular *363condition of the plaintiff and with the acquisition of such knowledge comes the duty to inform the patients [sic] spouse. Hence, a finding of liability by a jury against the defendant in this action would automatically impute a legal duty between the physician and plaintiff-wife Joan Ellis” (emphasis in original).
Accordingly, I would affirm the order appealed from.
Copertino, J. P., and Florio, J., concur with Santucci, J.; Pizzuto, J., dissents in a separate opinion.
Ordered that the order of the Supreme Court is reversed, on the law, without costs or disbursements, the motion by the plaintiffs to strike the defendant’s fifth and sixth affirmative defenses is denied, the defendant’s motion to dismiss the second and fourth causes of action is granted, and the matter is remitted to the Supreme Court, Kings County, for entry of a judgment dismissing the plaintiffs’ second and fourth causes of action.