(dissenting).
This case reaches us on an appeal from an order sustaining a motion to dismiss plaintiff’s petition as to the defendant Dr. Merwin R. Dieckmann. Of course, we accept the well-pleaded facts as true in determining whether the petition states a cause of action against the doctor.
It is alleged Dr. Dieckmann negligently told his patient (defendant Norman F. Lemmon) he could safely drive an automobile despite an earlier “seizure,” a condition for which he had sought Dr. Dieck-mann’s medical help. From this, the majority holds Dr. Dieckmann may be responsible to those injured in a subsequent automobile accident allegedly occurring because defendant Lemmon again blacked out.
No authority is cited to support such a result, and I dissent from it.
Until rather recent times, plaintiff’s petition would have been summarily dismissed on the ground there was no duty owing from Dr. Dieckmann to her — no privity upon which to base liability. The privity concept has been greatly weakened, if not completely scrapped, when circumstances exist from which it is apparent the wrongdoer should have anticipated reliance by a third party upon his conduct and which present facts making it manifestly unfair to allow him to escape responsibility for his negligence. No case, however, has carried that doctrine to the extreme which the majority does here. I believe that the consequences of the majority opinion are both far-reaching and indefensible.
This whole subject received extended discussion by then Chief Judge Cardozo in the New York case of Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139 (1931). That case involved a third-party claim against an accountant who was alleged to have been negligent in the preparation of a financial statement *582for a firm which had employed him for that purpose. That opinion has been both widely cited and roundly criticized. See Ryan v. Kanne, 170 N.W.2d 395, 401 (Iowa 1969) and Rusch Factors, Inc. v. Levin (D.C., Rhode Island, 1968), 284 F.Supp. 85, 90 and citations. Nevertheless, that opinion, which refused to extend an accountant’s liability for negligent misconduct to persons the accountant had no reason to believe would rely on his statement, contains observations which are even more persuasive under the circumstances now facing us than they were in 1931 when that case was decided.
Several excerpts from that opinion are worth repeating:
“If liability for negligence [of an accountant to third parties] exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences.” (174 N.E. at 444) (Emphasis added).
In distinguishing Glanzer v. Shepard, 233 N.Y. 236, 238, 135 N.E. 275, 23 A.L.R. 1425 (1922) from the Ultramares case, Judge Cardozo pointed out that in Glanzer the act which was negligently performed was for the very purpose of furnishing a weight certificate to the complaining party. It was the “end and aim of the transaction” and both principals to the transaction knew this. (174 N.E. 445.)
Another significant statement made by Judge Cardozo appears at page 448 of 174 N.E.:'
“Liability for negligence'if adjudged in this case will extend to many callings other than an auditor’s. Lawyers who certify their opinion as to the validity of municipal or corporate bonds, with knowledge that the opinion will be brought to the notice of the public, will become liable to the investors, if they have overlooked a statute or a decision, to the same extent as if the controversy were one between client and advisor. Title companies insuring titles to a tract of land, with knowledge that at an approaching auction the fact that they have insured will be stated to the bidders, will become liable to purchasers who may wish the benefit of a policy without payment of a premium. These illustrations may seem to be extreme, but they go little, if any, farther than we are invited to go now. Negligence, moreover, will have one standard when viewed in relation to the employer, and another and at times a stricter standard, when viewed in relation to the public.”
We considered an analogous problem in Ryan v. Kanne, supra, a suit against an accountant who had certified an erroneous financial statement which was then relied upon by the purchaser of the business. The accountant knew the purpose for which the statement was prepared and even knew the persons to whom it was to be submitted. He also knew that it was to be used in connection with the sale of a business and that it would be relied upon by those negotiating a transfer of the business.
This-court recognized in Ryan the problem which now faces us by refusing to extend the rule beyond the circumstances directly at issue in the Ryan case. We said there:
“In other words, we believe the position announcement in the Restatement proposed draft [section 552, Torts 2d] may be accepted to the extent that it extends the right to recover for negligence to persons for whose benefit and guidance the accountant knows the information is intended, especially when the party to be benefited is identified before the statement or report is submitted by the ac*583countant.” (170 N.W.2d at page 403). (Emphasis in original).
I believe there are grave consequences in adopting a doctrine which imposes unlimited liability against physicians who may have negligently advised or treated their own patients. No case has been cited, and I have been unable to find any, which even approaches in scope and importance the public policy disadvantages which the majority opinion entails.
Although the principle may be the same, these public policy considerations have infinitely greater impact when applied to doctors than to others. Be that as it may, however, the general principle itself has occasioned a word of caution from both courts and writers. In Harper and James, The Law of Torts, (1956), section 18.6 at page 1052, the authors in discussing the general proposition of extending a duty to remote third persons say this:
“The ultimate question is whether such a duty should be imposed as a matter of policy. This in turn will depend on the balancing of several factors, namely, the burden it would put on defendant’s activity; the extent to which the risk is one normally incident to that activity; the risk and the burden to the plaintiff; the respective availability and cost of insurance to the two parties; the prevalence of insurance in fact; the desirability and effectiveness of putting the pressure to insure on one rather than the other, and the like. A judicious regard for such realistic considerations might justify liability in some situations and not in others even where there is no basis in doctrine for such a distinction.” (Emphasis in original.)
A case note in 20 Drake Law Review, 411, 416 (January 1971) in discussing our Ryan v. Kanne decision mentions the limits on liability imposed there as follows:
“These limitations appear to be both usable to the accountants and the court and yet remain fair to the accountants and innocent third parties. If, however, the courts interpret this holding as authority for substantially increased liability for not only the accounting profession but also ‘other recognized professions’, then perhaps a return to the protection of privity would be advisable.”
A similar caveat is voiced in the annotation in 45 A.L.R.3d, 1181-1205 (1972), which deals with the liability of attorneys. There the annotator says at 1185:
“It is submitted that neither the strict privity doctrine, with its potential for unrecompensible injury to innocent parties, nor a complete abandonment of privity, entailing a vast range of potential liability, presents a workable solution to the question of an attorney’s liability to third parties. Rather, it would appear that the issue should be determined, on a case by case basis, by the balancing of a number of factors, including the extent to which the transaction involved the third party, the foreseeability of harm to the third party, the closeness of the connection between the negligence and the injury suffered, and the policy of preventing future harm.”
See Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 19 (1958) and Donald v. Garry, 19 Cal.App.3d 769, 97 Cal.Rptr. 191, 45 A.L.R.3d 1177 (1971); cf. Anno. 45 A.L.R.3d 979 (1972).
The present case involves serious and far reaching consequences to many businesses and professions. We recognized that the rule adopted in the Ryan case “may be applicable in other recognized professions, such as abstractors and attorneys.” (170 N.W.2d 402).
The public policy considerations inherent ■in this rule under any circumstances become of overriding importance when applied to medical practitioners. It is impossible to resolve the issue without taking into account the crisis which confronts us as to both the availability and cost of adequate health care. See 57 I.L.R. 1004, *5841006 (April 1972). Today’s opinion, if permitted to stand, can only aggravate an already grave problem, which finds medical help frequently unavailable at all and its cost, when it is available, fast reaching prohibitive amounts.
This opinion will have several immediate untoward results. It will cause physicians, when possible, to shun cases exposing them to such limitless liability or their advice will be ultraconservative in justified apprehension over the fate which awaits them if they give what might otherwise have been sound medical counsel.
Furthermore, if such liability is to be borne by the medical profession, the already oppressive cost of medical attention must be further increased. No matter how this is accomplished — by insurance or without it — it is the patient who must ultimately pay.
I also desire to note my disagreement with the special concurring opinion in which Justice Uhlenhopp says plaintiff pleads a cause of action under section 311(1) (b), Restatement of Torts 2d. That section is set out in the special concurrence.
I cannot agree that the doctor’s alleged advice as set out in the petition can be said to have been “false” any more than a lawyer’s incorrect prediction as to the outcome of litigation is “false.” This is the type of statement to which neither falsity nor verity attaches. The section relied on has no application under the pleaded facts.
The special concurrence relies on two cases, neither of which meets the issue. In both Jones v. Stanko, 118 Ohio St. 147, 160 N.E. 456 (1928) and Skillings v. Allen, 143 Minn. 323, 173 N.W. 663 (1919) the court was dealing with contagious diseases. The doctor in each case personally told the third party involved that it was safe to come in close association with the disease. The third party in each case relied on the representations the doctor had made to him and upon which the doctor knew he would act. To that extent these cases are much like Glanzer v. Shepard and Ryan v. Kanne, both of which have been previously referred'to.
I would affirm the trial court on two grounds. First, there is no authority to support the conclusion reached by the majority; and, second, public policy considerations make such an imposition of limitless liability indefensible.
MOORE, C. J. and MASON and RAWLINGS, JJ., join in this dissent.