Mass. Supreme Court Expands Doctors’ Liability to Nonpatients

December 11, 2007

A Massachusetts physician is responsible to all third parties who might possibly be affected by his failure to warn a patient about the side effects of a medication, the Massachusetts Supreme Judicial Court has ruled in a 3-3 decision that has the state’s medical community concerned.

Until now, a physician’s liability for failure to warn stopped at the patient. But the state’s highest court this week extended that liability to encompass nonpatients and all “foreseeable” third parties.

In the opinion, Justice Roderick Ireland wrote that a physician owes a duty of care to “all those foreseeably put at risk by his failure to warn about the effects of the treatment he provides to his patients.”

Doctors are worried that this ruling might color a doctor’s decision of what medication to prescribe or what treatment to pursue out of fear of being sued.

One of the dissenting justices raised the specter of patients being handed a printout of possible side effects and things not to do as a result of this decision.

“How much do you warn people?” asked Dr. Dale Magee, president of the Massachusetts Medical Society, in criticizing the ruling.

The state’s physicians are also worried the new rule could affect their liability insurance rates, although a leading medical insurer says it’s too early to tell the insurance impact.

In the case, the mother of a man who was killed in a car accident caused by the patient of a Brockton doctor sued the physician for negligently prescribing a medication without warning his patient of the dangers posed by its side effects, and without warning him not to drive.

Kevin Coombes died of injuries after he was struck by an automobile driven by David Sacca, who was under the care of Dr. Roland Florio. The plaintiff claims that the accident was caused when the side effects of the medication Dr. Florio prescribed caused Sacca to lose control of the automobile.

A judge in the Superior Court granted Dr. Florio’s motion for summary judgment, on the ground that Dr. Florio owed no duty of care to anyone other than his own patient. The plaintiff appealed.

Ireland agreed with the plaintiff that Dr. Florio owed a duty to the accident victim under ordinary negligence principles.

“In the context of medical professionals, this court has held that a doctor’s duty of reasonable care, owed to a patient, includes the duty to provide appropriate warnings about side effects when prescribing drugs… When the side effects in question include drowsiness, dizziness, fainting, or other effects that could diminish a patient’s mental capacity, this warning serves to protect the patient from, for example, the foreseeable risk of an automobile accident caused by driving while under the influence of the medication. In the case of automobile accidents, it is clear that the foreseeable risk of injury is not limited to the patient,” Ireland wrote.

He cited similar cases outside the medical field, including where liquor stores and bartenders have been held responsible to pedestrians, bicyclists and other motorists injured by their intoxicated patrons.

“Relying on those same principles, I conclude that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient,” Ireland wrote.

Medical Society President Dr. Magee said the liquor store and bartender analogies are inappropriate for a number of reasons, including the fact that when liquor clerks or bartenders sell to an intoxicated person, the customer is physically there in front of them— which is not the case for doctors whose patients are taking medications out of their office.

Ireland also cited cases in Maine and Hawaii where courts have imposed a duty on doctors in circumstances similar to this case.

Ireland dismissed the concern that this liability rule could affect a doctor’s decisions on prescriptions or treatment. He contended that any consequence would be minor because the duty is limited to warning of the effects of treatment and does not include a doctor’s duty to use due care when deciding what to prescribe or pursue for treatment.

As to whether the new rule might affect doctors’ liability insurance rates, the court said it is up to the Legislature to decide if that is a problem and whether to impose further limits on doctors’ liability.

ProMutual, one of the biggest insurers for doctors in the state, said while it’s concerned about the impact of the ruling on medical professionals, it’s too early to tell how insurance might be affected.

ProMutual did note, however, that the ruling does not apply to the actual care provided to the patient, but rather to the scope of liability for physicians.

Dr. Magee thinks it’s hard to see how it won’t cost doctors more in insurance. “It opens up an entire new arena for lawyers to go after doctors,” he said.

But the medical society leader did take up Ireland on the suggestion for legislation to narrow doctors’ liability.

“I would hope we are able to pursue that,” Dr. Magee said.

In her dissent, Chief Justice Margaret Marshall maintained that the decision “conflates ‘duty to warn’ with the much more comprehensive ‘duty to care’ and thus vastly enlarges the field of physician liability.”

In another dissent, Justice Robert Cordy warned that the opinion’s logic extends into not just whether a doctor gave a warning but into the substance and adequacy of that warning as well.

“Is the doctor to tell a patient whenever a medication is prescribed that might in some circumstance cause drowsiness or fainting, ‘Do not drive. Do not hold your grandchild. Do not carry grocery bags to your car. In fact, do not do anything that involves interacting with another person?’ Or will the patient now routinely be handed a printout of all possible side effects of any medication prescribed by the doctor and be asked to read and sign it in the physician’s office, as a substitute for a discussion more tailored to the physician’s judgment about what the patient’s situation requires and what the patient needs to know in order to make an informed decision?” Cordy wrote.

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