Tuesday, December 11, 2007
In an opinion with potentially broad implications, the Supreme Judicial Court here in Massachusetts has ruled (click on Coombes v. Florio) that a physician issuing a prescription has a duty not just to the patient but also to foreseeable injured parties. The facts:
Dr. Florio became Sacca's primary care physician in 1999. By 2002, when the accident occurred, Sacca was seventy-five years old and had been diagnosed with a number of serious medical conditions including asbestosis, chronic bronchitis, emphysema, high blood pressure, and metastatic lung cancer that had spread to his lymph nodes. . . . Shortly after the cancer was diagnosed, in July, 2000, Dr. Florio warned Sacca that it would not be safe for him to drive during his treatment for cancer. Sacca obeyed the warning and did not drive until the fall of 2001, when treatment for his cancer concluded. At that time Dr. Florio advised Sacca that he could safely resume driving.
At the time of the accident Sacca had prescriptions from Dr. Florio for Oxycodone, Zaroxolyn, Prednisone, Flomax, Potassium, Paxil, Oxazepam, and Furosemide. Potential side effects of the drugs include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. . . . According to the plaintiff's expert, when used in combination these drugs have the potential to cause "additive side effects" that could be more severe than side effects resulting from separate use. The plaintiff's expert also opined that the sedating effects of these drugs can be more severe in older patients, and that the standard of care for a primary care physician includes warning elderly or chronically ill patients about the potential side effects of these drugs, and their effect on a patient's ability to drive. Dr. Florio did not warn Sacca of any potential side effects. Before the accident occurred Sacca reported no side effects from the medication and had no trouble driving. Sacca's last visit to Dr. Florio before the accident was on January 4, 2002. At that visit, Dr. Florio did not discuss potential side effects and gave no warning about driving.
On the day of the accident, March 22, 2002, Sacca drove his automobile to do some errands. On his way home he lost consciousness and his automobile left the road and hit Coombes, who was standing on the sidewalk with a friend.
Coombes died from his injuries.
The majority, while recognizing that a number of cases go the other way due to concerns about excessive liability, concludes that ordinary negligence principles of foreseeability are sufficient to protect defendants.
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. [case citations]
Courts in other jurisdictions have imposed a duty on doctors in circumstances similar to this case. In McKenzie v. Hawai'i Permanente Med. Group, Inc., supra at 307-309, the court held that a doctor owed a duty to a person killed in an automobile accident caused by the doctor's patient who was driving after taking medication prescribed for him by the doctor. The court reasoned that "a logical reason exists to impose upon physicians, for the benefit of third parties, a duty to advise their patients that a medication may affect the patient's driving ability when such a duty would otherwise be owed to the patient." Id. at 308. [additional cites]
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Sound public policy also favors a duty in these circumstances. The costs of imposing a duty owed to individuals other than a patient are limited because existing tort law already imposes on a doctor a duty to warn a patient of the adverse side effects of medications. See Cottam v. CVS Pharmacy, supra, citing McKee v. American Home Prods. Corp., 113 Wash.2d 701, 709 (1989). The duty described here does not impose a heavy burden because it requires nothing from a doctor that is not already required by his duty to his patient. See McKenzie v. Hawai'i Permanente Med. Group, Inc., supra at 306; Hardee v. Bio-Med. Applications of S.C., Inc., supra; Burroughs v. Magee, supra at 333. Meanwhile, the benefits of such warnings are significant. They serve to protect the public from the very harm that creates the parallel duty to the patient, the foreseeable risk that known side effects of a drug will impair a patient's ability to drive. See McKenzie v. Hawai'i Permanente Med. Group, Inc., supra at 307; Burroughs v. Magee, supra at 332-333.
A second opinion (concurring in part and dissenting in part) disagrees that the duty should be so broad, but concludes that in this case, summary judgment was inappropriate, focusing on the fact that the alleged failure to warn related to precisely the same time of risk.
Extending the scope of liability for the benefit of third parties foreseeably put at risk by an uninformed patient's decision to drive alters neither the physician's medical decision to prescribe medication, nor the physician's legal duty under the Cottam decision to warn the patient about adverse side effects. Because the foreseeable risk of danger that the patient faces (here, death or bodily injury due to a motor vehicle accident) is the identical risk that the physician may anticipate others, such as the plaintiff's son, to encounter, there can arise no conflict of professional interest. Contrast Spinner v. Nutt, 417 Mass. 549, 553-554 (1994) (lawyer's primary duty owed to client bars imposition of secondary duty owed to third parties). The imposition of liability for a failure to warn a patient rests on a physician's superior knowledge of the risks (to the patient and to others) involved, and the physician's professional responsibility to ensure that a patient understands the risks involved in taking prescribed medications.
And two dissents reject the notion entirely, arguing that the majority ruling is mucking up the doctor-patient relationship too much to be acceptable. From the first one:
Today's result impedes not only the work of doctors. It impedes the work of our courts. On remand, the trial judge is left the unenviable task of divining from the vague generalizations of the concurring opinions the outer limits of a novel duty of physicians to third-party nonpatients. Because I agree with the trial judge that the physician's liability does not extend to the third-party decedent in this case, I would uphold the grant of summary judgment in Dr. Florio's favor, and not leave it to trial judges to puzzle their way through this thorny issue of public policy.