Updated: Expansion of Duty for Doctors in Massachusetts

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 carephysician in 1999. By 2002, when the accident occurred, Sacca wasseventy-five years old and had been diagnosed with a number of seriousmedical conditions including asbestosis, chronic bronchitis, emphysema,high blood pressure, and metastatic lung cancer that had spread to hislymph nodes. . . .  Shortly after the cancer was diagnosed, in July, 2000,Dr. Florio warned Sacca that it would not be safe for him to driveduring his treatment for cancer. Sacca obeyed the warning and did notdrive until the fall of 2001, when treatment for his cancer concluded.At that time Dr. Florio advised Sacca that he could safely resumedriving.

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 ofthe drugs include drowsiness, dizziness, lightheadedness, fainting,altered consciousness, and sedation. . . . According to the plaintiff’sexpert, when used in combination these drugs have the potential tocause “additive side effects” that could be more severe than sideeffects resulting from separate use. The plaintiff’s expert also opinedthat the sedating effects of these drugs can be more severe in olderpatients, and that the standard of care for a primary care physicianincludes warning elderly or chronically ill patients about thepotential side effects of these drugs, and their effect on a patient’sability to drive. Dr. Florio did not warn Sacca of any potential sideeffects. Before the accident occurred Sacca reported no side effectsfrom the medication and had no trouble driving. Sacca’s last visit toDr. Florio before the accident was on January 4, 2002. At that visit,Dr. Florio did not discuss potential side effects and gave no warningabout driving.

On the day of the accident, March 22, 2002, Sacca drove his automobileto do some errands. On his way home he lost consciousness and hisautomobile left the road and hit Coombes, who was standing on thesidewalk 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 ofreasonable care to everyone foreseeably put at risk by his failure towarn 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., supraat 307-309, the court held that a doctor owed a duty to a person killedin an automobile accident caused by the doctor’s patient who wasdriving after taking medication prescribed for him by the doctor. Thecourt reasoned that “a logical reason exists to impose upon physicians,for the benefit of third parties, a duty to advise their patients thata medication may affect the patient’s driving ability when such a dutywould otherwise be owed to the patient.” Id. at 308. [additional cites]

* * *

Sound public policy also favors a duty in these circumstances. Thecosts of imposing a duty owed to individuals other than a patient arelimited because existing tort law already imposes on a doctor a duty towarn 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 aheavy burden because it requires nothing from a doctor that is notalready 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, supraat 333. Meanwhile, the benefits of such warnings are significant. Theyserve to protect the public from the very harm that creates theparallel duty to the patient, the foreseeable risk that known sideeffects 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 thebenefit of third parties foreseeably put at risk by an uninformedpatient’s decision to drive alters neither the physician’s medicaldecision to prescribe medication, nor the physician’s legal duty underthe Cottam decision to warn the patient about adverse side effects. Because the foreseeable risk of dangerthat the patient faces (here, death or bodily injury due to a motorvehicle accident) is the identical risk that the physician mayanticipate others, such as the plaintiff’s son, to encounter, there canarise no conflict of professional interest. Contrast Spinner v. Nutt,417 Mass. 549, 553-554 (1994) (lawyer’s primary duty owed to clientbars imposition of secondary duty owed to third parties). Theimposition of liability for a failure to warn a patient rests on aphysician’s superior knowledge of the risks (to the patient and toothers) involved, and the physician’s professional responsibility toensure that a patient understands the risks involved in takingprescribed 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 ofdoctors. It impedes the work of our courts. On remand, the trial judgeis left the unenviable task of divining from the vague generalizationsof the concurring opinions the outer limits of a novel duty ofphysicians to third-party nonpatients. Because I agree with the trialjudge that the physician’s liability does not extend to the third-partydecedent in this case, I would uphold the grant of summary judgment inDr. Florio’s favor, and not leave it to trial judges to puzzle theirway through this thorny issue of public policy.

Updated to note discussion at Overlawyered and Decisionism.  The Globe has coverage too.

–BC