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March 2008 | Volume 44, Issue 3

Massachusetts doctors liable to third parties for failure to warn patients , Associate Editor

A physician owes a duty of reasonable care, under ordinary negligence principles, to everyone foreseeably put at risk by the doctor’s failure to warn a patient of the potential side effects of treatment, the Massachusetts Supreme Judicial Court has held.

Noting that courts in other states have imposed this duty in similar circumstances, the court reversed summary judgment and remanded for trial a case involving a doctor whose 75-year-old patient, not warned that his medications could impair his driving ability, lost consciousness behind the wheel of his car and fatally injured a child. (Coombes v. Florio, 877 N.E.2d 567 (Mass. 2007).)

The court said the duty arises “when the side effects in question include drowsiness, dizziness, fainting, or other effects that could diminish a patient’s mental capacity.”

“In the case of automobile accidents, it is clear that the foreseeable risk of injury is not limited to the patient,” the court said in a lead opinion by Justice Roderick Ireland.

The Massachusetts Academy of Trial Attorneys filed an amicus brief urging the court to find a duty of care to third parties. Marsha Kazarosian of Haverhill, president of the group at the time the brief was submitted, called the court’s ruling “extremely important” because it “opens the door for many victims to seek redress and maybe change the patterns and practices of physicians in giving warnings.”

Kazarosian said she expects courts in other states to take guidance from the decision because it is “very articulately and carefully written, very logical.” She emphasized that the ruling “doesn’t create an illogical duty—the principle is still foreseeability.”

At the time of the accident, the patient, David Sacca, had prescriptions from Dr. Roland Florio for Oxycodone, Zaroxolyn, Prednisone, Flomax, potassium, Paxil, Oxazepam, and Furose;mide. The potential side effects included various manifestations of altered consciousness and sedation.

Moreover, according to the plaintiff’s expert, the drugs’ sedating effects could be more severe in elderly patients; standard practice was to warn such patients of the potential effect on their driving abilities; and, when used in combination as they were prescribed for Sacca, the medications could cause “additive side effects” more severe than the side effects from individual use.

Florio did not warn Sacca of any potential side effects, and Sacca did not report any difficulties driving. But one day he lost consciousness at the wheel; his vehicle left the road and hit 10-year-old Kevin Coombes, standing on the sidewalk.

Sacca regained consciousness shortly after the accident and was taken to a nearby hospital. He later left against medical advice, and the cause of the accident was never determined. He died four months later.

Kevin’s estate sued Florio for negligently prescribing medication without telling Sacca about the possible side effects and without warning him not to drive. The trial court granted summary judgment for Florio, ruling that he could not be held liable to third parties. The state’s highest court, on its own motion, took the case from the intermediate appellate court and, in a divided opinion, reversed.

A majority of the justices agreed that summary judgment for the defendant was inappropriate, but there was strong disagreement as to the extent of a doctor’s duty to third-party nonpatients.

Ireland’s lead opinion concluded that Florio owed a duty to Kevin under ordinary negligence principles. The court had previously held that a doctor’s duty of reasonable care to a patient includes the duty to warn of medications’ side effects. When the side effects include diminished mental capacity, the warning serves to protect the patient from the foreseeable risks of operating a vehicle—and it was clear, the court said, that one foreseeable risk of a patient’s driving is that he or she might injure others. The court had already ruled, outside the medical context, that a duty can exist even when the injury results from the negligent conduct of an intermediary.

Relying on these principles, the three-justice plurality held 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.”

Courts in other states, including Hawaii and Maine, have reached similar conclusions, the court noted. It acknowledged, however, that some states disagree, and still others limit the doctor’s liability to third parties to situations in which the physician was directly administering the medications, a distinction the Massachusetts court rejected.

Public policy favors a duty to third parties in these circumstances, the plurality said. The justices noted that the burden on physicians of expanding the law is slight, in view of their existing duty to warn patients of medications’ side effects, and the benefits of the warnings are significant.

Concurring in part and dissenting in part, Justice John Greaney agreed that summary judgment was inappropriate on the facts but maintained that the plurality’s expansion of the duty to warn could not be supported by principles of ordinary negligence and went beyond what was necessary to resolve the case.

In separate dissents, Chief Justice Margaret Marshall criticized the lead opinion as conflating the duty to warn with the much more comprehensive duty of care, and Justice Robert Cordy worried that the expanded duty would interfere with the “highly personal, confidential physician-patient relationship, recognized since the time of Hippocrates.”

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