The Gist: Critics of this court’s action say that a physician now has a duty not only to a patient but also to foreseeable injured parties.

By Tommy Sangchompuphen, JD
for The Medical-Legal News

In a split opinion stemming from a 2002 fatal car accident, Massachusetts’ highest state court has potentially opened the door to a new breed of medical liability lawsuits by determining that doctors may be responsible for harm foreseeably caused to nonpatients.

On Dec. 10, 2007, the divided Supreme Judicial Court in Massachusetts in Coombes v. Florio reinstated a lawsuit against a doctor who was treating a 75-year-old cancer patient whose car struck and killed a 10-year-old boy. The man, now deceased, had finished his course of chemotherapy but was taking eight prescription medications for high blood pressure and other conditions at the time of the accident. The man’s doctor did not warn him of any potential side effects of these drugs or their effect on a patient’s ability to drive.

On the day of the accident, the man drove his automobile to do some errands. On his way home, he lost consciousness and his car left the road, hitting and killing the boy who was standing on the sidewalk with a friend.

The parents of the 10-year-old boy sued the physician in 2002, contending the physician should have known the man’s medicine created a dangerous situation which could have caused injury to innocent bystanders. The state’s lower court dismissed the parents’ lawsuit.

The Supreme Judicial Court reversed the lower court’s dismissal of the lawsuit, although the court did not rule on the validity of the parents’ negligence claims.

Instead, the court allowed the case to go forward, determining, as a matter of law, that a physician has a duty not only to the patient but also to foreseeable injured parties.

“Any duty that [the physician] owed to warn of the side effects of medication he prescribed extended not only to [the 75-year-old man], but to those whose injuries were foreseeably caused by the resulting accident,” Justice Roderick Ireland wrote for the court. “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.”

William G. Childs, an associate law professor at Western New England College School of Law in Springfield, Mass., said the divided court’s move is indicative of what is taking place elsewhere.

“Certainly overall, the trend both here [in Massachusetts] and nationwide is toward shrinking or elimination of no-duty doctrines, and this is of a piece with that trend,” Childs said. “So while it might be a bit surprising, it’s not shocking.”

Still, the court’s newest interpretation of the foreseeability principles of ordinary negligence are causing critics to assert that the opinion will raise the cost of medical treatment and undermine the quality of care.

Dissenting from the majority ruling, Chief Justice Margaret H. Marshall emphasized the “sweeping” change it would usher in, particularly expressing concern about the chilling effect it would have on medical practice. “The physician would be forever looking over his shoulder,” the chief justice wrote.

Childs agreed. “The potential legal exposure in many contexts is now massive rather than merely large,” he said. He cited other likely scenarios where an injured nonpatient could link a physician to his injuries under the court’s decision.

For instance, anyone who gets ill as a result of being exposed to someone whose physician negligently advised that the person was not contagious, anyone injured due to the side effects of medication negligently prescribed by the physician, and anyone injured by patients with a mental illness who are negligently treated are all instances, he said, where liability now potentially exists where it might not have before.

Still, Bernard Hamill, a trial lawyer in Quincy, Mass, is a bit more suspicious of the impact this case will have on plaintiffs’ cases.

“I don’t see it as expanding from a practical view the medical liability laws,” Hamill said, emphasizing that the case stemmed from an ordinary negligence case rather than a medical malpractice action. “The case has not yet been decided on its merits… and med mal cases are notoriously favorable in the percentage of doctor-friendly verdicts.”

Also, Hamill questioned the number of potential plaintiffs who would likely be affected under this decision.

“The class of plaintiffs is potentially very small,” he said. “In how many cases will you find a doctor negligently affirmatively telling a person to resume driving on meds and also fail to warn him of the meds’ side effects, and the patient then causes an accident and injures an innocent third party?”

In the end, Hamill said, “this decision will create a useful headline for the tort reform group but will not expose a large number of doctors to liability they don’t already have.”

“Doctors already have a non-delegable duty to warn their patients about drug reactions and in this case the doctor clearly did not do it according to the decision,” he said. “If he had done his job according to the old law, he would not be involved at all now.” • 

Tommy Sangchompuphen is a licensed attorney and legal writer based in Ohio. He is a graduate of the University of Minnesota Law School.