Medical Malpractice Liability to Third Parties

On Monday, the Supreme Judicial Court of Massachusetts overturned the dismissal of a lawsuit filed by a woman against a physician who had failed to warn his patient of the side effects of a medication. These side effects had caused the patient to lose consciousness at the wheel and kill the woman’s 10 year-old pedestrian son. The driver had recently had treatment for cancer and had been told by his doctor that he could safely resume driving while on his medication. (He had stopped driving for a period of time.) The mother sued, alleging that the doctor failed to warn his patient, the driver, of the possible side effects of drowsiness, dizziness, and altered consciousness.

The lower court had dismissed the lawsuit, claiming that the physician had a duty to his patient only, not to third parties. The Supreme Judicial Court disagreed and found that the doctor’s duty extended to anyone who could be harmed by his failure to warn his patient about the drug’s side effects. This ruling greatly widens the scope of duty of physicians when choosing treatment options for their patients and perhaps necessitates a wider discussion of possible side effects when prescribing medications. The case will now return to the lower court and be tried on the issue of the doctor’s negligence (the dismissal was on the basis of standing to bring the lawsuit in the first place).

This is a very sad case. The driver was 75 years old and suffered from lung cancer, chronic bronchitis, high blood pressure and emphysema. At the time of the crash, he had finished his cancer treatment but was still on many medications. He died of cancer shortly after the accident. A ten-year old boy lost his life when he was in the wrong place at the wrong time. It does not get much more awful than that.

Obviously, if the duty of care a doctor has to his patient is widened to include third parties, it will be seemingly impossible to imagine the number of persons, like the ten-year old boy, who will fall into this scope. Will doctors in this doctor’s position now have to tell their patients not to drive at all for fear of harm being caused to some third parties if any of the side effects arise and an accident ensues? Or will it be enough just to inform them of the side effects? I don’t know but I think it is a question for the jury.

It will be interesting to see what the Massachusetts legislature does with this issue, because the legislature, as it has been prone to do, can pass laws limiting physicians’ liability. I hope they don’t. The politics of limiting the liability of doctors for medical malpractice cases notwithstanding, the court’s rule in this case is consistent with the more modern view of ignoring privity and focusing on allowing actions in negligence by individuals or groups within a foreseeable zone of danger of the negligence. Clearly, in this case, this ten year-old boy was a foreseeable victim of the doctor’s alleged negligence.

A quick search for a Maryland case on point came up empty, but this holding is consistent with the Florida Supreme Court’s ruling in Pate v. Threlkel, 661 So. 2d 278, 278 (Fla. 1995), which found that “when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician’s duty runs to those third parties.” Id. at 1168.

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  • DocOrion

    It may have another effect; that of decreasing the willingness of physicians to prescribe narcotic pain medicines and anti-anxiety medications, since those are the most prescribed medications which cause drowsiness.

    I can’t agree with the court (on less legal grounds and more ‘this just doesn’t sound right to me’ grounds) that a physician has a duty to warn all possible parties of a drug’s side effects. How would this be instantiated? Do we give the patient a bell and a clapper, and require him to shout ‘drowsy’ as he walks or drives along? Give him a scarlet letter to wear? Require the physician to admit the patient to a hospital or other care facility until he is no longer on the medicine? How does this work? It simply doesn’t pass a test of reasonableness.

    (Full disclosure: the writer is a physician in practice in MA)

  • Ron Miller

    It is really not a duty to warn issue with respect to the third parties. The duty is to warn the patient. If the patient is not warned as to the side effects of the medications they take, they the doctor, in my opinion, should be responsible.

    You have to remember, too, the posture of the case. The only question is can the boy’s family bring a wrongful death claim. We are a long way from a jury finding liability on the part of the doctor. This is one of the reasons I specifically did not offer the doctor’s name. I have not idea what the merits of the case are. They only question this case answers is, theoretically, can a claim be brought assuming negligence.

    I don’t think that doctors are going to change treatment practices all that much because I tend to think doctors spend 99.9% of their energies caring for their suffering patients and .1% of their time worrying about liability issues. Okay, I should have assigned a value for getting paid by the insurance companies, but you get the idea.

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