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| But SJC can't agree on scope of duty owed to non-patient By Eric T. Berkman The mother of a boy who was struck and killed by a car could sue the driver's doctor for failing to warn the driver of the risk of operating a motor vehicle while taking medication he had been prescribed, the Supreme Judicial Court has ruled. A Superior Court judge had granted summary judgment for the defendant physician, finding that he owed no duty of care to anyone other than his own patient. But the SJC reversed. "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," wrote Justice Roderick L. Ireland in the lead opinion, which justices Judith A. Cowin and Francis X. Spina joined In a concurring opinion, Justice John M. Greaney agreed with the result in the case but criticized the broad nature of Ireland's plurality opinion. "I cannot agree … with the proposition that liability in such a case is justified by principles of ordinary negligence," wrote Greaney. "This concept is incorrect and leads Justice Ireland … to the sweeping conclusion that physicians owe a legal duty of care to virtually everyone who may come in contact with one of his or her patients." The 48-page decision is Coombes v. Florio, Lawyers Weekly No. 10-194-07. 'Straightforward' vs. 'unusual' Plaintiff's counsel Peter L. Eleey of Quincy said the decision "was very straightforward" in stating that when a physician prescribes medications to a patient, he has a responsibility to warn the patient of potential side effects. "If that patient is not given a warning and proceeds to go out and drive into a tree, the patient has a cause of action against the doctor," Eleey continued. "So it seems to me that if there is a child standing in front of the tree, which is foreseeable, then the child should also have a cause of action against the physician." Eleey also brushed off notions, suggested in dissenting opinions by Chief Justice Margaret H. Marshall and Justice Robert J. Cordy, that the ruling would change the nature of the physician-patient relationship by diverting doctors' focus from the immediate concerns of their patients to an undefined pool of third parties who might potentially be deemed foreseeable victims by a court. "Doctors are already supposed to be discussing the side effects with the patient under current standards," Eleey said. He added that if the ruling heightens a doctor's vigilance in discussing side effects with patients — particularly elderly patients with complicated medical histories — it has performed a service to the public "in light of the almost weekly or monthly accidents we hear about involving elderly drivers with complicated medical conditions driving into sidewalks, buildings or innocent bystanders." Edward F. Mahoney of Boston, who represented the defendant, said it was too early to tell what the ramifications of the opinion would be. But "the unusual nature of the decision, with no majority opinion, shows there was sharp disagreement among the justices on this difficult issue," he said. "Many arguments and concerns we raised were well-articulated in the dissents of both Chief Justice Marshall and Justice Cordy." Harmful side effects In July 2000, David Sacca, a patient of Dr. Roland Florio, the defendant, was diagnosed with cancer. The defendant warned Sacca that it would be unsafe to drive during his treatment. Sacca obeyed the defendant's warnings and did not operate a motor vehicle until the fall of 2001, when his treatment ended and the defendant told him it was safe to start driving again. In March 2002, Sacca — then 75 years old and suffering from assorted additional ailments — lost control of his car and struck and killed 10-year-old Kevin Coombes. At the time of the accident, Sacca was taking a battery of drugs prescribed by the defendant. Potential side effects of the various drugs included drowsiness, dizziness, fainting, and altered consciousness and sedation, according to the plaintiff's expert, and they were more severe when the drugs were taken in combination than when taken separately. The defendant, however, had apparently never warned Sacca of these potential side effects. The boy's mother sued the defendant in Superior Court, alleging that the doctor was negligent in failing to provide Sacca with such warnings and that such negligence breached his duty toward people who could potentially be harmed as a result. Judge Elizabeth B. Donovan granted summary judgment for the defendant, finding that there was no special relationship between the defendant and the boy, so the defendant owed him no duty. The plaintiff appealed, and the SJC transferred the case from the Appeals Court on its own motion. Broad rule Though a majority of SJC justices found that the plaintiff's suit should have been allowed to proceed, they disagreed on how far a doctor's duty to third-party non-patients should extend. In his concurring opinion, Ireland, joined by Cowin and Spina, espoused a broad rule that a physician owes a duty of reasonable care to anyone foreseeably put at risk by his or her failure to warn of the side effects of his or her treatment of a patient. Ireland applied this duty under ordinary negligence principles, comparing the case to non-medical cases decided by the SJC in the past. "Outside the medical context, when the foreseeable risk in question is the risk of an impaired driver causing an automobile accident, we have extended a duty of reasonable care to all those involved in such a foreseeable accident," said the judge, referencing the court's 1983 decision in Michnik-Zilberman v. Gordon's Liquor, Inc., which applied liability to a liquor store after it sold beer to a minor who then struck and injured a cyclist. Ireland also compared this case to the SJC's 2006 decision in Jupin v. Kask, where the court found that a homeowner could be held liable for the shooting death of a police officer after she failed to secure a gun collection that her live-in boyfriend kept in her basement. Her boyfriend's son used one of the guns in the slaying. "The homeowner owed a duty to the police officer who was shot because the harm the officer suffered was a foreseeable consequence of the homeowner's risk-creating conduct," said Ireland. The judge further defended his broad imposition of a duty on doctors toward third parties on policy grounds. "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," said the justice. "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." Unknown 'precautionary duty' But Greaney, in a separate concurrence, said Ireland's opinion went too far. The plaintiff merely sought damages for the defendant's alleged failure to warn of the potential danger of driving while taking particular medications, and the ruling should be limited to exactly that scenario, the judge observed. "For this court to grant more than the requested relief, by creating a precautionary duty previously unknown in common law, would be extraordinary," said Greaney. "To equate a physician's prescribing of medication to 'unreasonably dangerous' conduct, similar to serving alcohol to minors … or to the reckless storage of firearms …, is an immoderate and indefensible characterization of the medical profession, and one that … impermissibly intrudes on the traditional physician-patient relationship held virtually inviolate since the time of Hippocrates," the judge continued. In his dissent, Cordy expressed concern that the broad standard advanced by Ireland could negatively alter the nature of the physician-patient relationship. "A nuanced communication between doctor and patient works well … where a doctor's concern is focused solely on what, in his or her judgment, the patient's own situation requires," he said. "With his or her attention now, necessarily, also directed elsewhere, however, the doctor may, understandably, become less concerned about the particular requirements of any given patient, and more concerned with protecting himself or herself from lawsuits by the potentially vast number of persons who will interact with and may fall victim to that patient's conduct outside of the treatment setting." |