WHERE DOES THE PHYSICIAN’S DUTY TO WARN END?

By Charla Bizios Stevens

On December 10, 2007 the Supreme Judicial Court of Massachusetts decided the case of Coombes v. Florio, which effectively extends a prescribing physician’s duty to warn of the side effects of medical treatment to third parties with no relationship with the physician. The facts of the case were tragic. Roland J. Florio was the primary care physician for David Sacca, a seventy-five year old man diagnosed with a number of serious illnesses including emphysema, chronic bronchitis, asbestosis, end stage lung cancer and high blood pressure. On March 22, 2002, Sacca, after taking a combination of several prescribed medications, was driving and lost consciousness. His vehicle left the road and struck ten year old Kevin Coombes, who was standing by the side of a road with a friend. Coombes died as a result of the accident-related injuries. Sacca’s condition deteriorated following the accident, and he died four months later.

The estate of Kevin Coombes filed suit against Florio alleging that his failure to warn Sacca of the side effects of the medication he was taking constituted negligence, that the doctor’s duty to warn extended to individuals such as Coombes who might forseeably be harmed as a result and that Florio should pay damages to compensate for the boy’s death. The trial court granted summary judgment in favor of the doctor finding that the physician’s duty did not flow to third parties and was limited to those with whom he had established a physician patient relationship. The appeal to Massachusetts’ highest court followed.

The court overturned the trial court’s decision in favor of the physician and decided that the case could proceed to trial before a jury. The opinion of the court in extending the duty to third parties was less than unanimous, perhaps a sign of recognition that the impact of the decision would be far-reaching.

It is well established that the duty of reasonable care medical professionals owe to patients includes a duty to provide adequate warnings about the side effects of medications. In this case Sacca was being treated by a number of specialists for his conditions, and Florio had taken on the role of coordinating that care and managing the many medications being taken. The potential side effects included drowsiness, dizziness, fainting, or other effects which could diminish mental capacity. Florio had a duty to warn of the side effects which could have impacted Sacca’s ability to drive safely. The court concluded that the foreseeable risk of injury was not limited to the impaired driver and therefore found that the duty extended to other motorists, bicyclists, and pedestrians.

The court compared the case to others outside the context of medical care. Examples given included a liquor store being held liable for a party injured by an impaired minor to whom the store sold beer, a forklift owner being held liable for negligently leaving a key in the ignition allowing a drunken individual to steal the forklift and drive over the foot of a bystander and the owners of a bar being held liable for over serving a patron who later caused a collision with another vehicle. Similarly, the court had no problem with the imposition of liability on a homeowner for failing to properly store her gun which was taken by her son and used to kill a police officer. Relying on the principles which gave rise to liability in these cases, the court concluded that a jury might legitimately find Florio liable for failure to warn Sacca of the side effects of the medications. The majority of the court believed that the additional burden being placed on the physician was not a heavy one since it did not require him to do any more than he was already required to do for his patient.

The justices who dissented from the decision raised several concerns. First, the argument was made that the decision might impede the work of doctors in caring for their patients by perhaps requiring them to disclose every potential side effect of the treatment they prescribed (as opposed to those they deem relevant and necessary), to open up their discussions with their patients to the scrutiny of third parties, and to restrict them from prescribing certain therapies out of fear of such scrutiny. Clearly, the potential impact on the physician-patient relationship is there. The concern was also raised about the potential for clogging the courts with a host of lawsuits brought by third parties who might be impacted by the treatment being rendered to patients.

In the event the Coombes matter proceeds to trial before a jury, there are a number of issues which will determine whether or not Florio is actually found liable for the injuries. There seemed to be no dispute that Florio had not warned Sacca of the side effects of the medications or the risks associated with driving a motor vehicle while taking them. In fact, Florio had warned Sacca not to drive while he was undergoing chemotherapy, an instruction with which he complied, and then later told him it was safe to resume driving once the chemotherapy ended. However, Sacca’s last visit with Florio before the March 22 accident was on January 4. Between those dates Sacca had safely driven his vehicle on many occasions and had not suffered any of the adverse side effects. Finally, Sacca was taken to the hospital after the accident and discharged himself against medical advice. He was never therefore sufficiently examined in order to establish the cause of his losing consciousness and control of his vehicle.

Although the decision in this matter raises cause for concern for physicians, there are many factors which go into a determination of whether or not one party is liable for injuries to another. Thorough discussion of potential side effects and documentation of those discussions should go a long way toward limiting such concerns.

Charla Bizios Stevens is an attorney in the Health Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at 603-628-1363 or charla.stevens@mclane.com. The McLane Law Firm is the largest law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.