The Physician’s Legal Duty to Non-Patients

The Massachusetts Supreme Judicial Court recently decided that, in limited circumstances, a physician’s legal responsibility may extend to individuals other than his or her patients. The decision in Coombes v. Florio, 450 Mass. 182 (2007) raises important practical and public policy concerns because it recognizes the potential for a negligence claim to be brought against a physician by a complete stranger to the treatment relationship.

In Coombes, the Supreme Judicial Court (SJC) issued an unusual plurality decision consisting of four separate opinions. By a bare majority, the SJC reversed the trial court’s dismissal of an action that had been brought against a physician who allegedly failed to warn his patient of the potentially dangerous side effects of prescribed medications. The lawsuit was brought on behalf of a child killed by an automobile driven by the patient: a 75-year-old man with multiple serious health problems, including asbestosis, chronic bronchitis, emphysema, high blood pressure, and metastatic lung cancer. The plaintiffs claimed that the patient became unconscious and lost control of his automobile as the result of the side effects of various medications prescribed to him by the physician. The potential side effects of these drugs included drowsiness, dizziness, fainting, altered consciousness, and sedation; and the plaintiff’s expert witness opined that the drugs had the potential for more severe side effects when used in combination and that the sedative effects of the drugs can be more severe in older patients. The plaintiffs sued the physician for damages resulting from the child’s death, alleging that the physician negligently failed to warn his patient of the potentially dangerous side effects of the drugs and that he did not give his patient any warnings about the danger of driving while using the medications.

In deciding that the case should be allowed to proceed, a majority of the SJC rejected the physician’s argument that he owed a duty of care that extended only to his patient. These justices agreed that, under some circumstances, a physician’s failure to warn his or her patient of known potentially dangerous side effects of prescribed medication can result in liability to third-parties who are foreseeably injured as the result of the physician’s failure to give such warnings.

Significantly, the decision reflects a sharp division of opinion within the SJC with respect to whether, and to what extent, a physician should be exposed to liability to non-patients. Three of the justices agreed with the broad proposition 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.”Coombes, 407 Mass. at 190. One justice agreed with the decision to permit the case to proceed, but expressed a more limited view that the physician’s duty of care, including the duty to warn, is owed only to the patient. But, that justice wrote, liability for a failure to warn may extend to third parties who are forseeably injured by potentially dangerous side effects of prescribed medication, such as drowsiness or loss of consciousness, that are known to the physician but unknown to the patient, and which may pose dangers to others if the patient were to operate a motor vehicle while under the influence of the prescribed medication. That justice emphasized that a physician’s ability to present treatment options to a patient in accordance with the physician’s independent professional judgment could be compromised by broadly extending the physician’s duty of care to unrelated third-parties, but that extending the scope of liability to benefit others foreseeably put at risk by the patient’s decision to drive is not problematic where the foreseeable risk of danger to the patient is identical to the foreseeable risk to others. Coombes, 407 Mass. at 196-197, 200-201. Two justices dissented from the outcome of the case, pointing out that expanding the scope of a physician’s liability to include third-parties would improperly interfere with the highly personal and confidential physician-patient relationship. Coombes, 407 Mass. at 201-213.

As a result of the division of opinion within the SJC, the impact of the Coombesdecision on physician liability to non-patients is unclear. As one of the justices expressly pointed out, the question of a physician’s duty to another person can only be determined on the basis of the specific factual situation before the Court.

Nevertheless, the potential liability created by the Coombes decision illustrates the importance of clear patient communication and careful documentation, particularly in the context of prescribing medications with potentially dangerous side effects. In the wake of Coombes, physicians would be well-advised to document a discussion of risks with their patients whenever a prescribed medication or combination of medications presents a risk of potentially dangerous side effects, including a warning that the side effects of the medication(s) could impair the patient’s ability to drive or operate machinery safely. In fact, it would not be unreasonable to have the patient sign an acknowledgement of having been so warned when the patient’s ability to drive or operate machinery safely are likely to be affected by prescription medication(s).