Tort law.

• Author: Leonardo, Thomas J.
• Position: Duty of care to third parties - Massachusetts

Extending Physician's Duty of Care to Third Parties for Breach of Duty Owed to Patient-Coombes v. Florio, 877 N.E.2d 567 (Mass. 2007) A successful negligence action requires a plaintiff to prove that the defendant owed a duty of care and then breached that duty by creating an unreasonable risk of harm. (1) Physicians owe patients a duty to inform them of the consequences of proposed medical treatment due to the nature of the physician-patient relationship. (2) In Coombes v. Florio, (3) the Massachusetts Supreme Judicial Court (SJC) examined whether a physician's duty of care extends to third parties harmed by the physician's failure to warn a patient of a prescribed medication's side effects. (4) The court concluded that a physician owes a duty of reasonable care to any individual foreseeably put at risk by the physician's failure to warn his or her patients. (5)

On March 22, 2002, seventy-five-year-old David Sacca lost consciousness while driving his car, causing him to veer off of the road and kill ten-year-old bystander Kevin Coombes. (6) Shortly after the accident, Sacca regained consciousness in a nearby hospital; doctors could not determine the precise cause of his blackout. (7) At the time of the accident, Sacca suffered from serious illnesses including asbestosis, chronic bronchitis, emphysema, high blood pressure, and metastatic lung cancer. (8) As part of his treatment, Sacca's primary-care physician, Dr. Roland Florio, prescribed a number of medications including Oxycodone, Zar.oxolyn, Prednisone, Flomax, Potassium, Paxil, Oxazepam, and Furosemide. (9) The drugs' potential side effects include lightheadedness, drowsiness, dizziness, fainting, altered consciousness, and sedation. (10) At trial, Sacca's medical expert contended that the aggregate effect of these medications, combined with Sacca's old age, exacerbated the drugs' side effects and caused him to lose consciousness. (11)

Dr. Florio began treating Sacca in 1999 and was responsible for managing all of his prescribed medication. (12) In July 2000, Dr. Florio warned Sacca that he should not drive during his cancer treatment. (13) Sacca obliged until the fall of 2001, when Dr. Florio informed him that it was safe to begin driving again. (14) Subsequently, Dr. Florio never warned Sacca about the side effects of any medications that he prescribed. (15)

The administratrix of Kevin Coombes's estate sued Dr. Florio on the theory that he negligently failed to warn Sacca about the medications' known side effects. (16) The Massachusetts Superior Court granted Dr. Florio's motion for summary judgment on the narrow reasoning that a physician-patient relationship does not impose a duty upon doctors to control their patients' actions. (17) The SJC reversed and remanded, holding that a physician's duty of care includes the duty to warn patients of proposed treatment; this duty extends to parties foreseeably put at risk by the physician's failure to warn. (18)

An essential component of a negligence claim is whether an alleged tortfeasor owes his or her victim a duty of care. (19) In general, one whose affirmative action creates an unreasonable risk assumes a duty of care to protect other individuals from any resulting harm. (20) Conversely, a person who fails to perform an act does not assume a duty of care, even if the act is necessary to protect another. (21) As a means of alleviating the consequences of this harsh rule, courts often impose an affirmative duty to act for the benefit of another when a "special relationship" exists between the parties. (22) Additionally, courts impose duties of care based on existing and desired social policies. (23) Factors that judges consider include the foreseeability of harm, the benefits of imposing the duty, the burden that the duty places on the defendant, and the administrative problems encountered when enforcing the duty. (24)

In the medical context, a doctor owes a duty of care to his or her patient by virtue of the physician-patient relationship. (25) The doctrine of informed consent is integral to this relationship, requiring a doctor to explain the risks and benefits of any proposed medical treatment so that the patient may make an educated treatment decision. (26) Accordingly, courts impose a duty on physicians to warn patients about the side effects of medication. (27)

Determining whether a physician's liability extends to third parties foreseeably placed at risk of harm is a contested issue that has received varying treatment among jurisdictions. (28) Tennessee, New Mexico, Kansas, and Illinois refuse to extend physician liability by discounting the foreseeablity of harm to third parties and citing public-policy considerations. (29) Other jurisdictions, such as Hawaii, South Carolina, and Washington, recognize physician liability to third parties by expanding the duty to warn based on either a foreseeability or social-policy analysis. (30) Another method of establishing such liability is through the application of general third-party liability principles. (31) Furthermore, some jurisdictions, like Hawaii, New Mexico, Washington, and Maine, only extend a physician's duty in limited contexts, such as when a doctor directly administers the medication or when a patient has no knowledge of the medication's side effects. (32)

Recognizing its authority to derive a physician's duty of care, the SJC in Coombes reasoned that physicians have a duty to inform based both on the nature of the physician-patient relationship and the foreseeability that an automobile accident injuring other parties might occur. (33) The court not only considered its own precedent concerning liability to remote defendants, but also the rulings of other jurisdictions establishing a physician's duty to at-risk third parties. (34) As a result, the court concluded that the social benefit of protecting the public from a preventable harm outweighs the potential burden of increased litigation. (35) The dissent, however, asserted that the extension of physician liability to third parties weakens the physician-patient relationship because it requires the dissemination of confidential communications to interested litigious parties and hinders the professional discretion of physicians. (36) In support of this proposition, the dissent criticized the majority's application of third-party liability cases and argued that the physician-patient relationship does not constitute a "special relationship" because it is not based on either control or statutory obligation. (37)

The SJC in Coombes inappropriately broadened a physician's duty to any injured third party for the failure to warn about any foreseeably risky treatment by relying on precedent from other jurisdictions and failing to acknowledge the limitations of liability imposed by those courts. (38) For example, the court...