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Legal Report: A Physician Duty to Non-patients


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Legal Report: A Physician Duty to Non-patients

By Tom A. Augello, CRICO

Related to: Ambulatory, Communication, Cures Act: Opening Notes, Emergency Medicine, Primary Care, Medication, Obstetrics, Other Specialties, Surgery

MA high court offers mixed ruling on whether a doctor is liable for patients who injure a third party after getting a prescription medication.

 Guest Commentators

  • Philip Murray, Jr., JD; Murray, Kelly & Bertrand, PC; Woburn, MA



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. Boston defense attorney Philip Murray of the Boston law firm Murray, Kelly and Bertrand, has more…in the following Legal Report.

[Philip Murray, Jr., JD]
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 the Coombes decision the state Supreme Court reversed a trial court’s dismissal of an action brought against a primary care physician who allegedly failed to warn his patient of the potentially dangerous side effects of prescribed medications.

While a bare majority of the Court agreed that the claim against the primary care physician should be allowed to proceed to trial, the decision was unusual in that the majority issued two separate opinions that did not agree on the proper legal basis for the claim. In addition, two dissenting opinions expressed the view that the case should not be allowed to proceed at all.

The lawsuit was brought by the mother and the estate of a child who died after being struck by an automobile driven by the patient. The patient was 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 accident occurred because the patient became unconscious and lost control of his automobile as the result of the side effects of various medications that his physician prescribed. The potential side effects of these drugs included drowsiness, dizziness, fainting, altered consciousness and sedation. The plaintiff’s expert witness said 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 and the risks of driving while using the medications.

In deciding that the case should be allowed to proceed, a majority of the Court rejected the physician’s argument that his potential liability extended only to his patient. But the majority was divided about the legal reasoning behind the extended liability. Three of the justices decided that the case should proceed on principles of ordinary negligence based on 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."

One justice agreed with the decision to permit the case to proceed, but expressed a more limited view. He said that the physician’s duty to warn of risks presented by prescribed medications is owed only to the patient. But a breach of that duty can create liability to a third party who is foreseeably injured as a result of a patient’s decision to drive under the influence of the medication if the side effects are known to the physician but unknown to the patient.

That justice emphasized that a physician’s ability exercise independent professional judgment in presenting treatment options to a patient could be compromised by broadly extending the physician’s duty of care to unrelated third-parties and creating two separate and potentially conflicting duties. But he concluded that, in this case, extending the scope of liability to benefit a third party is not problematic where the foreseeable risk of danger to the patient was identical to the foreseeable risk to others.

Two justices dissented from the outcome of the case altogether. They argued 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.

The case now goes to trial, and the trial court will be presented with the difficult task of attempting to reconcile the conflicting approaches taken by the Supreme Judicial Court.

As a result of this division of opinion among the members of the Court, it remains to be seen whether the Coombes decision will have a significant impact on physician liability. As one of the justices expressly pointed out, the extent of a physician’s duty to another person can only be determined on the basis of the specific factual situation before the Court.

Still, 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. This should include a warning that the side effects of the medication 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 warned when the patient’s ability to drive or operate machinery safely are likely to be affected by prescription medication.

For "Resource," This is Philip Murray.

January 1, 2008
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