Massachusetts judge allows liability claim by plaintiff who was not a patient

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Dec. 11, 2006.

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A Massachusetts judge's recent refusal to dismiss a medical liability claim that a man filed against a physician he had never met or received treatment from is the second in less than 12 months in that state to open doctors to these types of actions.

Taken together, the two rulings demonstrate a willingness to extend a physician's duty beyond the patient-physician relationship to nonpatients under certain circumstances.

In October, Superior Court Judge Peter W. Agnes Jr. refused to dismiss a lawsuit against a physician whose patient lost control of his car and struck the plaintiff, who was riding a motorcycle.

According to court documents, the plaintiff, Jeremy Arsenault, sued Peter C. McConarty, MD, alleging that Dr. McConarty discharged Israel Ortiz from the hospital without warning him about the potential risks of taking antiglycemic medications when blood sugar levels are low. About 45 minutes after Ortiz was discharged, he lost consciousness as a result of low blood sugar, crossed the center line of traffic and struck Arsenault.

Dr. McConarty asked the court to dismiss the lawsuit because he did not have a physician-patient relationship with Arsenault and did not owe him a duty of care. Arsenault, however, argued that Dr. McConarty owed him a duty of care because Massachusetts' law has started to lean toward the idea that people have a duty not to do something "that expose[s] others to unreasonable and foreseeable risks of harm," according to court documents.

In rejecting Dr. McConarty's motion to have the lawsuit dismissed, Agnes noted that Massachusetts has not adopted the principle that a person is liable to another simply as a result of doing something that he or she "realizes or should have realized" creates "an unreasonable risk of causing physical harm" to another.

However, Agnes noted, the state has recognized that a duty can sometimes exist through a "special relationship" between a person and an injured third party. He ruled that there was a "special relationship" between Dr. McConarty and Arsenault and that the lawsuit should go to trial.

The duty to the third party "will turn on whether social values, customs and public policy lead the Supreme Judicial Court to find that a special relationship existed between the [person] and the injured third party," Agnes said in his opinion.

Earlier case expanded duty definition

In finding that a special relationship existed between Dr. McConarty and Arsenault, Agnes relied on a December 2005 Massachusetts Superior Court judge's ruling that also established a special relationship between a physician and a plaintiff who was injured by that physician's patient.

In that case, Judge Ralph Gants allowed a neurosurgeon to be added as a defendant. The driver of the car that struck the plaintiff was being treated by the physician for a brain tumor.

In his ruling, Gants pointed to four categories in which a "special duty" has been found in Massachusetts case law:

  • When an individual does something that creates or increases the risk that a person will harm a third party.
  • When there is a special relationship between the defendant and an identifiable limited class of people that includes the plaintiff.
  • When there is a special relationship between the defendant and the third person who commits the harmful conduct.
  • When, in certain circumstances, public employees have a special relationship with the general public.

After extensive analysis, Gants noted that the neurosurgeon's relationship to the plaintiff didn't fit neatly into the four categories but contained elements of each and would not dismiss him from the lawsuit.

In Arsenault, Agnes ruled that the basis for finding a special duty was even stronger. The neurosurgeon had not prescribed medication to his patient, and the court still found a duty owed to the plaintiff; Dr. McConarty allegedly prescribed Ortiz diabetes medications that lower blood sugar. Agnes also noted that Arsenault is also alleging that Dr. McConarty discharged Ortiz without warning him about driving.

Agnes ruled that the Massachusetts Supreme Judicial Court would find a special relationship in these circumstances and that "a jury could find that Dr. McConarty's failure to warn his patient about the risks of taking the diabetes medication on the day in question was the proximate cause of the accident."

Agnes also rejected arguments that extending Dr. McConarty's duty to Arsenault would open the door to a new category of medical liability claims against doctors that would be limitless. He wrote in his ruling that the duty Arsenault claims he was owed could have been fulfilled by Dr. McConarty warning Ortiz not to drive, which is advice a doctor prescribing that medication should provide.

In addition, Agnes noted that the court "fully appreciates that doctors cannot be insurers of highway safety, and that there is no basis in our existing social values, customs or considerations of public policy to impose such an unreasonable burden on physicians."

But in a case such as this one, he said, as long as a physician provides his patient with an appropriate warning in accordance with the applicable standard of care, the doctor has a duty to the public, including an injured third party such as Arsenault.

Because Dr. McConarty has significant expert support in his defense, he has decided to go to trial rather than appeal Agnes' decision not to dismiss the case, Dr. McConarty's attorney John Flahive said.

State courts differ on the issue

Attorneys who represent Massachusetts physicians have varying opinions on how alarmed doctors should be over these preliminary rulings in the two cases. They find the rulings troubling but note that, for the moment, there isn't a physician uproar over them.

The two rulings are fairly fact-specific, making most experts reluctant to forecast an upcoming parade of such cases.

Nationwide, state courts that have ruled on the "special duty" doctrine as it applied to physicians are split, making it even harder to determine whether there is a trend in this area of medical liability law.

Courts in Missouri, Texas, Iowa, Kansas and Florida have refused to impose a "special relationship" duty on physicians when a patient's medical condition makes it dangerous for the patient to drive.

Courts in California, Michigan and Delaware, on the other hand, have ruled that physicians have such a duty.

There is one thing, however, on which attorneys agree. The Massachusetts rulings reinforce their most sage advice to their physician clients: "Document, document, document."

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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