Court allows suit against doctor over drug effects

Massachusetts physicians say a recent high court ruling expands physician liability well beyond the bounds of the doctor-patient relationship.

The state's Supreme Judicial Court said doctors are liable not just to patients but also anyone else "foreseeably" put at risk when doctors fail to warn patients about potential side effects of drugs they prescribe.

The Dec. 10, 2007, decision allows a mother to sue a doctor who prescribed numerous medications to a patient who hit her son in a car crash. The boy later died. The case heads to trial in a lower court, where a hearing has not yet been scheduled.

The court noted that other states have tackled the same question with mixed reviews. But doctors worry that the ruling goes too far.

"This puts someone else in the exam room besides the patient," said B. Dale Magee, MD, president of the Massachusetts Medical Society. The organization filed a friend-of-the-court brief in the case as a member of the Professional Liability Foundation, a coalition of local physician and hospital groups supporting tort reform.

Doctors worry that the decision could expose them to a flood of litigation that might not be covered by their medical liability insurance, he said.

Doctors don't deny their responsibility to advise patients about treatment risks. But the ruling could do more harm than good to patient care, said Joseph M. Heyman, MD, chair-elect of the American Medical Association's Board of Trustees.

"This puts doctors in the position of warning patients against a litany of side effects instead of just the relevant ones and may frighten them into not taking the medications they need," said Dr. Heyman, an ob-gyn in Amesbury, Mass. Having to document all of those conversations or having patients sign waivers also will add time and expense to medical care, he said, adding that patients also bear some responsibility.

Two dissenting judges echoed doctors' concerns.

The decision "significantly shrinks the essential and protected space within which doctor and patient can freely move together," wrote Chief Justice Margaret H. Marshall. "Gone would be the physician's ability to exercise independent professional judgment. ... The physician would be forever looking over his shoulder."

But plaintiff attorney Peter L. Eleey said the ruling does nothing to alter doctors' existing responsibilities or their patient relationships. Instead, he hopes it will encourage doctors to be more vigilant.

"Doctors are already supposed to be discussing treatments and side effects with patients in light of their current condition, and that hasn't changed," Eleey said. "If [doctors] fail to do that, it's foreseeable that a third party could be injured or killed as a result, and that person would have a claim."

Eleey said doctors will not be liable if patients don't follow their advice. He doubts the decision will spur more lawsuits because the courts said they will examine the circumstances of each case on its own merit.

Accident triggers lawsuit

The Massachusetts Academy of Trial Attorneys, in a friend-of-the-court brief, argued that internist Roland J. Florio, MD, knew that 75-year-old patient David Sacca suffered from multiple debilitating conditions -- including asbestosis, emphysema and lung cancer -- that made it unsafe for him to drive.

As Sacca's primary care physician, Dr. Florio coordinated with Sacca's specialists and prescribed his various medications, court records show.

Sacca was taking eight different drugs -- including painkillers, antidepressants, blood pressure medicine and steroids -- when he lost consciousness and struck 10-year-old Kevin Coombes, who was standing on a sidewalk, in 2002. Side effects of those drugs include drowsiness, dizziness and sedation, among others.

Coombes' mother sued Dr. Florio for negligently prescribing the medications without warning Sacca of the potential, cumulative side effects or driving risks. Sacca died several months after the incident.

In court papers, Dr. Florio denied any wrongdoing. His attorney did not return calls for comment.

Before the crash, Sacca reported no side effects to Dr. Florio and had no problems driving, the court opinion states. At one point in 2000, Dr. Florio warned Sacca that it was not safe to drive during cancer treatment. When treatment ended in 2001, Dr. Florio told Sacca he could resume driving.

The majority court said doctors cannot be expected to control their patients' actions. But "it was Dr. Florio's own act of prescribing medication that created the foreseeable risk of an accident, and his duty to warn flows from that act and extends to all those foreseeably put at risk," justices said.

The medical community in its brief said that interpretation exceeds what other jurisdictions have ruled on similar matters.

For example, some courts have limited doctors' liability to situations in which they treated a patient in the office and then immediately released him or her to drive. But in Dr. Florio's case, several months elapsed between the time he prescribed Sacca's medications and the crash, according to the brief.

The Massachusetts Medical Society's Dr. Magee added that allowing such lawsuits also poses confidentiality concerns if third parties demand information in patient records to prove their case.

As doctors wait for the case to play out at trial, he recommends that doctors document their conversations with patients.