Mass. bill aims to reverse court expansion of physician liability

Massachusetts physicians are turning to the Legislature to reverse two separate decisions by the state's highest court that doctors say unfairly expand their liability.

The Supreme Judicial Court in a 2007 decision found doctors are liable not just to their patients, but to anyone else "foreseeably" put at risk when doctors fail to warn patients about potential side effects of drugs they prescribe.

The ruling allowed a mother to sue a doctor who prescribed several medications to a patient. The patient lost consciousness and hit the woman's 9-year-old son with a car, and the boy died. The trial in Coombes v. Florio was set to begin in early March.

In 2008, justices in Matsuyama v. Birnbaum concluded that doctors may be held liable if their actions reduced a patient's chance for survival, even if the patient already had less than a 50% chance of recovery. The decision upheld a nearly $500,000 jury verdict finding that a physician's alleged misdiagnosis deprived a cancer patient of less than an even chance of surviving the disease.

The rulings set dangerous precedents that "open a huge waterfront for plaintiff attorneys and drop the bar to an unconscionably low level," for proving medical negligence, said Massachusetts Medical Society President Bruce S. Auerbach, MD.

The medical society in February helped file legislation that generally would require plaintiffs to have a direct relationship with a physician defendant and show that any alleged negligence caused injury that otherwise would not have occurred.

Without this protection, doctors fear the decisions could expose them to a flood of litigation and cause liability insurance rates to spike. Worse, the added risk "could potentially discourage doctors from taking care of more complex patients," Dr. Auerbach said. At least one case similar to Coombes v. Florio already has been filed, he noted.

The Massachusetts Academy of Trial Attorneys argued in amicus briefs that the decisions do not increase doctors' risk or change existing duties.