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Monthly Archives: December 2007

MA doctors can be legally responsible for harm caused by patients

The state Supreme Judicial Court ruled last week that a doctor can be sued over a car accident caused by his patient. It was a reasonable expansion of tort law, held physicians accountable for negligent conduct in prescribing harmful medications without advising of the attendant risks, and will make the streets safer. In its opinion, the court said that the mother of a boy who was hit by a car and died can sue the physician who prescribed numerous medications to the driver, including narcotics that can cause drowsiness. The mother’s lawyers alleged that the physician, Dr. Roland Florio, who practices in Brockton, failed to warn his patient, David Sacca, about the side effects of the medication and the potential danger of driving while taking them. Sacca passed out and drove off the road March 22, 2002, hitting 10-year-old Kevin Coombes, who was standing on the sidewalk with a friend.

Justice Roderick L. Ireland, who wrote the lead opinion, compared a doctor who fails to warn a patient about a drug’s side effects that could endanger others to a bartender who serves a drunk customer. In the opinion for the court, Judge Ireland wrote:

“To recover for negligence, a plaintiff must show ‘the existence of an act or omission in violation of a . . . duty owed to the plaintiff[s] by the defendant.” Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002), quoting Dinsky v. Framingham, 386 Mass. 801, 804 (1982). Whether a defendant owes a plaintiff a duty of reasonable care is a question of law that is decided “by reference to existing social values and customs and appropriate social policy.” Cremins v. Clancy, 415 Mass. 289, 292 (1993). “We have recognized that ‘[a]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others.’ See Remy v. MacDonald, [440 Mass. 675,] 677 [(2004)] . . . . A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor. . . . Consequently, with some important exceptions, ‘a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ Tarasoff v. Regents of the Univ. of Cal., [17 Cal. 3d 425,] 434-435 [(1976)].” (Citations omitted.) Jupin v. Kask, 447 Mass. 141, 147 (2006). Although a jury are uniquely qualified to determine the scope of the duty at issue, see Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 137-138 (2006), “[t]he existence of a legal duty is a question of law appropriate for resolution by summary judgment.” Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 261 (2007). “If no such duty exists, a claim of negligence cannot be brought.” Remy v. MacDonald, supra.

In the context of medical professionals, this court has held that a doctor’s duty of reasonable care, owed to a patient, includes the duty to provide appropriate warnings about side effects when prescribing drugs. Cottam v. CVS Pharmacy, supra at 321. As a result, “[p]hysicians . . . are required to inform their patients of those side effects they determine are necessary and relevant for patients to know in making an informed decision.” Id. When the side effects in question include drowsiness, dizziness, fainting, or other effects that could diminish a patient’s mental capacity, this warning serves to protect the patient from, for example, the foreseeable risk of an automobile accident caused by driving while under the influence of the medication. In the case of automobile accidents, it is clear that the foreseeable risk of injury is not limited to the patient.

In similar cases outside the medical context, when the foreseeable risk in question is the risk of an impaired driver causing an automobile accident, we have extended a duty of reasonable care to all those involved in such a foreseeable accident, including other motorists, bicyclists, and pedestrians. See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 7-8, 10-12 (1983) (liquor store liable for injuries to cyclist struck by automobile driven by minor to whom liquor store had sold beer); Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 106 (1978) (jury could have found owner of forklift liable to pedestrian injured when drunken seaman drove forklift over her foot; foreseeable consequence of negligently leaving key in ignition); Adamian v. Three Sons, Inc., 353 Mass. 498, 501 (1968) (negligence of bar extended to motorist killed in collision with automobile driven by man who became intoxicated at bar). This is so even when the plaintiff is unknown to the defendant before the accident. See Jupin v. Kask, supra at 149 n.8 (foreseeability of danger to specific person irrelevant; sufficient that general kind of harm was foreseeable); Adamian v. Three Sons, Inc., supra at 500-501 (foreseeable consequence of selling liquor to intoxicated patron was that accident would injure third party, even when identity of third party was unforeseeable).

Relying on those same principles, the court concluded 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.

The decision does not mean that the plaintiff in Coombes wins the case. It simply means that a jury will be able to decide whether or not Dr. Florio acted unreasonably in failing to warn his patient of the side effects. And in that respect, it was the right decision. It leaves the decision in the hands of a jury, and reinforces the social purposes of tort law. Indeed, the social purpose of Tort Law is accident and injury prevention. It is only when we fail in our initial purpose that we move to the secondary purpose, compensation for the injured person. Moreover, the decision upholds the notion advanced by John Adams in 1774: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Some in the medical profession complain that the decision will raise malpractice insurance rates and drive doctors out of Massachusetts. As shown in previous pieces on this site, these are unsupported myths, and will have little effect on insurance rates (see The Great Medical Malpractice Hoax, Doctors face high rates despite reforms). To the extent the decision makes doctors act more responsibly, the society benefits.

The full text of the court’s opinion can be viewed by clicking here. View the oral arguments before the court by clicking here.

House approves consumer protection reform bill

On December 19, the House of Representatives, by a vote of 407 to 0, passed legislation reauthorizing the Consumer Product Safety Commission (CPSC) and included statutory language specifically prohibiting the CPSC from issuing any rule or regulation that expands the scope of federal preemption of state law. The measure — officially called the Consumer Product Safety Commission Modernization Act of 2007, H.R. 4040 — was rushed along through a procedural maneuver that let Congress vote before leaving town for the holiday recess. The text of the bill can be viewed by clicking here.

The legislation creates the toughest lead standard in the world, as well as significantly increase funding and staffing for the Consumer Product Safety Commission (CPSC). “This legislation is a common-sense solution to our national consumer safety crisis,” said Rep. John D. Dingell (D-MI), Chairman of the Committee on Energy and Commerce and an original sponsor of the bill. “The American people and, especially, American parents are demanding swift action to protect children from dangerous imports and contaminated toys. This legislation creates the toughest lead standard in the world for children’s products and I’m proud that policymakers, consumer advocacy groups and industry leaders have worked together to move this bill forward. I look forward to supporting H.R. 4040 on the House floor and hope to see it approved as quickly as possible.”

H.R. 4040 increases funding for the CPSC, giving them more resources to conduct better oversight of consumer products, especially those imported from abroad. This year the CPSC’s budget was a mere $62 million even though the agency regulates a $1.4 trillion industry. H.R. 4040 increases the budget of the CPSC to $100 million in fiscal year 2011. This increased funding will allow the CPSC to employ more product inspectors and investigate more reports of injuries and deaths caused by consumer products.

The Public Affairs lobby team of the American Association of Justice worked successfully with the House Energy and Commerce Committee and Democratic Leadership to include terrific language in the Committee Report, which is the official statement of congressional intent. The Committee Report language formally and specifically disapproves the CPSC’s effort to override state common law by including preemption language in preambles to its proposed rules and final rules. Specifically with regard to preemption language in the preamble to a recently issued rule on mattress flammability, the Report states “this preamble should not be accorded deference by State or Federal Courts.”

The Report also specifically identifies the importance of “tort actions based on negligence” which the Committee says “are predicated on procedures and standards developed over hundreds of years of American and English jurisprudence.” And it says this about the preservation of common law remedies generally: “The preemption provisions of the statutes under the jurisdiction of the CPSC are clear, and State common law actions and standards are not preempted.”

This is a tremendous victory for consumers and for our clients.