It just keeps getting worse. The potential liability here is nearly unlimited. Somehow, it seems like supposedly unbiased lawyers (i.e. judges) are just feeding other lawyers.

This should be very concerning to every physician. Patients may be on more than one medication with a similar side effects (often from more than one doctor) plus we docs have no knowledge of or control over the non-prescription medications they take. I think many of us try and take an accurate medication history from our patients but we are frequently told they take a blue pill and a white one. It is frightening how many patients cannot even tell you why they are on a medication, let alone the name and dose of the drug. My advice to any patients out there is to keep a list of what you’re taking (and why) in your wallet or purse and make sure your doctors communicate with one another whenever someone makes a change.

Docs have long had a duty to inform their patients of the risks accompanying the drugs they prescribe. Maybe the medical community needs to stop being drug dealers and start caring about their patients. How many kick backs does a profession need from big Pharma?

I wonder what Tort Reform thinks! Prepare for a long paragraph soon.

Um, bartenders and their employers are sometimes liable for the actions of their inebriated patrons (e.g., drunk driving deaths). Why should it be any different for a physician, other than on the justification of “gotta keep insurance premiums down.” (By the way, such a concern is often moot since premiums steadily increase even when tort liability is statutorily barred.)

Bartenders in many states have to be certified to dispense alcohol, and their employers have to be licensed. It is the same for physicians and prescriptions.

Admittedly, bartenders witness their patrons imbibe, whereas physicians do not. But, if a patient has such an accident as a result of taking medicine as prescribed by the doctor, there should be no problem. In fact, patients take medicine under “doctors orders,” whereas bartenders only deliver that which a patron requests.

I’d say a physician should deifinitely be liable.

One thing the Law & Economics folks emphasize is that you have to weigh the incentives you create with new law. In this case, this kind of liability creates an incentive for doctors to be very cautious. There are several ways they can do this — one is to make people sign complex waivers indicating that they have been warned of a drug’s potential side effects, no matter how miniscule the probability. The other is not to prescribe as many drugs, particularly since the possible effects of a combination (no matter how remote) is infinite. In the former case, you’ve created another layer of paperwork and probably scared some patients off taking very useful drugs. In the second, you’re not even giving the patients any choice. On the other side of the equation, you’ve saved the life of somebody who might get hit by the odd 75-year old who wouldn’t otherwise be driving had he received such warnings and who otherwise would hit somebody simply because of the side-effects of a drug that have never had an effect on that patient before.
I don’t know, but when weighing those two effects, seems sorta like a no-brainer to me.

This boils down to a question of foreseeability, maybe even causation. I’m not sure how this case is substantially different from Palsgraf, ie, you don’t owe a duty to a plaintiff you can’t foresee.

Short of strict products liability, I agree it is causation and not a new legal theory.

I stopped seeing my doctors. Now I just ask my insurance provider what’s medically necessary, then I visit my drug rep.

I’d say that this would present a problem involving proximate causation. The harm has to be reasonably forseeable, and if you subject someone to such a broad scope of liability, then that element goes out the window. The more people you allow into the scope of foreseeability and the more removed the chain of events becomes, in a case like this, the less foreseeable things actually are. Maybe the SJC whould re-read Palsgraff.

This is even broader than the psychiatrist cases where there is no duty owed to a third person unless there is some indication from the patient that a specific person(s) is in danger.

Plus, when this guy went to the pharmacist, didn’t he get one of those sheets that tell you all about the drug and potential side affects? Maybe the patient should be held someone accountable if he didn’t look at that. If he was taking all those drugs with side affects, maybe he shouldn’t have been behind the wheel.

If the doctor is responsible, shouldn’t the drug maker be as well? They do trials and tests to know the side effects of their drugs, yet they undermine the studies and say some drugs aren’t as dangerous as they really are and then when an unknowing physician prescribes them to someone and something like this happens it is time to hang the doctor? Other than people being just too sue-happy these days, the buck has to stop somewhere. The man was 75 and in horrible health, he shouldn’t have been driving in the first place.

The orbit of danger as disclosed to the eye of reasonable vigilance is the orbit of duty…

I don’t think that we can accurately assess this situation without more facts. How many meds was he taking? Had the doc prescribed each one, or were there other docs involved? Did the doctor know the patient was driving? Was there over-the-counter stuff that the doctor didn’t know about that was a factor? There are so many factors that would affect the equation, but seems to me that there could certainly be a scenario where the doctor has some liability.

Anon @ 5:35pm - I noted it in my post of the same article on the WSJ Health blog, but I’ll repeat it here since you bring it up. The difference between a bartender and a doctor is that the product a bartender dispenses has no therapeutic value. Getting drunk isn’t a ’side effect’, it’s the intended effect. So the sequelae from getting someone drunk are necessarily different from a physician who prescribes a medicine which has some therapeutic value and which may have stochastic side effects which cannot be easily predicted in any given individual. I would have to believe that there is a legal distinction, but I invite someone who knows the law to comment.

Does the fact that medications have a therapeutic value excuse a physician from prescribing them recklessly?

(And depending who you ask, alcohol has some therapeutic value . . . .)

JD for Ins Reform - Many interventions by physicians entail risks (surgery, etc) but the possible harm is acceptable because of the good-faith belief that the benefits outweigh the risks. So the point that something has therapeutic value is critical. Does it permit recklessness? Of course not, but recklessness is not the allegation here, it’s the failure of informed consent. And even for surgical procedures, consent must be obtained for known complications, not every single possible potential adverse outcome.

Well, I don’t think that this is an informed consent issue at all, especially since the plaintiff in the case is not the individual who was prescribed the meds. So this isn’t an informed consent issue at all.

OK, so you agree that a doctor should be liable for recklessly prescribing medications. Now, what if a reasonably competent physician in the same or similar circumstances would have instructed the patient to surrendor his liscense while on all of these medications. What if that were the standard of care? Surely the standard of care would require a doctor to explain the possible side effects of a medication, wouldn’t it? If this physician did not adhere to the standard of care, the question is whether the down-stream plaintiff has a claim against the doctor.

I think that this might be stretching it–that’s why I said originally that I think we need all the facts to determine just how egregious the behavior was.

How about liability when a helf care provider, pharmacist or insurance company make or mandate the substitution of a so-called generic drug for the one prescribed by the patiemt’s physician? Not all generics are equal, and some may have side-effects on the patient that the name-brand drug formulation does not have. The patient may have no choice but to accept the generic if cost controls mandate itm but runs the risk of unwanted side effects.

Frankly, who cares about the legal theory or logic of the decision? It’s the ramifications that always matter. In this case, the benefits in terms of lives saved by stopping old guys from driving drowsy do not outweigh the costs in terms of patients not getting medication that might otherwise help them.

Many of these arguments miss the point, especially the earlier ones from Doctors. Let me be clear. I agree in substance with their concerns, but, if the story of this case is true, the Doctor failed entirely to warn of side effects. Regardless of a doctor’s other concerns, that seems fairly inexcusable. The point about the pharmacist is pretty good, too. If he received that data sheet, wasn’t he on notice of the side effects? One typically has to sign or acknowledge receipt of such warnings, so even if the doctor failed in giving the warning, he did receive the warning. Being 75 and ill isn’t a valid reason to avoid that responsibility (perhaps even adds responsibility).
Oh, and pharma companies are generally free of liability in this type of case. they are protected by law if they warn the doctors of the side effects, transferring such responsibility to him/her to warn the patient (which brings us full circle, I suppose).

Anonymous is right.

This is an argument without an issue.

I don’t understand the objections to this.

Doctors prescribing certain medication who fail to warn are setting up obvious, unjustifiable, unnecessary, useless, sterile risks.

Why shouldn’t they be liable to warn? Why shouldn’t they be liable for oversight when their failure harms someone else.

1) So the patient is illiterate and unable to read the warnings for himself?

2) So the pharmacist didn’t review the warnings with the patient, either (oh come on!)?

3) Did the old guy’s serum levels get tested to find out if he took the meds in an appropriate way?

If you can’t answer all of those then you shouldn’t be able to certify a case like this. Come on.

Mass. has already dealt with the liability of a pharmacy in this type of case - Cottam v. CVS 436 Mass. 316. Interestingly, the “majority opinion” - there were two who joined the writer, one who concurred in part and dissented in part and two who dissented - cites to liquor liability cases for basis for overturning the previous grant of summary judgment. FYI, the driver was 75, suffering from terminal cancer and several other conditions and taking eight prescription meds. Passed out at wheel, woke up after striking and killing 10 year old boy on sidewalk. He died within 4 months. Tough facts for defendant. Majority decided that this was a simple negligence matter - no special duty. Very evident that court is very divided on this one. This will be revisited in the future.

“the doc failed to warn his patient about the side effects of the medications”

Did the patient not read the package insert? Unbelievable!

Wait. Wait. Were the doctor’s orders that the man had to take all the prescription medicines at the same time? And was the cause of the man’s passing out really drug-induced, or were there other factors? None of that seems to have been addressed.

Go to masslawyersweekly.com and you can find a link to the full opinion.