Section Review

Coombes v. Florio and the implications of a sudden expansion of physician liability in Massachusetts

On Dec. 10, 2007, the Massachusetts Supreme Judicial court handed down a decision that, in a single brushstroke, significantly expanded the scope of a physician’s duty beyond the traditional obligation towards his or her patient. In Coombes v. Florio, 450 Mass. 182 (2007), a deeply divided Court held that a physician owes a duty of reasonable care to everyone foreseeably put at risk by the physician’s failure to warn of the side effects of his or her treatment of a patient. Although the majority decision, authored by Justice Roderick L. Ireland, with Justices Francis X. Spina and Judith A. Cowin joining, is striking in its expansion of the scope of a physician’s duty, the various dissenting opinions are equally notable for the depth of divisions expressed by the Court. This article examines the majority and dissenting opinions, and the case’s likely impact on medical malpractice litigation and health care delivery by Massachusetts physicians.

Background

The facts that give rise to the Coombes case are tragic. On March 22, 2002, 9-year-old Kevin Coombes was struck and killed by an automobile when the driver, David Sacca, lost consciousness while behind the wheel. The cause of the accident was never determined. At the time of the accident, Sacca was 75 years old and had been diagnosed with a number of medical conditions, including asbestosis, chronic bronchitis, emphysema, high blood pressure and metastatic lung cancer that had spread to his lymph nodes. He was under the care of multiple specialists. Dr. Roland Florio was Sacca’s primary care physician and was responsible for coordinating all of the medications prescribed to Sacca.

The medications that Sacca was taking at the time of the accident include Oxycodone, Zarxolyn, Predinsone, Flomax, Potassium, Paxil, Oxazepam and Furosemide. Florio failed to warn Sacca that these drugs carried potential side effects including drowsiness, dizziness, lightheadedness, fainting, altered consciousness and sedation. He further failed to warn Sacca not to drive a motor vehicle while taking these medications. Prior to the accident, Sacca did not report any of the aforementioned side effects to Florio and did not report any trouble operating an automobile.

The plaintiff brought a lawsuit alleging that Florio negligently failed to warn Sacca of the known potential side effects of the medications prescribed to him, and failed to warn him not to drive, which ultimately resulted in the death of Coombes. The trial court granted summary judgment in favor of Florio on the grounds that there was no doctor-patient relationship between Florio and Coombes, and thus Florio owed Coombes no duty. The plaintiff appealed and the Supreme Judicial Court took the case on its own motion. The Supreme Judicial Court reversed the judgment, concluding that a duty could be found between Florio and Coombes, and remanded the case to the trial court for further proceedings.

The majority opinion (Ireland, with Spina and Cowin joining)

The Court began its decision by clarifying the nature of plaintiff’s claim. Noting the lack of a physician-patient relationship between Florio and Coombes, the Court observed that plaintiff is unable to bring a medical malpractice claim. Instead, the claim proceeds under ordinary principles of negligence. Under general principles of tort law, the linchpin of a negligence claim is the presence of a duty flowing from the defendant to plaintiff. A duty may be found when the risk of harm is recognizable or foreseeable to the actor. The Court determined that there is a foreseeable risk of an automobile accident caused by driving under the influence of prescription medication with side effects that cause diminishment of a patient’s mental capacity. By this reasoning, the Court found that the physician 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.” Coombes at 187 (quoting Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (1976)). Consequently, in the majority opinion, the Court held that the 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 Court furthermore specifically declined to limit liability for a doctor’s duty to warn to situations where the drugs in question were used in the presence of the physician, as other jurisdictions have done. See, e.g., Cheeks v. Dorsey, 846 So.2d 1169, 1173 (Fla.Dist.Ct.App. 2003); Lester v. Hall, 126 N.M. 404, 406-407 (1998). The rationale behind the reluctance to keep the scope of liability narrow is that the burden involved is not heavy. The Court reasoned that the duty to third parties does not require anything further than what would satisfy the duty that the physician already owes to his or her patient under existing Massachusetts tort law. Cottam v. CVS Pharmacy, 436 Mass. 316 (2002), an informed consent case, sets out a physician’s duty to provide appropriate warnings about side effects when prescribing medication. Furthermore, the physician’s duty does not extend to third parties with respect to decisions regarding which medication to prescribe.

Acknowledging a concern that its decision could negatively impact rates for medical malpractice insurance, as well as the number of statutes enacted by the Legislature that limit the liability of physicians in order to keep malpractice insurance rates down, the Court left to the Legislature the task of determining whether to impose further limits on the scope of a doctor’s liability.

The dissenting opinions (Greaney, concurring in part, dissenting in part; Marshall dissenting; Cordy dissenting)

Justice John M. Greaney concurred in part and dissented in part, finding that when a physician has knowledge of a danger that may be posed to others by a patient’s decision to operate a motor vehicle under the influence of a prescribed medication and fails to warn the patient of the risks involved, the imposition of a limited liability to others is appropriate, in the interests of preventing the tragedy that occurred in the Coombes case from happening again. Greaney does, however, take issue with the “extraordinary” creation of a precautionary duty previously unknown in common law, and one which goes beyond the relief requested in the case.

Greaney’s dissent is based upon a disagreement with the majority’s conclusion that the proffered relief is based upon principles of ordinary negligence, rather than settled medical malpractice law. He observes that this outcome leads to the imposition of a sweeping legal duty of care on the part of physicians to virtually everyone who may come in contact with one of his or her patients. He particularly takes issue with the equation by the majority of the prescribing of medications to “unreasonably dangerous” conduct, similar to the reckless storage of firearms, which creates a general affirmative duty of care to others. Greaney suggests that such a stance intrudes upon the traditional physician-patient relationship. He finds that a physician should not, in ordinary circumstances, be held legally responsible for the safety of others, on the highway or elsewhere, based on medical treatment afforded a patient.

Greaney does find that a physician has a duty to warn the patient of potentially dangerous side effects of a medication. The duty arises, however, solely within the context of the physician-patient relationship, and is owed strictly to the patient. Nevertheless, the violation of that duty, within the framework of the standard of care principles of medical malpractice law, may, in certain circumstances, result in liability in negligence to others who are foreseeably injured as a direct result of the violation.

Chief Justice Margaret H. Marshall offers a particularly assertive dissent to the majority opinion, and also disagrees with Greaney’s more nuanced take. Marshall holds the line regarding the expansion of a physician’s duty, and takes the position that the Superior Court properly granted summary judgment on the grounds that Florio owed no duty to the decedent.

In particular, Marshall disagrees with the majority’s assertion that Cottam imposes a blanket duty to warn a patient of the adverse side effects of medication. Noting that Cottam was an informed consent case, Marshall underscores the language of the opinion that leaves to the physician the decision to warn their patients on occasions when they find it to be necessary and relevant. Rather than offering a strict rule to warn as a matter of course, the Cottam decision defers to the physician’s reasoned judgment on whether a warning is necessary. By reconfiguring the Cottam decision in this fashion, Marshall suggests that the majority is interfering with the physician-patient relationship, with deleterious results. She states, “The physician’s concern for a patient’s ability to assess information about needed and appropriate treatment would be forced to compete with concern for an amorphous, but widespread, group of third parties whom a jury might one day determine to be ‘foreseeable’ plaintiffs.” Coombes at 203.

Cordy’s dissent echoes that of Marshall. Cordy acknowledges that the Court has, under limited circumstances, recognized a duty where an unreasonably dangerous condition involves the foreseeable negligent conduct of an intermediary. He disagrees that such a situation is presented when a physician prescribes a medication for a patient. He distinguishes the normal scenario involving an inherently dangerous situation, one requiring a stock warning, and the process of communication involved in the physician-patient relationship, in which the patient is the sole focus and the advantages and risks of a particular treatment are discussed and weighed. Cordy expresses concern that a doctor’s advice and judgment will be greatly affected by the majority holding, raising the specter that the patient will now simply be handed a printout of all possible side effects and be asked to read and sign as a substitute for a discussion more tailored to the physician’s judgment about the patient’s particular situation and needs.

Cordy cites other policy concerns as well. He states, “it is hard to imagine a plaintiff’s attorney failing in negligence cases to sue not just the negligent party who caused the injury but also his or her doctor,” increasing costs and threatening the confidentiality of the treatment records called into question by the third party. Coombes at 212.

Analysis

The Coombes decision does not change the scope of the physician’s duty to the patient vis-à-vis informed consent discussions prior to prescribing medications. What it does change is the scope of persons that physicians are liable to as a result of the physician’s interactions with his or her patients. Under previous Massachusetts law, third parties such as Coombes were not included in the potential scope of a physician’s liability because there was no physician-patient relationship. This decision expands that scope to include third parties injured as a result of a physician’s failure to warn a patient not to drive while on impairing medications.

The Cottam decision, prominently discussed by the Court, focuses on the information a patient is entitled to with respect to prescription medications and includes reference to a physician’s judgment in that regard. Ireland quotes language directly from the Cottam opinion, underscoring that physicians are obligated to inform patients of side effects they deem “necessary and relevant” for patients to know in making an informed decision. Coombes at 188 (quoting Cottam v. CVS Pharmacy at 321). In the Coombes case, it is unrebutted that Florio failed to issue a warning against driving immediately prior to the events in question. Whether a warning was necessary and relevant, however, is the question that remains at issue. At trial, expert testimony will be needed to address this question. With respect to the determination of liability, the Coombes case will proceed in Superior Court like any other medical malpractice case, with an inquiry as to whether the standard of care required such a warning.

In terms of medical malpractice law, the basic tenets regarding the standard that physicians are held to are undisturbed. In addition to the obligations set out in Cottam as discussed by the Court, a physician has, and continues to have, a duty to his or her patient to comply with the standard of care expected of the average physician practicing in that specialty at the time and under the circumstances. See, e.g., Brune v. Belinkoff, 354 Mass. 102 (1968). A physician also owes his or her patient the duty to disclose all significant medical information that is material to an informed decision by the patient on whether to proceed with the proposed treatment. See, e.g., Precourt v. Frederick, 395 Mass. 689 (1985); Harnish v. Children’s Hosp. Med. Ctr., 387 Mass. 152, 155 (1982). Accordingly, the duty that a physician owes to his or her patient remains unchanged.

An important question is whether the majority opinion’s language about side effects involving mental impairment will create a de facto standard of care regarding warnings on those side effects in connection with driving. Ireland states in his opinion, “When the side effects in question include drowsiness, dizziness, fainting or other side 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.” Coombes at 188. From a liability standpoint, physicians prescribing medications with the aforementioned side effects would be prudent to keep in mind their obligation to provide a warning about driving, if they find it to be necessary and relevant for the patient. The same considerations require a careful documentation of the advice and instruction rendered.

There will likely be some increase in the number of cases filed against physicians as a result of the Coombes decision. Physicians may become unwilling participants in automobile accidents as parties undertake discovery to determine whether the influence of prescription medication was a factor in causing the accident. If so, the Legislature will need to step in with protective legislation in order to avoid an increase in malpractice insurance rates and an exodus of physicians from the commonwealth.

Conclusion

It remains to be seen what the outcome of the Coombes case will be in Superior Court. Time will also tell whether there is an appreciable increase in the cases being filed on behalf of third parties against physicians. In the mean time, physicians should be counseled against practicing defensive medicine as a result of this decision, because the nature of their duty to patients with regard to prescribing medications remains unchanged.

©2014 Massachusetts Bar Association