Car accident suit must appear before tribunal

The widow of a man who was hit and killed by a car could not sue the driver’s health care providers for failing to warn of the risk of driving while taking certain medication without first presenting her claim to a medical-malpractice tribunal, the Massachusetts Supreme Judicial Court has ruled.

In Vasa v. Compass Medical, P.C ., the widow argued that her claim was an ordinary negligence lawsuit rather than a medical malpractice claim, and that the state’s tribunal statute didn’t apply absent a physician-patient relationship between the health care providers and her husband.

But the SJC disagreed.

“The identity of the plaintiff does not affect whether the defendant’s medical judgment is at issue,” Justice Judith A. Cowin wrote on behalf of the court. “Here, the plaintiff’s claims involve the medical treatment the defendants provided to [the driver]. Accordingly, the claims are subjected to … [the malpractice tribunal statute].”

Limiting Coombes

Plaintiff’s counsel Brad Greenberg of Smyth Law in Braintree said that the ruling limits the application of the court’s 2007 ruling in Coombes v. Florio, a similar case in which the court held that a physician owes a duty of care to any person foreseeably put at risk by his or her failure to warn of the side effects of medication.

“I don’t think the court is particularly enamored by [its own decision in] Coombes v. Florio and will do its very best to limit it,” Greenberg said.

Meanwhile, he expressed concern about the ability of a malpractice tribunal to adequately address negligence issues that are not medical in nature.

“For example, this case involved a car accident,” he said. “What if a … physician claims that brake failure was the cause of the accident, not the combination of medications he failed to warn about? Will we have an expert on motor vehicle mechanical issues providing a report to the tribunal? And will they be able to assess that in an appropriate way?”

Defense counsel Joan Eldridge of Foster & Eldridge in Cambridge declined to comment.

Tragic accident

Beginning in March 2003, four physicians with defendant Compass Medical, P.C., treated Jane Berghold for symptoms of dizziness and lightheadedness, which she said she experienced up to four times daily, including while driving. She also suffered from diabetes, stroke with lingering congestive heart failure and hypertension.

The defendants responded by prescribing her various medications and modifying prescriptions she had received from other doctors.

On Oct. 15, 2007, the woman was operating a motor vehicle when she lost control, drove into the Brockton Hospital building and crushed to death employee Mark Vasa.

Vasa’s widow, Kathleen Vasa, sued the driver in Superior Court but settled those claims. She then amended her complaint to add Compass Medical and the four treating physicians as defendants.

According to the plaintiff, the defendants knew or should have known that the medications they prescribed, especially considering the patient’s age and health, would likely impair her ability to safely operate a motor vehicle. The plaintiff also claimed that the defendants breached a duty of reasonable care to both the driver and the public by failing to warn her not to drive.

In response, the defendants requested that a malpractice tribunal be convened, a request that was eventually granted.

The SJC took up the case on appeal.

Treatment related

The court rejected the plaintiff’s argument that her claim should not be subject to the malpractice tribunal requirement because it wasn’t related to medical treatment.

“The claims in this case are within the competence of a malpractice tribunal because they involve medical judgment exercised by the defendant physicians,” the court said. “In deciding what warning to give about the side effects of medical treatment, a physician must consider ‘the history and needs of [the] patients and the qualities of the [treatment].’ Thus, a decision regarding what warnings, if any, to provide patients about the side effects of particular drugs involves a medical judgment by a physician.”

Additionally, the court said, subjecting the plaintiff’s claims to the malpractice tribunal would comport with the statutory purpose of ensuring that reasonably priced med-mal insurance continue to be available in the commonwealth.

The tribunal accomplishes that goal by examining medical aspects of a claim in order to distinguish between actual malpractice and simply a bad medical outcome, the court said.

“Where medical judgment or competence is at issue, the malpractice tribunal, which includes a health care provider in the defendant’s field, possesses expertise to decide whether there is sufficient evidence for the matter to proceed,” the court said said.

Meanwhile, the court was not persuaded by the plaintiff’s argument that a doctor’s failure to provide warnings to a patient was merely simple negligence ancillary to actual treatment, placing her claim beyond the scope of the tribunal statute.

Finally, the court found that the third-party nature of the plaintiff’s claim did not remove it from the application of the malpractice tribunal statute.

“The … statute contains no language limiting its coverage to suits brought by recipients of medical treatment,” Cowin said. “[I]t is the defendant’s status as a health care provider, not the presence of a doctor-patient relationship, that triggers the statute.”

Questions or comments should be directed to the editor at: reni.gertner@mamedicallaw.com