Doctors worry about new liability for prescriptions

Physicians are concerned about the recent Massachusetts court decision holding they may be liable if a patient who is taking medication they prescribed injures a third party.

Doctors shouldn’t change their prescription practices as a result, insurers and attorneys advise, but they should be very careful to document their warnings – and in some cases they should follow up more carefully to see if a patient is becoming impaired by a medication’s side effects.

In December, Massachusetts’ highest court ruled in Coombes v. Florio that a woman could sue a doctor who prescribed a drug that allegedly caused the elderly driver of a vehicle to pass out behind the wheel. The vehicle struck and killed the woman’s 10-year-old son.

Doctors have reacted to the case with consternation and, in some cases, outrage. The issue is “brought up to me with some frequency,” said Dr. Dale Magee, president of the Massachusetts Medical Society.

What to do

Physicians are already required to tell their patients when a prescription medication could impair their abilities, and to document that they’ve done so, so experts say the main lesson of the ruling is to keep doing what’s required and to be very careful about documentation.

A major concern is that physicians will be looking over their shoulders and worrying whether someone in the future will second-guess their treatment, and this may chill their ability to diagnose and treat patients effectively.

Some are worried that physicians won’t prescribe necessary medication or use the very best treatment plan for fear that the patient won’t comply with their warnings about activity levels, with the result that the physician will be liable for injuries inflicted on someone else.

The state’s largest malpractice insurer is warning against that sort of approach. ProMutual Group is telling concerned physicians to simply prescribe the best treatment plan and medication possible, tell patients of the risks and document warnings in the chart meticulously.

Doctors could also conduct a follow-up to assess the effects of the medication on the patient. That way they can reassess whether the patient should be driving or taking part in other activities that could end up causing harm to themselves or others.

“Order the medication, but you need to follow up on how they are responding,” said Maureen Mondor, vice president of risk management at ProMutual.

“Have them come in and do a level assessment. Everybody’s different. Reschedule it in a reasonable time frame,” she advised.

ProMutual has also told its physicians that they should still issue precautionary warnings if medication could affect motor skills, even if a patient seems to be doing fine and experiencing no ill effects. A patient could have a change in status, or a fever or other health circumstance could affect their motor skills, given that they’re on medication, Mondor said.

She also noted that automatic prescription refills can be problematic. Doctors might want to schedule a follow-up appointment to assess the effects of the medication on the patient before he or she refills it, she recommends.

Finally, every time physicians see patients, they should ask what other medications they’re taking – including over-the-counter and herbal remedies – and encourage them to tell their other treating physicians about all their medications, too. “That can only improve communication at all levels,” Mondor said.

How broad is the liability?

There are more questions about what the Supreme Judicial Court decision means than there are answers, particularly because of a concurring opinion in which one justice agreed with the result of the case but criticized the broad nature of the majority decision.

“You’ve got three justices [out of six that heard the case] who have announced a very broad rule that a physician owes a duty to everyone who is at a foreseeable risk due to failure to warn of the side effects of treatment,” explained Dean Nicastro, a health care lawyer with Pierce & Mandell in Boston.

He noted that a fourth justice issued a narrower opinion that limits the duty to warn to situations where a physician is “prescribing medication to a driver that could cause impairment by driving.”

“Is it the broader rule that the case stands for?” Nicastro asks. “I think it’s going to take some time for this to be sorted out in the future, unless the Legislature unravels the situation.”

Meanwhile, two justices issued passionate dissents.

Given the split among the justices and the fact that the court is currently down one justice, there’s speculation among attorneys about whether the decision would hold if a different case were to come before the court involving a slightly different situation.

Perhaps instructive, though, is the fact that plaintiffs’ attorney Elizabeth Mulvey of Crowe & Mulvey in Boston said she has seen two cases with similar facts come through her doors and has declined to take either of them.

In a check of the legal research website Westlaw in mid-February, Nicastro found only one other case that cited the Coombes ruling. In that case, a psychotherapist was sued by a patient’s spouse for allegedly interfering with the marital relationship, he said.

The trial judge held that the spouse didn’t have a claim against the therapist, who owes a duty only to the patient when conflicting interests between the patient and a third party arise.

“The judge clearly felt an obligation to [distinguish] the Coombes case so he could reach what he felt was a good decision,” Nicastro said.

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