He immediately consulted with a defense attorney who explained that the child’s parents were alleging that Dr. K’s failure to warn Mr. P not to drive resulted in their son’s death. The plaintiffs claimed that a potential side effect of several of Mr. P’s medications was drowsiness, and that Dr. K should have foreseen that an innocent person could have been harmed if Mr. P drove.

“The plaintiff’s attorney hired a medical expert who will say that the medications you prescribed could impair driving,” said Dr. K’s attorney. “The expert will testify that the medications had the potential for additive side effects, and that these could be more severe in elderly patients. Did you advise your patient not to drive?”

“No, except for during the time he was having chemo,” replied the physician. “But I pretty regularly asked him about any side effects he was having from the medications, and he reported nothing.”

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“I don’t really think you have to worry,” said the attorney. “I’ve never seen a case like this before. There was no relationship between you, as a physician, and the plaintiff,” he said. “We’ll make a motion to dismiss, and this will all go away.”

As promised, Dr. K’s attorney made a motion to dismiss, and the judge granted it, ruling that there was no connection between Dr. K and the boy, and thus that the physician owed no duty of care towards him. Dr. K’s relief was short lived, however.  A few weeks later, he received word that the boy’s parents had appealed the case to the Supreme Court of the state. This time, the doctor wasn’t as lucky.

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Legal Background

The Supreme Court, made up of six judges, argued amongst themselves for hours before reaching a decision. “In order to recover for negligence, a plaintiff must show the existence of an act or omission in violation of a duty owed to the plaintiff by the defendant,” they agreed. The question was whether Dr. K owed a duty to the plaintiff in this case. Ultimately, most of the judges believed that he did. (Two of the six dissented, and one agreed in part and dissented in part.)

The Court held that a defendant owes a duty of care to all people who could conceivably be endangered by his conduct. As a medical professional, Dr. K had a duty to warn his patient, Mr. P, that the medications he was being prescribed could make him faint, drowsy or disoriented. This warning would have protected the patient from the risk of a car accident caused by driving while taking the medications. The warning would also have protected any innocent third party (the 9-year old child) from being harmed by the patient’s driving. The Chief Judge concluded by saying “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.” Clearly, the foreseeable risk of injury in an automobile accident is not just to the driver.

This decision has been viewed as creating a narrow rule that a physician owes a limited duty to third parties, foreseeably at risk from a patient’s decision to operate a motor vehicle, to warn the patient of the known side effects of medications the physician has prescribed that might impair the patient’s ability as a motorist.

Protecting Yourself

A warning sticker on a pill bottle does not negate the duty of a physician to talk to patients about medications. Whenever any medications are being prescribed, you should discuss side effects with the patient. Even in the case of ongoing renewals of prescriptions, it is worthwhile to assess whether medications are affecting the patient, and give a reminder about the potential side effects.

As important as the warning is, keeping a record that the patient has been warned is equally important should a lawsuit arise. Document all conversations in the patient’s chart, including noting precise cautions regarding driving, operating machinery, etc. 

In the case of elderly patients who may be more affected by prescription medications, or who may be on medicines that cause cumulative side effects, it is worthwhile to periodically ask about effects and remind patients to be cautious.