Medical Provider Liability to Non-Patient Third-Parties for Negligent Medical Care and Prescribing Practices
By Mark A. Abramson and Holly B. Haines
In our recent article regarding Medical Malpractice Liability in the Information Age, we discussed how medical providers outsourcing their services and contracting with independent physician groups can assume liability to third-parties as the intended beneficiaries of the services the provider contracted for. This article examines third party liability in another situation: when members of the public are harmed by patients under the care of prescribed medications. While the New Hampshire Supreme Court has yet to address this issue directly, we contend that medical provider liability to third-parties foreseeably put at risk of injury by medical treatment is consistent with existing case law.
II. The Problem
Prescription drug abuse and drug impaired driving are on the rise, injuring and killing more and more people each year. Some drug impaired drivers are criminally negligent; others, however, cause harm to innocent victims due to complications from their medical conditions, medications, or drug interactions. Accidents and injuries caused by this latter group of drivers are often preventable if the physician or health care provider treating the medical condition or prescribing the medication provided appropriate medical care, including appropriate warnings as to potential impairments. When a potential accident or the potential for injuries is foreseeable to and preventable by a physician or medical provider, that medical provider should be liable.
The most common scenario involves an accident caused by a driver who is administered a medication with known side effects or interaction possibilities, while that driver is under the influence of other drugs or medications. Generally, either the physician or health care provider did not test the patient for the presence of other drugs that could cause a potentially fatal interaction or did not instruct the patient not to drive while taking the medication in concert with other medications or drugs. In either event, the physician or health care provider places both the patient and the general public at risk of catastrophic injury due to the likelihood of an accident if a patient gets behind the wheel of a motor vehicle while impaired by the effects of the medication. If a physician fails to use reasonable care in prescribing and administering medications to a patient and fails to provide appropriate warnings to a patient at risk of causing an accident, the physician should be liable to those third parties who are injured by the patient’s foreseeable conduct.
In addition to private physician practices and hospitals administering medication and controlled substances to patients, there are many outpatient clinics for drug abusers being established in New Hampshire that administer methadone or other controlled substances in an effort to treat patients addicted to illegal opiates or non-prescription drugs through maintenance and detoxification programs. While this goal is certainly laudable and these clinics are highly regulated, the reality is that these outpatient clinics are providing treatment to patients known to have substance abuse problems who are likely to drive away from the clinics after administration of medication. If these clinics do not take proper precautions and use reasonable care to ensure that a patient is not impaired by other substances prior to administration of the medication and to make sure the patient does not get behind the wheel of a motor vehicle if he or she is impaired, the clinics should be liable to third parties who are injured by their patient’s foreseeable conduct.
The increase in outpatient clinics, day-surgery centers, and office-based medical procedures greatly increases the risk of harm to the public from patients driving under the influence of drugs or sedation. These changing societal conditions must lead to changes to the traditional duties imposed on medical providers and should result in third-party liability being imposed on medical providers when members of the public are injured by these patients.
III. The Law in New Hampshire
In New Hampshire, whether a duty exists in a particular case is a legal question. It is axiomatic that all people “have a duty to exercise reasonable care not to subject others to an unreasonable risk of harm.” Despite this, duties “are exceedingly artificial concepts.” They can be imposed by law or they can be voluntarily assumed. Indeed, “one who gratuitously or contractually provides services may be liable to third parties for a foreseeable harm resulting from a breach of a duty of care.”
The New Hampshire Supreme Court has recognized that a professional person acting in the course of his or her employment may owe a duty of care to third parties in certain circumstances. Such duties have been found to be owed by attorneys to third-party beneficiaries of wills; by investigators to the subjects of their investigation; by accountants to the third parties who rely on their work; and by banks to beneficiaries of accounts with survivorship features. The theme common to all of these cases in imposing a duty is the foreseeability of injury to an identifiable third-party or beneficiary of the professional services being provided. New Hampshire does impose third-party liability on medical providers when they know of a specific risk of harm by their patient to an identifiable third-party and the medical provider fails to take reasonable action to prevent that harm from occurring.
In another case, the Supreme Court addressed liability when the third-party was a member of the general public, as opposed to an “identifiable” third party, finding that the existence of a duty to third-parties must be based “upon a balancing of the societal interests involved, the severity of the risk, the burden [placed] upon the defendant, the likelihood of occurrence and the relationship between the parties.”
In cases when a third party is harmed by the criminal conduct of another, the existence of a duty is further complicated by the competing rule that people do not generally have a duty to protect others from the criminal conduct of another. In those cases, a duty to exercise reasonable care will be recognized only when there is a special relationship, when there are special circumstances, or when a duty has been expressly and voluntarily assumed. Special circumstances exist when a defendant has created the opportunity for the criminal misconduct to occur. “The exact occurrence or precise injury need not have been foreseeable. Rather, where the defendant’s conduct has created an unreasonable risk of criminal misconduct, a duty is owed to those foreseeably endangered.”
The premise of third-party liability has long been ingrained in our common law and codified in our statutes regarding criminally negligent conduct. New Hampshire had a Dramshop Act and Civil Damage Law from 1870 through its repeal in 1934. Following repeal of those laws, New Hampshire recognized a common law action against dram shops and liquor licensees for injuries caused by provision of liquor to an intoxicated person, and extended liability both to the intoxicated patron and third parties. The Dram Shop Act was recodified in 1986, and allows third parties to recover damages from providers of liquor when the victim is injured by an intoxicated patron.
Just as liquor licensees should be held liable to third parties for injuries caused by their negligent provision of alcohol to intoxicated persons, medical providers should also be held liable to third parties for injuries caused by their negligent provision of medical care or by their negligent administration of medications to impaired or ill patients. In each case, the defendant is engaged in a highly regulated profession and the societal risks are high. Drivers impaired by prescription medications are no less of a risk to public safety than drivers impaired by alcohol. Driving while intoxicated by any drug is deplorable, whether the drug is received legally or illegally.
As opponents of the statute feared, the increased expense associated with RSA 519-B is preventing meritorious medical negligence cases from being pursued. It simply doesn’t make economic sense to go forward with a case of marginal value now that the litigation expenses are going to be tens of thousands of dollars more than they would have been but for the screening panel process. We have rejected hundreds of potential cases in the three years since RSA 519-B passed that we would have at least carefully considered before the law was enacted.
Medical providers have a duty to inform their patients of all side effects and potential drug interactions when they prescribe and administer drugs to their patients. Before administering a medication the medical provider also has a duty to ensure that the patient is not otherwise impaired and has the drug is not contraindicated. Finally, if a medical provider gives treatment of any kind that may impair a patient’s driving abilities, the medical provider has a duty to ensure that the patient does not drive until he or she is able.
IV. The Law in Other States
Many other States impose third-party liability on physicians and medical providers in two distinct situations. One is when a physician or medical provider fails to warn a patient of the risks of the treatment being provided and then the foreseeable risk occurs. The other is when a physician or medical provider negligently administers treatment to a patient and the patient causes injury or death to a third party.
In the first class of cases, the duty a medical provider owes to third parties is generally found to be a mere extension of the duty already owed to the patient being treated. Specifically, a medical provider has a duty to warn his patient of any known side effects that may impair the patient’s ability to drive. These courts recognize that a physician cannot control a patient’s conduct once the patient leaves the physician’s care, but they impose a duty on the physician to take all reasonable precautions to inform the patient of side effects of the medication and to prevent the patient from driving.
In Coombes v. Florio, the Massachusetts Supreme Judicial Court recently held that “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 to a patient.” In the Coombes case, the primary care physician was treating his patient for a host of medical conditions when his patient was diagnosed with cancer. The physician advised the patient not to drive during his cancer treatments and the patient complied with this advice. When the treatments concluded, the physician told the patient he could resume driving. Again the patient followed this advice. Over the next three years, the physician prescribed more and more medications to the patient, many with significant side effects that could impair the patient’s driving ability, but the physician never again advised the patient not to drive or of any of the potential side effects of the medications. The patient later killed a pedestrian while driving and the accident was found to be caused by the combination of the patient’s medical conditions and medication. The Coombes Court found liability under traditional negligence principles, noting that it was not a malpractice claim since the decedent did not have a physician-patient relationship with the doctor. The Court found that the physician owed the decedent a duty under an analysis strikingly similar to that applied by our own Supreme Court by “balancing  the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties.” The Coombes Court found the societal interest in public safety by preventing impaired driving was high; the risk to the public created by impaired drivers was significant; the burden on the defendant was extremely low because he already owed the duty to warn to his patient; the likelihood of occurrence was high and the potential plaintiff was foreseeable as a member of the public who could be harmed in an accident caused by an impaired driver.
TIn the second class of cases, the duty owed to third parties was analogous to the one courts impose on liquor licensees through Dram Shop Acts and the common law. Specifically, this class of cases involved the administration (or lack of administration) of a medication in the face of known risks of medication administration such as illegal drug impairment, or other contraindicated medications or medical conditions. One of the leading cases is Taylor v. Smith, where the Alabama Supreme Court imposed liability on a Methadone Clinic for administering Methadone to an outpatient who consistently had failed drug screens for other illegal drugs and who was known to be a daily user of marijuana and benzodiazepines during her Methadone treatment. The patient left the clinic for her daily 90 minute drive home and caused an accident with a third-party. The Taylor Court found that the physician’s knowledge of the patient’s known, continuing, drug abuse along with the knowledge that the patient would get behind the wheel made an accident entirely foreseeable. The Court also found that administration of Methadone to an impaired patient violated the applicable standard of care for treatment. Finally, the Court found that the societal costs of accidents caused by impaired drivers outweighed the need to treat drug addicts with Methadone, especially those who were receiving Methadone in addition to their illegal drugs, rather than in lieu of them, which is the purpose of the treatment. In short, the Court balanced the foreseeability of the injury, the type of activity, the relationship of the parties and the type and degree of potential harm and held that the duty owed by a Methadone Clinic to its patient extends to third parties foreseeably injured in an accident caused by the administration of Methadone.
It is unfortunately only a matter of time before our Supreme Court will be confronted with the question of medical provider liability for failure to warn a patient or for negligent administration of medication. Policy considerations, case law and common law all support third party liability- to protect the public and to prevent foreseeable harm.
Walls v. Oxford Management Co., 137 N.H. 653, 656 (1993).
Remsburg v. Docusearch, Inc., 149 N.H. 148, 153 (2003).
See Carignan v. New Hampshire International Speedway, Inc., 151 N.H. 409, 413 (2004).
Id. (internal quotation marks and citation omitted).
See Hungerford v. Jones, 143 N.H. 208, 211 (1998) (listing cases) (finding psychiatrist owed duty to parent who suffers injury due to criminal charges arising from psychiatric treatment of child patient).
see Simpson v. Calivas, 139 N.H. 1, 5 (1994);
see Morvay v. Hanover Ins. Co., 127 N.H. 723, 724 (1986);
see Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903 (1982);
see Robinson v. Colebrook Savings Bank, 109 N.H. 382, 385 (1969).
See RSA 329:31.
Carignan v. New Hampshire International Speedway, Inc., 151 N.H. 409, 413 (2004) (quoting Williams v. O’Brien, 140 N.H. 595, 599 (1995)) (finding business liable to the general public for risks arising when business assumed duty of directing traffic to its establishment).
Remsburg, 149 N.H. at 153.
Id. at 154.
Id. (Internal citation and quotation omitted).
See Laws 1870, c.3, sec.3; P.L. C.144, secs. 52-53; Laws 1934, c.3, sec.43.
See Ramsey v. Anctil, 106 N.H. 375, 376 (1965) (liability to intoxicated patron for injury) and Elks Lodge v. Hanover Ins. Co., 110 N.H. 324, 326 (1970) (liability to third party injured by intoxicated patron).
See RSA ch. 507-F, et. seq
See, e.g., Allstate Ins. Co. v. Dalrymple, 883 F.Supp. 963 (D.Del. 1993) (failure to warn epileptic patient with history of seizures and causing accidents not to drive); Myers v. Quesenberry, 144 Cal.App.3d 888 (Cal. App. Ct. 1983) (failure to warn diabetic patient in diabetic state not to drive); McKenzie v. Hawai’i Permanente Med. Grp., 47 P.3d 1209 (Haw. 2002); Coombes v. Florio, 877 N.E.2d 567 (Mass.2007)(failure to warn of drug side effects); Joy v. Eastern Maine Medical Center, 529 A.2d 1364 (Me. 1987) (failure to warn patient with eye patch not to drive); Hardee v. Bio-Medical Applications of S.C., 636 S.E.2d 629 (S.C. 2006) (failing to warn patient in diabetic state not to drive to hospital); Burroughs v. Magee, 118 S.W.3d 323 (Tenn. 2003); Kaiser v. Suburban Transport Sys., 398 P.2d 14 (Wash. 1965).
See, e.g., Taylor v. Smith, 892 So.2d 887 (Ala.2004) (Methadone clinic liability for negligent administration of medication); Cheeks v. Dorsey, 846 So.2d 1169 (Fla. 2003) (Same); Cram v. Howell, 680 N.E.2d 1096 (Ind. 1997) (physician liable for injuries caused by allowing patient to drive after observing loss of consciousness following vaccine administration); Welke v. Kuzilla, 375 N.W.2d 403 (Mich. App. 1986) (decided under Michigan Medical Malpractice law); Duvall v. Golden, 362 N.W.2d 275 (Mich. App. 1985) (failure to prescribe anti-seizure meds to epileptic patient known to be driving); Wilchinsky v. Medina, 775 P.2d 713 (N.M.1989) (liability for negligent administration of narcotics to outpatient); Zavales v. State, 861 P.2d.1026 (Or. App. 1993)(negligent prescription of psychiatric medication to heroin addict while impaired); Gooden v. Tips, 651 S.W.364 (Tex. App. Ct. 1983)(negligent administration of Quaaludes to patient with known history of drug abuse and noncompliance); Osborne v. U.S., 567 S.E.2d 677 (W. Va. 2002) (decided under West Virginia Medical Malpractice Act).
Coombes v. Florio, 877 N.E.2d at 572.
Carignan v. New Hampshire International Speedway, Inc., 151 N.H. at 413 (quoting Williams v. O’Brien, 140 N.H. 595, 599 (1995)) (finding business liable to the general public for risks arising when business assumed duty of directing traffic to its establishment).
Taylor v. Smith, 892 So.2d at 895.
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