Tort-Liability for Patient Caused Accidents

A recent article in the New England Journal of Medicine highlights the growing controversy over a doctor’s liability in tort for a motor vehicle accident caused by one of the doctor’s patients. The article, written by George J. Annas, J.D., M.P.H., tries to address the question of whether a doctor owes a duty of care to individuals who may be harmed when a patient under the doctor’s care ingests a prescribed medication and attempts to operate a motor vehicle.

The article opens with disturbing numbers from a study conducted by the Centers for Disease Control and Prevention. According to a study conducted by this organization in West Virginia, there is a higher prevalence of prescription medication than illegal drugs in the blood of fatally injured drivers. Further, in over seven percent of all fatalities, and in nine percent of fatalities in drivers involved in motor vehicle accidents, blood samples contained two or more of five commonly prescribed drugs.

With this study as a backdrop, Annas analyzes a case decided in Massachusetts, in the matter of Coombes v. Florio. In this case, a doctor was treating a 72 year old man for a variety of conditions, including asbestosis, chronic bronchitis, emphysema, high blookd pressure, and metastatic lung cancer. During the first year of the treatment, the doctor advised his patient that it would not be safe to drive during cancer treatment, advice the patient heeded.

Once the treatment was concluded, the patient returned to the road. Months later, the patient was driving his car when he lost consciousness and struck a ten year old boy, killing the child. At the time of the incident, the patient was in possession of prescriptions for oxycodone, metolazone, prednisone, tamsulosin, potassium, Paxil, oxazepam and furosemide from his treating doctor. Possible side effects for these medications include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. These side effects, including any impairment they may cause behind the wheel, were not discussed between doctor and patient.

The mother of the young child brought suit against both the driver and his doctor. A trial court dismissed the suit, and it came up to the Massachusetts Supreme Court for review. The Supreme Court of Massachusetts, through a plurality decision, reversed the trial court. The judge issuing the plurality opinion noted that this was not a medical malpractice decision, but rather an ordinary negligence issue. Therefore, the issues to be decided were: Did the doctor owe a duty to the injured boy? Was that duty breached, and if so, did the breach cause the boy harm?

The plurality opinion cited numerous examples of similar situation to demonstrate that negligence could be found on the part of the doctor. Consider the liquor store held liable for a bicyclist’s injuries, when a bicyclist is injured by an intoxicated minor operating a vehicle after purchasing liquor from the store. Consider also the homeowner held liable for failing to store a gun properly, later used by the homeowner’s son in the killing of a police officer. As the Court stated: “Relying on these same principles, I conclude 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 of a patient.”

As to the issue of whether the accident was “foreseeable,” the court held that since the medications had known potential side effects which “were likely to impair a motorist,” that fact coupled with the prior advice that the patient could resume driving made it all the more foreseeable that such an accident could occur.

This case does not settle the issue, and courts in this area have not addressed this issue. The Massachusetts case should inform attorneys and individuals that the potential for such liability, and the dangers that arise when consuming prescription medication, do exist. If you are currently under the care of a doctor and taking prescription medication, make sure you speak with your doctor about all potential side effects and risks. Further, if you or a loved one has been injured in a motor vehicle accident, contact one of the attorneys at Goldberg, Finnegan & Mester, LLC at 301-589-2999 extension 102 for your free consultation today.

Mark A. Schofield, Esquire
Goldberg, Finnegan & Mester, LLC

Florida Newspaper Finds that Mandatory Arbitration Clauses Further Injure Victims of Medical Negligence

You have seen it before: your doctor will not treat you unless you agree to sign a document that says if your doctor commits malpractice on you, you cannot sue her, but must use an arbiter picked by your doctor. There is nothing fair about it, but do you sign it? An article in the Tampa Tribune called this new tactic by the doctors in their continued fight for tort reform exactly what it is: blackmail.
An arbitration requirement requires you to give up your constitutional right to file a lawsuit and instead only allows you to pursue a claim with an arbiter, who is not a judge and is hired and/or chosen by the doctor who injured you. The article cited research that shows that these arbitration proceedings are not fair to the victim and, in fact, are skewed highly in favor of the doctor. “The outcomes are pre-cooked when you agree to a particular set of rules or arbiters.” The article concludes that big business and the medical profession are essentially growing a new system of justice and that the public deserves to know that arbitration is unfair and improper when used in this fashion.
Why are big business and the medical profession requiring mandatory arbitration? Simply, it is because of their continued tort reform efforts to take away your rights and to avoid responsibility for their actions. These entities and individuals will stop at nothing to maximize their profits and care nothing about stripping you of your rights. We at Goldberg, Finnegan & Mester, LLC fight for you and for the rights of those injured by someone else’s negligence. We stand up for you and your family against those who stand in the way of justice and we never back down. Whether it is the newborn baby who would be normal except for the negligence of the hospital and doctors, and now has brain damage and cerebral palsy requiring a lifetime of care, or your loved one who was misdiagnosed because the radiologist did not read the film correctly and now it is too late to save him, we fight tirelessly for you.
The text of the article can be found at http://www2.tbo.com/content/2008/jun/01/bz-new-hello-in-health-care-sign-here-not-to-sue/

Christian Mester
Goldberg, Finnegan & Mester, LLC
(301) 589-2999 extension 125

If you or a loved one have been injured, make sure you are aware of your rights. Contact the lawyers at Goldberg, Finnegan & Mester, LLC toll free at 1-888-213-8140 for a free initial consultation.