Publication: Medigram
Date of publication: February 28, 2008

Can a physician be liable to a third party for the actions of a patient?

The Massachusetts Supreme Judicial Court recently said “yes,” allowing the mother of a boy who was hit by a car and died to sue the physician who prescribed medications to the driver (Coombes v. Florio, 450 Mass. 182 [2007]). Massachusetts is not the only state to expand physician liability to third parties; courts in Washington, Maine and Hawaii have issued similar rulings.

Wisconsin courts could reach a similar conclusion. In Schuster v. Altenberg (144 Wis. 2d 223 [1988]), the Wisconsin Supreme Court (Court) recognized that third parties could potentially sustain a claim against a physician.

The Schuster case appears to be Wisconsin’s first “duty-to-warn” case. The case involved a charge that the defendant, a psychiatrist, was negligent in his diagnosis and treatment of his patient, had failed to warn his patient’s family of her condition and its dangerous implications and failed to seek involuntary commitment of his patient. The husband and child of the patient brought claims against the psychiatrist alleging that his negligence was a substantial contributing factor in causing an automobile accident, in which the child sustained injuries including paralysis. The patient, who was the child’s mother, was driving the vehicle and was killed in the accident.

This case is important to the question, “To whom does a physician owe a duty?” The Court noted that “it is well established in Wisconsin that a medical practitioner, be he a general practitioner or a specialist, should be subject to liability in an action for negligence if he fails to exercise that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances.” The Court also noted that warning patients of risks associated with a condition and advising patients as to appropriate conduct constitutes treatment for which the physician must exercise ordinary care.

In their opinion, the Court cited several cases from other jurisdictions in its analysis, including a Washington case in which the Washington Supreme Court held that a physician could be liable for injuries resulting to bus passengers from an accident involving a bus driver who lost consciousness because of medication side effects. The Court specifically addressed the medication issue in the Schuster case, stating “...in Wisconsin, a psychotherapist may be held liable in negligence for failure to warn of the side effects of a medication, if the side effects were such that a patient should have been cautioned against driving because it was foreseeable that an accident could result, causing harm to the patient or third parties if the patient drove while using the medication.”

The Court noted that the claim regarding negligent diagnosis and treatment was a medical malpractice claim, but the duty to warn claim was distinct from the medical malpractice claim because it involved the conduct of the patient and their dangerousness to third parties. The Court analyzed several cases involving the concepts of duty and foreseeability, and relied on those cases to conclude:

• The concept of duty in Wisconsin, as it relates to negligence cases, is inexorably interwoven with foreseeability.
• Liability extending to third parties where it is foreseeable that one’s conduct may cause harm to another is not foreign to negligence law as applied to the medical profession. The liability of a psychotherapist to third parties for injuries caused by his or her patient is a natural extension of the principle under which a physician may be liable to third parties as a consequence of his or her patient’s contagious disease.
• A duty exists when it is foreseeable that an act or omission to act may cause harm to someone.
• The duty to warn or to institute commitment proceedings is not limited by a requirement that threats made be directed to an identifiable target.

The Court held that negligence would be established if the evidence in a case proves that it was foreseeable, for a physician exercising due care, that a third party would be harmed by the physician’s failure to warn a third person or take action to institute detention or commitment proceedings. The Court examined several policy considerations, including the policy behind preserving physician-patient confidentiality, which might prevent a physician from having liability for harm to third parties. The Court ultimately concluded that none of the policy considerations were enough for the physician to avoid liability.

While the Schuster case involved a psychiatrist, it is likely that Wisconsin courts would extend physician liability to third parties in areas other than psychiatry. The language in Schuster that a general practitioner or specialist should be liable for failing to exercise the degree of care and skill of the average practitioner of the class, combined with the broad language of duty and foreseeability of harm, opens the door for any Wisconsin physician to have potential liability to third parties for failing to warn a patient about the effects of medication or to warn others about the patient’s dangerousness.

It is important that Wisconsin physicians inform patients about the effects of any medical condition and prescribed medications and to document this in detail in the patient’s record. Documentation should specify each medical condition/prescribed medication and the specific effects of such, and any special instructions discussed with the patient. In addition, physicians should document any effects reported by the patient and any changes in the physician’s instructions to the patient (i.e., patient called and reported sleepiness after taking Oxycodone; reminded patient that they should not drive while taking this medication). Such documentation can be key if questions arise as to whether a physician properly warned the patient and/or others, of the potential danger that the medical condition or medication could have on the patient or the public.

So, what is a physician to do when patients continue to drive despite a physician’s warning that their medical condition or medications may have an effect on their ability to exercise reasonable control over a motor vehicle? In these circumstances, Wisconsin law allows physicians to make a good faith report to the Wisconsin Department of Transportation (DOT), without obtaining the patient’s informed consent. (See Wis. Stat. § 146.82[3]) The law regarding reporting a patient to the DOT is permissive rather than mandatory. However, a physician who believes that a patient is disregarding the physician’s warnings about the danger that their medical condition or medication could have on the public, should seriously consider making a report to DOT.