We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

As most doctors know, a malpractice action is grounded in first establishing a physician-patient relationship. This is a fiduciary situation in which a duty of care is owed to the specific patient.

However, there are unusual cases where a third party sues a doctor for negligence. Here, liability has increasingly been found via general negligence principles.

This is a critical point because in most jurisdictions the Statute of Limitations for ordinary negligence can be longer than that for medical malpractice.

Let’s look at the issues that can establish liability for a doctor to injured parties who are not their patients.

1. Foreseeability

Analysis of foreseeability is not unique to the determination of liability to third parties. It actually underlies all negligence law because of essential fairness to the defendant – no one should be responsible for effects of their conduct on any party that are so idiosyncratic or attenuated that a reasonable person could not have foreseen that they would occur.

For a doctor to have liability to a third party arising from that doctor’s care of a patient, that third party would be one in the foreseeable scope of that harm.

This is a critical point because in this setting the duty owed to the patient and the duty owed to the third party are therefore really one and the same.

A classic example of this reasoning is seen in a Pennsylvania case. Here, an appellate court upheld a claim against a doctor who did not give proper advice to his patient who then gave an STD to his girlfriend. The court held that since the infected patient’s sexual partner was “readily identifiable and “within the ‘foreseeable orbit of risk of harm’” the court found that the doctor was liable to her through his negligent care of her boyfriend.

By contrast, consider a South Carolina case in which foreseeability was not found.

In this case a doctor performed a negligent examination of a little girl and filed a report alleging sexual abuse report based on that exam. The plaintiff was indicted but the case was then dropped after another doctor concluded the claimed findings of abuse were absent. The first doctor then actually agreed that his examination had been substandard.

However, when the falsely accused man then sued the first doctor, his case was dismissed based on a lack of duty to him.

The court distinguished this case from an analogous case where a doctor was held to owe a duty to third parties. There, that doctor’s treatment “caused” a patient to drive impaired and hit another car. In that situation, the duty owed to the patient was interpreted as identical to the duty owed to the third parties – to prevent an impaired person from driving, an action through which they could injure themselves or others.

However, the court did not find an identity of duty to accurately evaluate for abuse between that (a) owed to a possible victim; and (b) that potentially owed to a person who could be wrongfully accused of having victimized her.

Admittedly, in both cases public policy issues were at stake – (a) tracking the contacts of STD carriers is well-established public health policy that the doctor violated in the Pennsylvania case; while (b) the South Carolina court did not want to create a chilling effect on doctors reporting child abuse. However, the general rule is consistent between them: the closer the nexus of the potential harm to the third party is to the potential harm to the patient that the doctor was required to try to avoid, the more likely it is that foreseeability will be found.

2. Iatrogenic causation of the risk to the third party

(i) Failure to warn

Here is where we see the identical nature of the duty owed to the patient and that owed to others really play out.

A physician is responsible to the patient for the results of medications or treatments he prescribes or administers. If those results can foreseeably cause harm to others then it’s reasonable to extend that same duty, arising from that specific medical conduct, to third parties as well.

A good example of this legal principle comes from Massachusetts. Here, a doctor prescribed multiple medications that could impair consciousness – that is to say, for which loss of consciousness was a foreseeable risk – to an elderly patient. The doctor did not warn the patient to avoid driving (at least it was not documented – the dreaded “D” word). The patient did drive and lose consciousness, drove onto the sidewalk and killed a child.

The court 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.”

The court found that the societal interest in public safety and the risk to the public from impaired drivers were high. The likelihood of a pharmacologically-impaired driver causing just such an occurrence was significant. The child who was hit was foreseeable as someone who could be harmed in an accident caused by an impaired driver. Against that, it found that the burden on the doctor was minimal because he already owed the duty to his patient to warn him against driving.

This analysis would also be relevant when a warning is required because of a patient’s intrinsic condition, such as a seizure disorder or impaired vision that can make driving dangerous. Again, the duty to protect the patient with a warning fully overlaps with the duty to protect the public.

Importantly, there is no implied requirement that a physician be his patient’s keeper. In fact, courts recognize that a physician cannot control a patient’s conduct once the patient leaves the office. The duty that is actually imposed – to inform the patient of side effects of a treatment or of the limitations imposed by their medical condition and to warn the patient against engaging in conduct that is thereby made dangerous – only applies to the time that the physician and the patient are together. As long as the physician reasonably relies on the patient’s affirmation that he will take appropriate care, the duty is then discharged. If the patient then reneges on his word there should be no physician liability.

(ii) Negligent administration of treatment

This principle is analogous to dram shop acts and host liability statutes where those who serve alcohol can be held liable if the person he served becomes inebriated and injures another.

In the medical setting, such cases usually involve the administration of a medication despite known risks either intrinsic to the medication or specific to the patient (e.g.; other medications the patient is taking, a physical condition that makes the patient very susceptible), with the harm to the third party arising from those known risks.

A case from Alabama illustrates this point.

A medical director at a methadone clinic was held liable for administering methadone to a patient who had consistently failed drug screens for illegal drugs and who was known to be a daily user of Lorcet, Dilaudid, Valium, Xanax and marijuana. While driving home, the patient caused a car accident, injuring third parties.

The doctor was originally granted summary judgment on the grounds that owed no duty to the injured third parties. But an appellate court restored the action.

Considering the case as one of common law negligence rather than medical malpractice, the appellate court found that the physician’s knowledge of the patient’s continued multi-drug abuse and the fact that she would then be driving after receiving the methadone that the provided (in addition to the drugs already in her system) made an accident entirely foreseeable to him, underpinning a duty to third parties who would then foreseeably be injured.

Before we leave this section it’s essential to distinguish between the idea of liability for negligent treatment that results in the patient harming a third party and liability for any treatment that was given to a patient who then harmed another.

This was dealt with in a case in California.

A psychiatrist significantly changed his patient’s medication regimen because of side-effects. Then, the patient killed the plaintiff’s husband and daughter. Although the patient had recently posted hostile comments online, none of those comments were about the plaintiff’s family. Further, the doctor was not aware of them.

The plaintiff sued the doctor for wrongful death due to medical negligence. The doctor claimed immunity under a state law protecting mental health professionals from liability for failing to predict or warn of a patient’s violent behavior unless the patient had communicated a specific imminent threat to the doctor against an identifiable victim. This patient did none of the above.

The plaintiff, however, countered she was not claiming a failure to warn. Instead she claimed the psychiatrist negligent treatment had caused the patient to become dangerous. She asserted that the doctor knew or should have known that the medications he prescribed could cause violent side effects and that he had failed to properly monitor the patient.

An appellate court specifically rejected this claim because it would have to be based on the doctor owing the plaintiff, a complete stranger to the matter, a duty of care when making medical decisions in the treatment of his patient.

Focusing on the fact that the treatment was not intended to affect the plaintiff or her family in any way, the court noted that “courts have invoked the concept of duty to limit generally the otherwise potentially infinite liability which would follow from every negligent act.”

In other words, holding a doctor responsible for negligence in the care of a patient that results in that patient harming others in a way that overlaps with the duty to the patient is not unreasonable. But to establish that strangers to that treatment could then litigate individual medical decisions in a manner previously reserved for the patient alone (through a medical malpractice action based on the doctor-patient relationship) was a bridge too far.

3. Indemnification

Consider this scenario: Mr. Patient is treated by Dr. Doc for hypertension with medications which can cause dizziness. Dr. Doc doesn’t warn him that this makes operating machinery risky and that he should not do so. Mr. Patient becomes dizzy while using a backhoe digging a hole for a swimming pool on his property. He accidentally injures Mr. Plaintiff, a neighbor he called over to see the work. Mr. Plaintiff then sues Mr. Patient for his severe injuries. Mr. Plaintiff has no knowledge of Dr. Doc.

Mr. Patient then impleads Dr. Doc into the lawsuit on the grounds that if he is liable to Mr. Plaintiff then Dr. Doc is liable to him for any judgment assessed against him. (Misery loves company.) His rationale: had Dr. Doc not been negligent and warned him against using heavy machinery when taking the medication, he never would have injured Mr. Plaintiff.

In this case it is unnecessary to determine if a duty runs from Dr. Doc to Mr. Plaintiff as a foreseeable potential victim of Mr. Patient’s pharmacologically-impaired backhoeing (this phrase, ” pharmacologically-impaired backhoeing” has probably never been written in the English language until now). The reason: it is actually Dr. Doc’s own patient who is suing him and that claim is based on the physician-patient relationship that does exist between them, under which Dr. Doc was responsible to warn Mr. Patient of dangers that his medication posed.

As a result, Dr. Doc is kept in the case and has to participate in the settlement to Mr. Plaintiff.

In summary: Physicians can be liable in negligence for harm that their patients cause to third parties if that harm is foreseeable. Liability can arise from a failure to warn the patient and from the doctor’s own contribution to the dangerous condition. Patients who harm someone else due to medical negligence can also seek indemnification from the doctor if they are sued.

[Medical Justice note: If side effects of medication or treatment (potentially affecting generic third parties) are likely and foreseeable, it is best to tell the patient these risks, and to get reasonable assurances the patient will not engage in unsafe actions. Obviously a doctor cannot police a patient’s actions once he leaves the office. But, if this conversation is documented and the doctor reasonably believes the patient, that should suffice. This becomes challenging when a patient has a seizure disorder or dementia and he/she still insists on driving. When confronted with those situations be aware each state has its own rules and obligations vis a vis reporting to the Dept. Transportation. Once the report is made, the DOT typically takes it from there.]