The next wave of defensive medicine

by Ted Frank on December 11, 2007

The Massachusetts Supreme Judicial Court has held that a doctor may, in some circumstances, be liable for a patient’s auto accident if the plaintiff can prove that he failed to adequately warn his patient about the risks of driving under medication. (Coombes v. Florio; Childs; Klein blog; update: also Liz Kowalczyk, “SJC ruling adds to doctor liability”, Boston Globe, Dec. 11 via Childs).

The obvious dynamic result from this gigantic expansion of liability, unnoted by the majority: doctors will simply overwarn, and tell all of their patients not to drive. (After all, patients can’t sue their doctors for the damages caused by their being unable to drive.) Some patients will routinely ignore the advice because they won’t be able to distinguish the legitimate warnings from the defensive warnings; other patients will stop taking medication that they should be taking because of the additional unnecessary personal costs; still other patients who could have driven safely will impose huge costs because they obey the defensive warning. None of these indirect expenses caused by the expansion of liability will be measured in accounts of the costs of the tort system.

{ 1 trackback }

September 11 roundup
09.11.08 at 12:10 am

{ 7 comments }

1 Anonymous Attorney 12.11.07 at 11:27 am

I wonder if this accounts for the glut of doctor notes I’ve gotten recently declaring that a plaintiff or a worker’s compensation recipient is “unable to drive.” With this information, for instance, a very mildly injured worker’s compensation recipient can cruise for years on a home vacation because they are “unable to drive” to training or alternate work. Or a plaintiff in a mild personal injury case can all of a sudden claim a lifetime’s worth of lost wages because — you guessed it — they can “no longer drive.”

2 Jason Wong 12.11.07 at 12:28 pm

After all, patients can’t sue their doctors for the damages caused by their being unable to drive.

I’m not so sure. Some medical conditions require a doctor to notify the DMV which will then suspend the driver’s license.

In many parts of the country, being without an automobile is a significant hindrance.

If an MD’s actions (without valid medical justification) result in losing your license, there might be some liability.

3 Todd Rogers 12.11.07 at 2:23 pm

Actually, what this will do is require one more form to fill out while waiting to see the doc.
“The undersigned agrees/is aware that the doctor may prescribe medications which may alter the patient’s ability to operate dangerous machinery to include, but not be limited to…cars, trucks, combines, tractors, big-wheels, tricycles, bicycles, shoes, sandals, pens, pencils, firearms, cutlery, climb fences, climb radio towers, climb cell towers, urinate on electrical fences or power sources for electrically-powered transit trains, buses, large freight trains, oil-transporting ocean vessels, freight ships, cargo ships, aircraft (including non-powered gliders), play professional sports, non-professional sports, engage in sexual activity (either hetero, homo, or “other”), and otherwise function as a carbon-based life form. Be advised and notify the doctor of any other medications you may be taking or anticipate to take at some point in the future.

4 throckmorton 12.11.07 at 3:27 pm

Like many legal arguments, the question is not what caused the accident but who to blame in order to get money. The medical response will defensive but not in the paperwork way. Instead, it will be to avoid to medicate. You wont get sued for a car accident because of a medication if you don’t prescribe it. We have seen that warnings and well documented counselling sessions with patients do not hold up to aggressive attorneys in search of deep pockets. To prevent being hit with “joint by severable” cases physicians will choose not to medicate and report everyone to the DMV.

5 Mark Schomers 12.11.07 at 5:45 pm

I am trying to imagine how costly my workmans comp insurance is going to be with all the additional time employees will feel the need to remain away from work. Will the insurance companies be obligated to pay for “medical transport ambulances” to ferry the injured party back and forth to follow-up office visits with the doctors? The cost of such foolishness must simply escape these “learned” lawmakers.

6 Anonymous Attorney 12.12.07 at 11:24 am

Mark:

The answer to your question about medical transport is “yes,” as I see it on the ground. These services are astronomically expensive, with per-mile charges that make me wonder if the vehicle is equipped with a wet bar. As I imagine it, these services probably must carry very pricey insurance themselves, and are probably targets of frequent litigation because of the touchy nature of their passengers.

7 Tom T. 12.12.07 at 11:57 am

Ted, I’m not sure why you think this decision will change a doctor’s conduct. According to the court, the doctor already owes a duty to his own patient under state law to disclose the risks that a prescribed medication might pose for driving. The incentive you cite is already there, and is either happening or is not. This decision shouldn’t change that.

Think of it this way: Is it reasonable to believe that when Dr. Florio told his patient that he was now OK to drive, the doctor thought to himself, “well, if I’m wrong, I might be liable for my patient’s injuries to himself, but at least I won’t get tagged if he runs into somebody else”? I find that unlikely.

Comments on this entry are closed.