A physician must possess and use “that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he (or she) practices.”1 This is referred to as the “duty of care.” A duty of care is a legal obligation and exists because of the contractual relationship between a patient and a physician. When a physician deviates from the applicable standard of care and the deviation causes injury to a patient, the physician is liable for damages caused by his or her medical negligence.
Courts have found that physicians have a duty to warn patients about the side effects and potential risks of the drugs they prescribe. Recently, the New York Court of Appeals, our highest court, was presented with the question: “Does that duty to warn extend to third parties who are injured?” For example, if your patient took a prescription drug that caused drowsiness and you did not warn the patient of the potential side effects and he or she got into a car accident, what legal rights does the injured third party have against you the physician?
In the case Davis v. South Nassau Communities Hospital, Lorraine Walsh was treated at South Nassau Communities Hospital for abdominal pain. Walsh was given several medications, one being a narcotic to reduce the pain. She was discharged from the hospital and approximately 20 minutes later fell unconscious while driving, crossed a double yellow line, and collided with a bus. The bus driver, Edwin Davis, was injured and commenced a lawsuit alleging the medical providers failed to warn Walsh that the drugs prescribed could impair her ability to drive. The lower court dismissed the lawsuit, holding that the physician and the physician assistant owed no duty of care to the bus driver. The first appeal affirmed that decision, but the Court of Appeals ruled that the medical providers have a duty to warn patients of the possible dangers of driving while on certain medications and that failure to warn extends legal rights to third parties. The court noted that courts have “historically proceeded carefully and with reluctance to expand an existing duty of care but it was warranted based on the facts of this case.” The law has been expanded to hold that physicians and hospitals may be liable to the general public if a patient is not warned of the risks or side effects of certain types of medications.
This is a significant change from prior New York case law. While the court reiterated that it is already the function of a physician to advise the patient of the risks and possible side effects of prescribed medications, the court for the first time expanded the scope of persons to whom the physician may be responsible for failing to fulfill that responsibility.
The important takeaway is that not only must you advise and warn patients of the risk of medications and other treatments, but you must also clearly document in the medical record that the patient has been advised of the side effects of the medication and has been advised not to drive or operate heavy machinery.
Keep abreast of FDA prescription drug warnings and recalls. Ask your patients to provide a list of all prescription and over-the-counter drugs being taken. Advise patients of the medical rationale for the drug being prescribed. Inform patients of potential food-drug and drug-drug interactions. Patients should be advised to read all drug labels carefully and to call with any questions. Do not rely on other professionals to warn patients about risks and complications of prescribed medications. It is the prescribing physician’s primary duty to relay information to the patient. Remember to document all disclosures and warnings made to patients.
Laura L. Spring is a member of CCB Law, a boutique law firm focused on providing counsel to physicians and healthcare professionals. She can be reached at firstname.lastname@example.org or 315-477-6293.
- Pike v. Honsinger 155 N.Y. 201, 209 (1898)