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SUZANNE DONNELLY*
INTRODUCTION
Who bears the risk of injury when the driver of a vehicle suffering from
a known seizure disorder gets into a collision: the driver who was unable to
control the car, the injured third party, or the doctor who knew of the
seizures but never warned the patient of the inherent risks?1 The
Massachusetts Supreme Judicial Court (SJC) answered all of these questions
in its recent decision, Medina v. Hochberg.2 There, the Court held that a
physician owes no duty to a nonpatient third party to warn his patient not
to drive due to risks associated with the patients health condition.3 Medina
clarified the prior confusion among Massachusetts courts regarding the duty
imposed on a physician to unrelated third parties and narrowed the scope
of the Courts earlier holding in Coombes v. Florio, which established a
physicians duty to nonpatient third parties when the physician has
* Candidate for Juris Doctor, New England Law | Boston (2015). M.A., History, Fordham
University (2006). B.A., American Studies and History, Fordham University (2005). I would like
to thank my husband, Tom, and my parents, Dan and Marie, for their unwavering support
throughout law school and in all of my endeavors.
1
See generally Medina v. Hochberg (Medina II), 987 N.E.2d 1206, 1208 (Mass. 2013) (holding
that a physician owes no duty to a third person under ordinary negligence principles or as a
result of a purported special relationship).
2
3
See id.
See id.
43
44
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Background
A. Negligence
See id.
See id. at 120913.
6 See, e.g., Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) (establishing a three-part balancing
test to determine whether a physician should owe a duty to a nonpatient third party).
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specific harm does not need to be foreseeable, but the injury that resulted
from the negligent conduct must have been likely to occur.13
B. A Physicians Duty
Foreseeability is important for physicians due to their inherent
relationship with their patients.14 A physician owes a legal duty to a patient
to provide medical treatment that meets the standard of care of the average
qualified physician in his or her area of specialty.15 In some cases, this
standard of care may require a physician to warn a patient of the risks
associated with the patients treatment.16 Most jurisdictions view a
physicians failure to warn a patient not to drive while on particular
prescription medication as a valid cause of action. 17 Courts have held that a
physician negligently puts the safety of both his own patient and nonpatient
third parties at risk in failing to issue this warning in these situations.18 In
issuing a warning to the patient, a physician satisfies his duty to ensure the
safety of both the patient and the general public.19
Many courts, though, have refused to extend a physicians duty to
encompass potential effects on nonpatients where the physician has not
acted affirmatively.20 Courts often hesitate to broaden a physicians duty of
care to include nonpatients because of the danger of increased litigation21
and the potential conflict between the physicians duties to his patient and
potential duties to third parties.22 While many courts refuse to impose a duty
altogether, others take a more flexible, fact-driven approach in evaluating
whether a physician has such a duty. 23 Webb v. Jarvis illustrates this more
13 Id.; see, e.g., Palsgraf, 162 N.E. at 100 (describing that in a negligence action, the risk posed
must be within the range of apprehension).
14 See Amended Brief for Plaintiff-Appellant at 13, 16, Medina II, 987 N.E.2d 1206 (Mass. 2013)
(No. SJC-11178) (explaining that a duty should be imposed on physicians when it arises through
a special relationship with a patient and when the risk of harm is foreseeable).
15 Medina II, 987 N.E.2d at 120910 (citing Brune v. Belinkoff, 235 N.E.2d 793, 798 (Mass.
1968)); see also DAN DOBBS, DOBBS LAW OF TORTS 242 (2000).
16 Vasa v. Compass Medical P.C., 921 N.E.2d 963, 96566 (Mass. 2010).
17 See GREGORY G. SARNO, 43 AMERICAN JURISPRUDENCE PROOF OF FACTS 12 (rev. 2d. ed.
Supp. 2013).
18
20
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v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995) (noting several factors that should be considered to
determine whether or not a duty should be imposed on physicians).
24 See 575 N.E.2d at 995; see also McCall, 913 S.W.2d at 153 (adopting a similar balancing test,
which considered several factors, one of which was the foreseeable probability of the harm of
injury occurring); Cherie N. Wyatt, Comment, Driving on the Center Line: Missouri Physicianss
Potential Liability to Third Persons for Failing to Warn of Medication Side Effects, 46 ST. LOUIS U. L.J.
873, 89091 (2002) (describing Missouris adoption of a six-factor policy analysis to determine a
physicians duty).
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35
Id.
Id. at 326, 328.
37 Medina II, 987 N.E.2d 1206, 1207 (Mass. 2013).
38 Medina I, 29 Mass. L. Rptr. at 328.
39 Id.
40 Id.
41 Id.
42 Id.
43 Id. at 329.
44 Medina I, 29 Mass. L. Rptr. at 329.
45 Id.
36
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and a patient giving rise to such a duty.46 Therefore, the Superior Court
determined that Hochbergs duty did not extend to Medina through
Riskind.47
On appeal, the SJC affirmed the lower courts decision, concluding that
a physician owes no duty to a third party as a result of a purported special
relationship between the physician and his patient.48 Further, Hochberg did
not owe a duty of care to Medina under ordinary negligence principles.49
The Court also declined to extend a narrow rule promulgated in a prior case
that a physician owes a limited duty to third parties to warn patients of
known side effects of medications prescribed by that physician. 50
Regarding ordinary negligence principles, the SJC asserted that the duty
Medina requested from Hochberg was far broader than the Court was
willing to impose.51 The SJC distinguished prior precedents because Medina
dealt with a naturally-occurring brain tumornot the act of prescribing
medication.52 The Court cautioned that if a duty was imposed in Medina,
physicians would have to warn patients about the dangers associated with
driving based on any number of preexisting health conditions.53 This would
impose a duty on physicians to warn the general public about the effects of
a multitude of medical conditions, not any act of the physician. 54
The SJC then discussed, at length, various policy implications of
extending liability to physicians such as Hochberg. 55 While Medina asserted
that imposing a duty would enhance public safety, the Court believed this
duty would have a detrimental effect on the physician-patient relationship:
the physician would be more concerned with potential litigation than his
patient.56 The Court also noted that litigiousness against physicians by third
parties would further burden an already struggling health care system. 57
Lastly, the Court commented that patients privacy and confidentiality,
which should always be protected, would be threatened with this increase
in litigation upon the release of personal medical records during discovery. 58
46
Id. at 331.
Id. at 330.
48 Medina II, 987 N.E.2d 1206, 1208 (Mass. 2013).
49 Id.
50 Id.
51 Id. at 121112.
52 Id. at 1212.
53 Id.
54 Jarmie v. Troncale, 50 A.3d 802, 825 (Conn. 2012).
55 Medina II, 987 N.E.2d at 121213.
56 Id. at 1213.
57 Id.
58 Id. (citing Coombes v. Florio, 877 N.E.2d 567, 588 (Mass. 2007)).
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For these reasons, the SJC declined to expand the Coombes holding and
determined that Hochberg was entitled to summary judgment.59
ANALYSIS
III. Medina Was Correctly Decided Because It Aligns Closely with
Recent Trends in Other Jurisdictions
As evident in Massachusetts case law,60 the jurisprudence regarding this
issue is decidedly mixed.61 However, the recently emerging trend among
other jurisdictions is that a physician owes a limited duty to third parties
only in very specific instances, and the SJCs decision in Medina reflects this
notion.62 These circumstances are usually confined to situations involving
special relationships between mental health providers and patients, but
courts have also found liability when physicians have a duty with respect to
contagious diseases and identifiable third parties.63 Additionally, the SJC
and other courts have acknowledged instances of limited physician liability
when the physician has taken some affirmative act with respect to his
patient, such as administering or prescribing medication to a patient which
results in a third-party injury.64 Absent these exceptional circumstances,
however, courts have been reluctant to impose a duty on physicians to
nonpatient third parties because the consequential litigation would be
conceivably limitless.65
Justice Cordys reining in of a physicians duty in Medina exemplifies the
current trend in medical malpractice jurisprudence, and other jurisdictions
59
Id.
Compare Leavitt v. Brockton Hospital, Inc., 907 N.E.2d 213, 219 (Mass. 2009) (holding that
a hospital was not negligent for releasing a medicated patient who injured a police officer
during a vehicular collision because the accident fell outside the scope of foreseeable risk), and
Cottam v. CVS Pharmacy, 764 N.E.2d 814, 821 (Mass. 2002) (holding that a pharmacy has no
duty to warn a customer of the potential side effects of the prescription drug it provides if the
pharmacy has no specific knowledge of an increased danger to a particular customer), with
Coombes v. Florio, 877 N.E.2d 567, 575 (Mass. 2007) (discussing that a physician owes a duty of
reasonable care to everyone foreseeably put at risk by the physicians failure to warn of the side
effects of his or her treatment of a patient).
61 Compare Jarmie v. Troncale, 50 A.3d 802, 828 (Conn. 2012) (concluding that the physician
owed no duty to warn his patient of potential driving impairments resulting from his medical
condition), with Duvall v. Goldin, 362 N.W.2d 275, 279 (Mich. Ct. App. 1984) (holding that
physician had a duty to inform his epileptic patient not to operate a motor vehicle).
62 See Jarmie, 50 A.3d at 825; Medina II, 987 N.E.2d at 1213.
63 LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 305 (2d ed. 2008).
64 E.g., Coombes, 877 N.E.2d at 575.
65 See Kathryn J. Schwartz, Coombes v. Florio: The Negative Consequences of Leaving
Massachusetts Physicians Open to Endless Third-Party Liability, 45 NEW ENG. L. REV. 777, 780 (2011).
60
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66
See supra text accompanying notes 5159; see also Schmidt v. Mahoney, 659 N.W.2d 552,
55556 (Iowa 2003) (citing to public policy reasons in refusing to extend a physicians duty in
order to protect the general public from one who has a naturally-occurring disorder); Praesel v.
Johnson, 967 S.W.2d 391, 398 (Tex. 1998) (noting that though the benefit of warning an epileptic
patient not to drive is incremental, the consequences of imposing a duty are great).
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a bright-line rule will have on an innocent third party who has been injured
and is seeking redress.75
The SJC should have taken a more equitable approach rather than using
the rigid rule it imposed in Medina.76 Simply because a solution is costeffective and efficient does not necessarily mean that it is the best or most
just solution.77 Adopting a balancing test similar to that in Webb v. Jarvis,78
the SJC should have considered the foreseeability of harm to the injured
party in addition to analyses of the parties relationship and public policy
concerns.79
In applying the Webb test, the SJC likely would have come to the same
conclusion; however, the methodology utilized may potentially have more
just results in other situations.80 Using these three factors requires a court to
fully consider all the facts in any given case, making it more likely that
relevant subtleties are appropriately exposed, addressed, and analyzed. 81
The SJCs limited decision in Medina highlights this shortcoming.82 In
Medina, the SJC focused on Webbs first and third prongsthe parties
relationship and public policy concernsbut it failed to discuss
foreseeability, which is a crucial part of the analysis.83 Without analyzing this
important factor, future cases with an even more persuasive foreseeability
element will be summarily dismissed.84
The SJC all but ignored the issue of foreseeability in Medina, which
should have been a critical factor.85 Assessing the foreseeability element
75 Cf. id. at 1208 (granting a summary judgment motion against an innocent third partys
negligence claim, arising from a car accident caused by a neurologists patients seizure).
76 See id. at 1213 (holding a physician does not owe a duty to warn nonpatients and thus
Hochberg was entitled to summary judgment).
77 Contra Jarmie v. Troncale, 50 A.3d 802, 82223 (Conn. 2012) (refusing to recognize a duty
in this type of circumstance because it would open the door to an entirely new category of
claims . . . thereby greatly expanding the liability of health care providers and creating an
additional burden on the courts).
78
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86 See generally Webb v. Jarvis, 575 N.E.2d 992, 99598 (Ind. 1991) (utilizing a balancing test
that includes foreseeability in order to discern whether a duty should be imposed).
87
See id.
BLACKS LAW DICTIONARY, supra note 11, at 676.
89 Id. at 1293.
90 See id. at 676, 1293.
91 Webb, 575 N.E.2d at 997.
92 Id. (citing 3 FOWLER V. HARPER, FLEMING JAMES, & OSCAR S. GRAY, THE LAW OF TORTS
18.2 (2d ed. 1986)).
88
93
See id.
Id.
95 See Medina I, 29 Mass. L. Rptr. 326, 327 (Suffolk Super. Ct. 2011) (discussing the patients
health condition producing persistent sensory seizures, arm/shoulder stiffness, and shortness
of breath).
94
96
97
Id.
See id. at 32728.
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53
Yet, another observer could counter that the accident was completely
unforeseeable.98 In Medina, neither the Court nor the defendant believed that
Riskinds second grand mal seizure was foreseeable or probable, because he
only experienced one grand mal seizure prior to the collision and had been
asymptomatic of these extreme seizures for well over a year. 99 Since
Riskinds brain tumor was a naturally occurring condition, the Court opined
that Hochberg had no control over its trajectory and could only monitor his
patients progress and advise him accordingly.100
Courts and physicians, despite their more specialized knowledge, are
also somewhat conflicted about this issue.101 Though courts seemingly lean
more toward precluding physicians liability because of policy concerns,
many physicians are unsure how to best advise patients, particularly in the
absence of formalized national guidelines or recommendations for driving
restrictions for patients with brain tumors.102 The physician must use his or
her best judgment and act as a reasonably prudent physician would act in
the same or similar circumstances; this discretionary, fact-specific inquiry
remains open to interpretation.103
Differing interpretations as to whether or not Medina was a foreseeable
victim are also likely.104 Medina is a member of the general public and had
no connection or relationship to Riskind or Hochberg; his involvement in the
accident may have been purely coincidental.105 Though one could interpret
this concept more broadly by asserting that any victim in this situation is
within a class of victims to whom the risk of harm is foreseeable106 due to the
likelihood of an accident occurring, this liberal reading is unlikely to
succeed.107 Thus, while the accident and resulting injury could potentially be
considered foreseeable due to Riskinds medical history, it would be difficult
to prove that Medina specifically was a foreseeable victim. 108
98
See id. at 327 (noting that the patients condition seemed under good control and that he
had been seizure free for an extended period of time).
99
106
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112
116
117
Id.
Id.
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55
CONCLUSION
Medina v. Hochberg was properly decided due to overwhelming public
policy concerns disfavoring imposing liability on physicians with regard to
claims filed by nonpatient third parties. While a strong counterargument
clearly exists to advocate for redress for injured parties as well as creating a
safer environment for motorists, the beneficial policy implications in finding
for the physician outweigh the former concerns. Though the SJC decided this
case correctly, it should have adopted a more flexible balancing test to
adequately address each plaintiffs unique claim. Specifically, the Court
should have incorporated foreseeability as a factor in its analysis, as this
element will weigh heavily in determining whether a duty against a
physician should be imposed. In doing so, the Court would have
simultaneously given the plaintiff a more equitable opportunity to be heard
118
123
124
Id.
Id.
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while reaching the correct conclusion: that in this specific instance, Dr.
Hochberg owed no duty to Medina.