A 75-year-old man is being treated for asbestosis, chronic bronchitis, emphysema, and hypertension. He has recently completed chemotherapy for lung cancer that had spread to the lymph nodes. Apparently drowsy from side effects of his medications, he passes out while driving and kills a 10-year-old boy standing on a sidewalk. Can the child’s mother sue the prescribing clinician for negligence?

“Yes,” says the Massachusetts Supreme Court. The court recently ruled that a jury should decide whether the primary-care clinician was negligent when he failed to warn the man not to drive while on medications known to cause drowsiness, dizziness, light-headedness, fainting, altered consciousness, and sedation. The majority of the judges held that the clinician owed a duty to everyone who could foreseeably be put at risk by that failure to warn, such as a young boy who was in the wrong place when the man lost control of his car.

This ruling raises several questions: Will it have an influence on courts in other states? Will it increase the exposure of prescribing clinicians? Could it cause malpractice premiums to rise? The answer to all of these questions is “maybe.” How lawyerlike, you may say, but each decision depends upon a specific set of facts.

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It’s important to note that the lawsuit was brought as a case of common negligence, not medical malpractice. In order to prove negligence, a plaintiff must show that the other person failed to use the care that an ordinary, prudent person would have exercised under similar circumstances and that the plaintiff was injured as a result of that failure. Medical malpractice introduces an additional element to the mix: a duty of care to the patient.

The Massachusetts decision does increase the pool of possible plaintiffs, but as a nurse practitioner, I’m not alarmed. As long as I discuss the side effects of medications I’ve prescribed with my patients and document my advice and warnings, I should not have a problem. Local newspapers in Massachusetts report that malpractice insurance companies are taking a wait-and-see attitude toward raising premiums.

Courts have held individuals liable for negligence in a variety of situations in which they had no relationship with the injured party. For example, a homeowner who failed to properly store a gun in her home was held liable to the victim when her son found the gun and shot someone. A liquor-store owner was found liable when alcohol was sold to a minor who drank and then drove a car, striking a cyclist.

Should medical professionals be less liable than a bartender who serves enough liquor to intoxicate and doesn’t confiscate keys? I say probably not. A clinician isn’t going to be present when a patient takes his medication each day, but she will have a pretty good idea that certain medications can cause a patient to operate at less-than- full capacity and should warn him accordingly.

The bottom line:

Advise your patients of the side effects of the medications you prescribe to them. The Massachusetts judges found that relying on a pharmacist or brochures is inadequate; you must warn your patients yourself. As the concurring justice wrote: “The duty [to advise] described here does not impose a heavy burden, because it requires nothing from a doctor that is not already required by his duty to his patient.”

The case against the clinician has yet to go to trial. You can read a copy of the opinion issued by the Massachusetts Supreme Court by visiting www.suffolk.edu/sjc/archive/2007/SJC_09869.html (accessed April 7, 2008).

Carolyn Buppert, NP, JD, is a healthcare attorney based in Bethesda, Md. She specializes in legal issues that affect NPs.