Whether the prescriptions actually caused Mr D to act was not the issue, said the court. Rather, the question was whether a duty to nonpatients exists based on the act of prescribing. In its decision, the court wrote, “Healthcare providers perform a societal function of undoubted social utility. But they are not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescriptions cause physical injury to nonpatients. We uphold a duty of healthcare providers to nonpatients in the affirmative act of prescribing medication, and reverse the district court’s conclusion to the contrary.” After this decision, Ms T settled out of court with the plaintiffs. However, the physician, Dr H, was still a party to the lawsuit. The lawsuit claimed that Dr H was negligent as a consulting physician for not reaching out to Ms T to discuss her treatment decisions. The physician filed his own motion to dismiss.

Regarding the physician’s responsibility, the court concluded that it was the NP’s duty, not the physician’s, to consult with the physician about the prescriptions that she was writing, and the court dismissed the case against Dr H.

Legal background

After this case was decided, the legislature in the state where this case took place enacted the “Nonpatient Cause of Action,” recognizing a legal relationship between a healthcare provider and nonpatients in negligence claims. There is no need to establish a clinician–patient relationship to bring a negligence claim against a healthcare provider. The language of the statute requires that to establish a malpractice action against a healthcare provider, a nonpatient plaintiff must show:

  • That the nonpatient plaintiff suffered an injury;
  • That the injury was proximately caused by an act or omission of the healthcare provider; and,
  • That the healthcare provider’s act or omission was conduct that manifests a knowing and reckless indifference toward, and a disregard of, the injury suffered by the non-patient plaintiff.

Protecting yourself

This case never got to the causation part, so it is hard to tell whether Ms T’s prescribing was a contributing factor to Mr D’s actions. However, a few things can be learned from this. It is essential to always keep up-to-date concerning medications and controlled substances and the interactions and possible adverse reactions that may occur. 

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It also is important to review your nurse practice act and rules and requirements for consultation, particularly with controlled substances. Remember, the onus is on you to seek advice from your consulting physician. When in doubt about a prescription, or a course of treatment, speak to your consulting physician. Ms T might have protected herself and her patient and his family, if she had consulted with Dr H before writing new prescriptions and increasing dosages for her patient.

Ms Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, NY.