Coombes v. Florio

• Citation: 877 N.E.2d 567,450 Mass. 182
• Decision Date: 10 December 2007
• Docket Number: SJC-09869.
• Parties: Lyn-Ann COOMBES, administratrix,<SMALL><SUP>1</SUP></SMALL> v. Roland J. FLORIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

877 N.E.2d 567

450 Mass. 182

Lyn-Ann COOMBES, administratrix,¹ v. Roland J. FLORIO.

SJC-09869.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 8, 2007.

Decided December 10, 2007.

William P. Rose (Peter L. Eleey, Marina Bay, with him) for the plaintiff.

Edward F. Mahoney, Boston, for the defendant.

Carl Valvo & John R. Hitt, Quincy, for Professional Liability Foundation, amicus curiae, submitted a brief.

Marsha V. Kazarosian, J. Michael Conley, Braintree, & Joseph C. Borsellino, Newton, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

BY THE COURT.

The judgment of the Superior Court granting the defendant's motion for summary judgment is reversed. The case is remanded to the Superior Court for further proceedings.

So ordered.

Separate opinions of Justice IRELAND, with whom Justice SPINA and Justice COWIN join; Justice GREANEY; Chief Justice MARSHALL; and Justice CORDY.

IRELAND, J. concurring, with whom Spina and Cowin, JJ., join.

In this case we consider whether a physician owes a duty of care to someone other than his patient for harm caused by his failure to warn the patient of the effects of his treatment of that patient. The decedent, Kevin Coombes, died of injuries he sustained when he was struck by an automobile driven by David Sacca. At the time of the accident Sacca was under the care of his physician, the defendant, Roland Florio. The plaintiff claims that the accident was caused when the side effects of the medication Dr. Florio prescribed caused Sacca to lose control of the automobile. The plaintiff sued Dr. Florio for negligence.¹ A judge in the Superior Court granted Dr. Florio's motion for summary judgment, on the ground that Dr. Florio owed no duty of care to anyone other than his own patient. The plaintiff appealed and we transferred the case on our own motion. Because I believe that Dr. Florio owes a duty of care to all those foreseeably put at risk by his failure to warn about the effects of the treatment he provides to his patients, I agree that this court should reverse the judgment of the Superior Court.

1. Background. I recite the facts in the light most favorable to the plaintiff, reserving details for later discussion. Dr. Florio became Sacca's primary care physician in 1999. By 2002, when the accident occurred, Sacca was seventy-five years old and had been diagnosed with a number of serious medical conditions including asbestosis, chronic bronchitis, emphysema, high blood pressure, and metastatic lung cancer that had spread to his lymph nodes. As the primary care physician, Dr. Florio coordinated the multiple specialists who were involved in Sacca's care, and was responsible for all of the prescription medication that Sacca used. By the time of the accident Sacca was visiting Dr. Florio six or seven times each year. Shortly after the cancer was diagnosed, in July, 2000, Dr. Florio warned Sacca that it would not be safe for him to drive during his treatment for cancer. Sacca obeyed the warning and did not drive until the fall of 2001, when treatment for his cancer concluded. At that time Dr. Florio advised Sacca that he could safely resume driving.

At the time of the accident Sacca had prescriptions from Dr. Florio for Oxycodone, Zaroxolyn, Prednisone, Flomax, Potassium, Paxil, Oxazepam, and Furosemide. Potential side effects of the drugs include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation.² According to the plaintiff's expert, when used in combination these drugs have the potential to cause "additive side effects" that could be more severe than side effects resulting from separate use. The plaintiff's expert also opined that the sedating effects of these drugs can be more severe in older patients, and that the standard of care for a primary care physician includes warning elderly or chronically ill patients about the potential side effects of these drugs, and their effect on a patient's ability to drive. Dr. Florio did not warn Sacca of any potential side effects. Before the accident occurred Sacca reported no side effects from the medication and had no trouble driving. Sacca's last visit to Dr. Florio before the accident was on January 4, 2002. At that visit, Dr. Florio did not discuss potential side effects and gave no warning about driving.

On the day of the accident, March 22, 2002, Sacca drove his automobile to do some errands. On his way home he lost consciousness and his automobile left the road and hit Coombes, who was standing on the sidewalk with a friend. Sacca regained consciousness shortly after the accident and was taken to a nearby hospital. He left the hospital against medical advice and the cause of the incident was never determined. The plaintiff's expert opined that the accident was probably caused by a combination of Sacca's medical conditions and the medication he was taking.

The plaintiff sued Dr. Florio for negligently prescribing medication without warning Sacca of the dangers posed by its side effects, and without warning Sacca not to drive. The case proceeded to the Superior Court, where a judge granted summary judgment for the doctor, ruling that there was no special relationship between Dr. Florio and Coombes, and that Dr. Florio owed Coombes no duty.³

2. Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). An order granting summary judgment will be upheld only if it relies on undisputed material facts and the moving party is entitled to judgment as a matter of law. Community Nat'l Bank v. Dawes, 369 Mass. 550, 556, 340 N.E.2d 877 (1976).

I begin by clarifying the nature of the plaintiff's claim. It is not a malpractice claim because it lacks a physician-patient relationship between plaintiff and defendant, an essential element of any malpractice claim. See St. Germain v. Pfeifer, 418 Mass. 511, 520, 637 N.E.2d 848 (1994). Instead, the plaintiff presents an ordinary negligence claim. As framed by the plaintiff's complaint, it is limited to Dr. Florio's failure to warn of the known potential side effects of the medications he prescribed.⁴

The plaintiff presents three different arguments supporting her claim that Dr. Florio committed a breach of a duty owed not only to Sacca, but also to Coombes. First, she argues that under ordinary common-law negligence principles Dr. Florio was negligent in prescribing medication without warning Sacca of their potential side effects, and that Dr. Florio's duty in this regard extended to Coombes because his injury was a foreseeable consequence of that negligence. Second, she argues that once Dr. Florio assured Sacca that it would be safe to drive he assumed a duty to warn Sacca of the dangers of driving while using the medications he later prescribed, and that this duty was owed to all those put at risk by affirming Sacca's ability to drive. Third, relying on this court's interpretation of the Restatement (Second) of Torts § 315 (1965), she argues that the special relationship between doctor and patient creates a duty of reasonable care that extends not only to a patient but to others put at risk by the medical care provided. The plaintiff's special relationship and assumed duty theories are inapplicable in this case.⁵ However, I agree that Dr. Florio owed a duty to Coombes under ordinary negligence principles.

"To recover for negligence, a plaintiff must show `the existence of an act or omission in violation of a . . . duty owed to the plaintiff[s] by the defendant." Cottam v. CVS Pharmacy, 436 Mass. 316, 320, 764 N.E.2d 814 (2002), quoting Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982). Whether a defendant owes a plaintiff a duty of reasonable care is a question of law that is decided "by reference to existing social values and customs and appropriate social policy." Cremins v. Clancy, 415 Mass. 289, 292, 612 N.E.2d 1183 (1993). "We have recognized that `[a]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others.' See Remy v. MacDonald, [440 Mass. 675,] 677, 801 N.E.2d 260 [(2004)] . . . . A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor. . . . Consequently, with some important exceptions, `a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.' Tarasoff v. Regents of Univ. of Cal., [17 Cal.3d 425,] 434-435[, 131 Cal. Rptr. 14, 551 P.2d 334 (1976)]." (Citations omitted.) Jupin v. Kask, 447 Mass. 141, 147, 849 N.E.2d 829 (2006). Although a jury are uniquely qualified to determine the scope of the duty at issue, see Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 137-138, 842 N.E.2d 930 (2006), "[t]he existence of a legal duty is a question of law appropriate for resolution by summary judgment." Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 261, 866 N.E.2d 901 (2007). "If no such duty exists, a claim of negligence cannot be brought." Remy v. MacDonald, supra.

In the context of medical professionals, this court has held that a doctor's duty of reasonable care, owed to a patient, includes the duty to provide appropriate warnings about side effects when prescribing drugs. Cottam v. CVS Pharmacy, supra at 321, 764 N.E.2d 814. As a result, "[p]hysicians . . . are required to inform their patients of those side effects they determine are necessary and relevant for patients to know in making an informed decision." Id. When the side effects in...