Wilschinsky v. Medina, No. 17658

Docket NºNo. 17658
Citation775 P.2d 713, 108 N.M. 511, 1989 NMSC 47
Case DateJune 29, 1989
CourtSupreme Court of New Mexico

Page 713

775 P.2d 713
108 N.M. 511
Tui WILSCHINSKY, Irene Rokstad Wilschinsky, in their own
behalf and as parents and next friends of Zoe
Wilschinsky, Taflyn Wilschinsky, and
Tara Rokstad, Plaintiffs,
Helen MEDINA and Michael Straight, M.D., Defendants.
No. 17658.
Supreme Court of New Mexico.
June 29, 1989.

Page 714

[108 NM 512] Stephen Durkovich, Albuquerque, for plaintiffs.

Rodey, Dickason, Sloan, Akin & Robb, P.A. and W. Mark Mowery, Santa Fe, for defendant, Medina.

Campbell & Black, P.A., John H. Bemis and Bradford C. Berge, Santa Fe, for defendant, Straight.

Hatch, Beitler, Allen & Shepherd, P.A. and Phyllis A. Dow, Albuquerque, amicus curiae, New Mexico Medical Soc.


BACA, Justice.

This certification from the United States District Court raises a fundamental question whether a third party, who is injured by a person under the influence of medications administered to her as an outpatient in a doctor's office, can recover directly from the doctor when and if the doctor failed to follow proper medical procedures, and when and if it can be proven the third party suffered injuries which proximately resulted from that doctor's act of malpractice. The district court certified the following three questions to this court:

1. Does the legal duty of a physician practicing in New Mexico to use reasonable care in treating a patient extend only to the patient or also to others who may foreseeably be harmed by the physician's negligent treatment of the patient?

2. If the legal duty extends to others in addition to the patient, what is the nature and extent of the duty owed to the plaintiffs in this case?

3. If the legal duty extends to others in addition to the patient, does the New Mexico Medical Malpractice Act ... [NMSA 1978, Secs. 41-5-1 to 41-5-28 (Repl.Pamp.1986) ] apply to claims based on malpractice asserted by non-patients against a physician who is qualified under the provisions of the Medical Malpractice Act?

The issues certified arose under the following circumstances. Plaintiffs Tui Wilschinsky and members of his family filed suit in the United States District Court against Helen Medina, alleging Medina was the driver of a car that struck and injured Wilschinsky in the presence of his family. Plaintiffs then filed an amended complaint seeking to join Dr. Michael Straight as an additional defendant, alleging Dr. Straight was negligent in administering to Medina two drugs that have known side effects causing drowsiness and impairment of judgment. Dr. Straight moved to dismiss.

The facts, as developed by depositions of the parties, indicate on the morning of the accident Medina was suffering from a debilitating migraine headache. She had taken the drug Percodan at about 8:00 a.m. Dr. Straight had previously prescribed this drug for Medina's headache problems, which Dr. Straight had been treating since October 1983. On the morning of August 7, 1985, Medina went to Dr. Straight's office and complained the Percodan was not helping. Dr. Straight administered by injection a drug named Meperidine, which is composed of equal parts of Phenergan and Demerol. When Medina complained of nausea, Dr. Straight administered a second drug, either Vistaril or Tigan, to combat Medina's nausea. It is unclear exactly how long Medina remained in the office, and exactly how much time elapsed between the administration of these drugs and her accident. According to Dr. Straight, roughly seventy minutes may have passed between the first injection and Medina's accident. Again according to Dr. Straight, the drug Meperidine would have peaked in Medina's system between thirty and fifty minutes after the injection. Meperidine's effects may have been enhanced by both prior and subsequent drugs.

The above facts taken together show that Dr. Straight administered drugs in his office to Medina, which drugs could cloud a person's judgment and physical abilities and create a risk to that person in driving a car; that Medina was involved in a serious car accident within a short time of receiving medication; and that Wilschinsky suffered injuries from that accident. Based on these facts, we granted certification because whether a doctor may owe a duty to

Page 715

[108 NM 513] a third person such as Wilschinsky involves an important interpretation of New Mexico law, and our answer to that question would materially advance the federal litigation by resolving whether Dr. Straight can be joined in the Wilschinskys' lawsuit.1

Whether a practicing physician in New Mexico owes a duty to third persons who foreseeably may be harmed by the physician's negligence in treatment of his patient is an issue of first impression in this state. In addressing this question generally, we focus on the patient-care setting that gave rise to this certification. The recent growth in use of outpatient clinics, day surgery units, and extensive office procedures is a new development in health care, unforeseen at the time when most state legislatures adopted malpractice legislation. It is encouraged by insurance policies that offer only partial coverage for patients admitted into hospitals over night. As more extensive medical procedures are shifted to an outpatient setting, the risk of injuries to the general public from patients driving under the influence of drugs increases.

The existence of duty is a question of law. Schear v. Board of County Comm'rs, 101 N.M. 671, 687 P.2d 728 (1984). In analyzing whether a duty exists we note the following language from Prosser:

Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.

W. Page Keeton, Prosser & Keeton on the Law of Torts, Sec. 53, at 359 (5th ed. 1984) (footnote omitted).

The finding of a duty involves the court in a careful balancing. We must "take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant." Kirk v. Michael Reese Hosp. & Medical Center, 117 Ill.2d 507, 526, 111 Ill.Dec. 944, 953, 513 N.E.2d 387, 396 (1987). At the outset we note the salient alleged facts: testimony was offered to show the drugs administered included at least one narcotic; this narcotic's effect may have been enhanced by two additional drugs in Medina's blood stream; the effect of the narcotic would have peaked near the time of the accident; and the drugs have side effects that could impair a person's ability to make rational judgments and impair a person's ability to drive an automobile.

Heretofore, courts have recognized two sources of duty for the medical profession to third parties: when a doctor exerts control over a patient, or when a doctor is aware of threats against specific, identifiable third parties. In the control cases, courts have relied upon Section 315 of the Restatement (Second) of Torts to find a special relationship between doctor and patient, which creates a special duty to control that patient's actions. Restatement (Second) of Torts Sec. 315 (1965). This doctrine, holding institutions and doctors potentially liable for patients with known "dangerous propensities" has been recognized in New Mexico. See Kelly v. Board of Trustees, 87 N.M. 112, 529 P.2d 1233 (Ct.App.), cert. denied, 87 N.M. 111, 529 P.2d 1232 (1974); see also Stake v. Woman's Div. of Christian Serv., 73 N.M. 303, 387 P.2d 871 (1963). We do not find the facts here to raise an issue of patient control. Liability under these facts must stem from the doctor's control over his offices and the administration of powerful drugs in those offices, not from a duty to control a patient with known dangerous propensities.

A second, though not mutually exclusive, line of cases has followed from Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976). In Tarasoff, a psychiatrist, aware of specific threats to the life of an individual,

Page 716

[108 NM 514] abided by professional ethics in failing to disclose his patient's threats to authorities or to the person threatened. The court found the doctor breached a duty to warn when a specific, identifiable third party was known to the doctor. Again, this duty to warn specific, identifiable third parties is not an issue raised by the facts of this certification. The only issue raised by these facts is whether a doctor owes a duty to third parties from treatment of an outpatient when the doctor has given the patient an injection of drugs that could clearly impair the patient's ability to reason and to operate an automobile.

Cases from other jurisdictions have addressed similar, though not precisely equivalent facts. In Gooden v. Tips, 651 S.W.2d 364 (Tex.Ct.App.1983), the Texas Court of Appeals concluded that a doctor, who had prescribed quaaludes to a patient with a known propensity to abuse drugs, might be liable to a third party injured in an automobile accident. The Gooden court specifically found no duty "to control the actions of the patient," but only a duty to warn the patient. Gooden, 651 S.W.2d at 371. The Gooden court relied upon authority from several jurisdictions. See Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521 (Tenn.1980) (cause of action for indemnity by trucking company for doctor's negligent failure to perform an adequate physical upon company's driver); Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973) (cause of action by injured pedestrian against doctor for failing to diagnose patient's epileptic condition); Kaiser v. Suburban Transp. Sys., 65 Wash.2d 461, 398 P.2d 14 (1965) (cause of action for failing to warn patient of dangerous side effects of drug prescribed to bus driver).

Both Gooden and Kaiser created third-party liability when a doctor apparently had negligently prescribed a potentially dangerous drug. The Illinois Supreme Court,...

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71 practice notes
  • Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital, No. S033710
    • United States
    • United States State Supreme Court (California)
    • July 28, 1994
    ...actions against health care providers to effectuate legislative purpose of reducing insurance premiums]; Wilschinsky v. Medina (1989) 108 N.M. 511, 516-518, 775 P.2d 713, 718-720 [extending scope of New Mexico Medical Malpractice Act to third party causes of action even though not expressly......
  • Salopek v. Friedman, No. 30,307.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • June 4, 2013
    ...care in New Mexico by providing a framework for tort liability with which the insurance industry could operate.” Wilschinsky v. Medina, 108 N.M. 511, 516, 775 P.2d 713, 718 (1989); see Baker v. Hedstrom, 2012–NMCA–073, ¶¶ 22–23, 284 P.3d 400, (recognizing why the Act was adopted), cert. gra......
  • Leger v. Leger, NO. A-1-CA-35807
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 28, 2018
    ...of all "malpractice claims" for compensation covered by the MMA. One of these precedents, Wilschinsky v. Medina , 1989-NMSC-047, ¶ 26, 108 N.M. 511, 775 P.2d 713, held that "the [L]egislature intended to cover all causes of action arising in New Mexico that are based on acts of malpractice.......
  • Davis v. S. Nassau Cmtys. Hosp., No. 163
    • United States
    • New York Court of Appeals
    • December 16, 2015
    ...“within the scope of foreseeable risk, by virtue of (the physician's) special relationship with (the patient)”], Wilschinsky v. Medina, 108 N.M. 511, 514–515, 775 P.2d 713, 716–717 [1989] [concluding that physicians who inject a patient “with drugs known to affect judgment and driving abili......
  • Request a trial to view additional results
73 cases
  • Leger v. Leger, S-1-SC-37450
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 2, 2021
    ...that third-party claims "fall[ ] within the purpose of the [MMA] and should be pursued according to its guidelines." 1989-NMSC-047, ¶ 28, 108 N.M. 511, 775 P.2d 713.2. Common law indemnity {18} "Traditional indemnification provides an indemnitee, who has been held liable for damages, the ri......
  • Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital, S033710
    • United States
    • United States State Supreme Court (California)
    • July 28, 1994
    ...actions against health care providers to effectuate legislative purpose of reducing insurance premiums]; Wilschinsky v. Medina (1989) 108 N.M. 511, 516-518, 775 P.2d 713, 718-720 [extending scope of New Mexico Medical Malpractice Act to third party causes of action even though not expressly......
  • Lovelace Medical Center v. Mendez, 18766
    • United States
    • New Mexico Supreme Court of New Mexico
    • January 7, 1991
    ...been concerned with the allocation of the financial consequences of a defendant's negligence. See e.g., Wilschinsky v. Medina, 108 N.M. 511, 516, 775 P.2d 713, 718 (1989) ("We do not live in a risk-free society, but rather a risk-allocative one."); cf. 4 Restatement (Second) of Torts Secs. ......
  • Coombes v. Florio, SJC-09869.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 10, 2007
    ...cases, are lacking here. This distinction was critical to two decisions by the Supreme Court of New Mexico. Compare Wilschinsky v. Medina, 108 N.M. 511, 775 P.2d 713 (1989) (physician owed duty to driving public when administering drugs to patient in office), with Lester v. Hall, 126 N.M. 4......
  • Request a trial to view additional results
1 books & journal articles
  • Palsgraf Meets Medicine: Physician Beware! The Unidentified Nonpatient and the Duty of Care.
    • United States
    • Suffolk University Law Review Vol. 54 Nbr. 1, January 2021
    • January 1, 2021
    ...1366 (Me. 1987) (requiring physician duty to warn about patient's eye patch, though patient unaware of risks); Wilschinsky v. Medina, 775 P.2d 713, 717 (N.M. 1989) (extending duty to physicians to warn "persons injured" by patient injected with unpredictable drugs); Zavalas v. State, 861 P.......

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