Issue link: https://viewer.e-digitaledition.com/i/696420
A PHYSICIAN MUST POSSESS AND USE "THAT RE A SONABLE DEGREE OF LE ARNING AND SKILL THAT IS ORDINARILY POSSESSED BY PHYSICIANS AND SURGEONS IN THE LOCALIT Y WHERE HE £OR SHE¤ PR ACTICES." 1 THIS IS REFERRED TO A S THE "DUT Y OF CARE." A DUT Y OF CARE IS A LEGAL OBLIGATION AND E XISTS BECAUSE OF THE CONTR ACTUAL REL ATIONSHIP BE T WEEN A PATIENT AND A PHYSICIAN. WHEN A PHYSICIAN DE VIATES FROM THE APPLICABLE STANDARD OF CARE AND THE DE VIATION CAUSES INJURY TO A PATIENT, THE PHYSICIAN IS LIABLE FOR DAMAGES CAUSED BY HIS OR HER MEDICAL NEGLIGENCE. COURTS HAVE FOUND that physicia ns have a dut y to wa rn patients about the side ef fects a nd potentia l risks of the d r u g s t hey prescr ibe. R ecent ly, t he New York Court of Appea ls, our highest court, was presented with the question: "Does that duty to wa rn ex tend to third pa r ties who a re injured? " For exa mple, if your patient took a prescription drug t hat caused d rowsi ness a nd you did not wa rn the patient of the potentia l side effects a nd he or she got into a ca r a ccident , what lega l r i g ht s does t he injured t hird pa r t y have a ga inst you the physicia n? In t he ca se Dav is v. Sout h Na ssau C o m m u n i t i e s H o s p i t a l , L o r r a i n e Wa lsh wa s t reated at Sout h Na ssau Communities Hospita l for abdomina l pa in. Wa lsh was given severa l medica- tions, one being a na rcotic to reduce the pa in. She was discha rged from the hospita l and approximately 20 minutes later fel l unconscious whi le driv ing, crossed a double yellow line, a nd col- lided with a bus. The bus driver, Edwin Dav is, wa s injured a nd commenced a lawsuit a lleg ing the medica l providers fa i led to wa r n Wa lsh t hat t he d r ugs prescribed could impa ir her abilit y to drive. The lower cour t dismissed the law su it , hold i n g t h at t he phy sici a n a nd t he physicia n a ssista nt owed no dut y of ca re to the bus driver. The f irst appea l a ff irmed that decision, but the Court of Appea ls ruled that the medica l providers have a dut y to wa rn patients of the possible da ngers of driving while on certain medications and that failure to wa rn ex tends lega l rights to t hird pa r ties. The cour t noted t hat cour ts have "historica lly proceeded ca refully and with reluctance to expand an exist- ing dut y of ca re but it wa s wa rra nted based on the facts of this case." The law has been expa nded to hold that physi- cia ns a nd hospita ls may be liable to the genera l public if a patient is not warned of the risks or side eects of certain types of medications. This is a significant change from prior New York case law. While the court reiter- ated that it is already the function of a physician to advise the patient of the risks and possible side eects of prescribed medications, the court for the first time expanded the scope of persons to whom the physician may be responsible for fail- ing to fulfill that responsibility. The important takeaway is that not only must you advise and warn patients of the risk of medications and other treatments, but you must also clearly document in the medical record that the patient has been advised of the side effects of the medication and has been advised not to drive or operate heavy machinery. Keep abreast of FDA prescription drug warnings and recalls. Ask your patients to provide a list of all prescription and over-the-counter drugs being ta ken. Advise patients of the medical rationale for the drug being prescribed. Inform patients of potential food-drug and drug-drug interactions. Patients should be advised to read a ll drug labels carefully and to call with any questions. Do not rely on other profes- sionals to warn patients about risks and complications of prescribed medications. It is the prescribing physician's primary duty to relay information to the patient. Remember to document a ll disclosures and warnings made to patients. Laura L . Spring is a member of CCB Law, a boutique law fir m focu sed on providing counsel to physicians and h e a l t h c a r e p r o fe s s i o n a l s . S h e c a n b e re a c h e d a t l s p r i n g @ c cb l a w .c o m or 315-477-6293. ■ 1. Pike v. Honsinger 155 N.Y. 201, 209 (1898) A PHYSICIAN'S DUTY TO WARN ... A DOCTOR'S DUTY OF CARE EXTENDED TO THIRD PARTIES BY LAURA L. SPRING, ESQ. 2 2❱❱❱❱❱ L E G A L E A S E