Monday, September 08, 2008

What Didn't I Tell You?

It's not specific to psychiatry, but this caught my eye, first in the Wall Street Journal, and then through their link in the Boston Globe.

So a woman in her 70's is getting chemotherapy. She is also on painkillers and complains to her doc that she's dizzy. Fourteen times. She then has a car accident and kills two people. The relative of one of the people who was killed sues the doctor who prescribed her medications for failing to tell her not to drive. The claim is that if the doctor had specifically told her not to drive, she wouldn't have. A similar case went to court last year.

I don't know the details of the case, it's just what I read in the on-line articles, and we all know the press sometimes presents things in interesting ways. The question gets to be, however, what exactly is the doctor responsible for when a medication is prescribed? Side effects may or may not happen: bottles are labeled by the pharmacy, should everyone be pre-emptively told not to drive? And once some does have a side effect, and knows they have it, is it still the physician's responsibility to state the obvious: you're sick, you're on a sedating medication, it's making you dizzy, don't drive or operate heavy equipment? Is it the physician's responsibility to even ask if the patient drives, or to absolutely ascertain that he doesn't? Is saying "don't drive" enough? Should the family be brought in and the keys be taken away? What about the not as obvious: the doctor never said to give up gymnastics on the balance beam. Or not to rock climb (...ClinkShrink!) which may be hazardous, meds or not.

So the striking thing about this story is that the suit wasn't filed by the patient, but by the survivor of the victim's behavior. So, like, if an engineer takes a medication and has an accident, can the family members of every one injured on the train sue the doctor who prescribed the medication that the engineer took? And what about the pharmacy? It's all kind of confusing.


Ladyk73 said...

Funny you post this. This is my last week temping (accounting) at a law office. I handed a settlement check to one of the atty, who is very good lawyer. We got into a heated discussion about civil ligation. He was trying to shake me up. We talked round and round...and abnout judgements (medical coast and loss of income...)

After being "cross examined" by one of the better atty's in town. I finnally stamped my foot and told him that judgement's for pain and suffering are the root of the cause of increased insurance costs. I told him that you could not put a price on pain and suffering. All people suffer at some time in their life.

He would basically say that yes, the doctor could be held liable.

However, he (thankfully) represents the defendants and insurance companies most of the time.

However, I do think it is important to remember that the health knowledge of most Americans is really pitiful. I do think that providers can protect themselves with patient information sheets. Clinics use them all of the time, more private practitioners should use them.

However, the pharmacist should take the heat. It is the pharmacist's job to dispense this information. Pharmacist's are rarely held accountable.

Roy said...

Oh, and at what point does the drug company which made the medication become suitably liable? If they warn about it in the package insert, are they "covered"?

I am aware of a case where the physician *clearly* warned about a known rare side effect, the patient indicated understanding that the drug should be slowly titrated, but the patient became, well, impatient, and escalated the drug too rapidly, resulting in the rare, severe, life-threatening and disfiguring condition. The case against the doc was settled out of court for fear that the injuries were so sympathetic that a jury would award money even in the absence of malpractice.

Viagra can cause loss of vision. If you drive anyway, are you just stupid or can you blame the doctor for not warning you against driving if you suddenly become blind?

Anonymous said...

Apart from the legal issue, I think it would definitely be helpful if the doctor said "don't drive" to this particular patient experiencing dizziness. Maybe it's obvious, but if she's like I am, then she tosses aside that sheet she gets from the doc/pharmacy. Then she gets dizzy. So she says "aha, I'm dizzy, I'll tell the doctor." But if nothing seems alarming to him about being dizzy, apart from it being a noted side effect of the medication and thus explainable, it is possible to walk away from the encounter thinking "no big deal."

It is sometimes hard as the patient to have the perspective on when something is bad enough to warrant attention or a change in medicine/behavior such as not driving. I'd think this is even more true in psychiatry.

If every time a patient used a medicine they read the package insert thoroughly and took precautions against all potential side effects, they would go crazy.

But that is all apart from the legal issues....

Anonymous said...

Patients need to take time to read about the medication they are taking. Otherwise, it's the pharmacist's responsibility to ensure that the patient is informed of possible drug interactions & side effects.

Anonymous said...

I think it's an abuse of the system to allow a case like that forward. The doctor is NOT responsible in my opinion! Anyone should know enough not to drive when dizzy.

Novalis said...

This is another example of the erosion of common sense. "Consumers" of all stripes desire "empowerment" in their affairs, including their medical treatment, but if anything goes awry, then it is conveniently the fault of the "expert." Power without responsibility--what could be better?


Anonymous said...

Tort reform anyone?

I agree that consumers should be responsible for reading the package insert and understanding the possible side-effects of the medication(s) they are taking. However, knowing that many won't take that step, it may be wise on the doctor's part to alert the pt to any dangerous side-effects, get the patient to acknowledge he/she understands, then document the conversation in the medical record. If nothing else, there is a legal record that you attempted to CYA in case any hungry lawyers come a-callin'.

What I don't understand is why the doctor was held liable after the patient drove dizzy 14 times! Common sense would seem to suggest the driver was aware of her impairment and therefore responsible for the outcome.

Our legal system is f'd.

Anonymous said...

I don't know this situation, so I'm not going to comment on that specific case. But, I do have a lot of concern with all the folks who take antipsychotics who are on the roads. Ultimately, I think the patient is responsible but I'm not even sure all those folks realize what they're taking is an antipsychotic since it's now being handed out for problems like depression. A friend of mine's sister takes Seroquel & rammed her car into a very obvious pole. If I see her on the road again after having taken Seroquel, I'll call the cops. It's dangerous & that's DUI.

I think if a shrink has prescibed a medication like an antipsychotic to be taken during the day, and they know that patient drives, then I think they have some responsibility to inform the patient. If they come to an appointment loaded up on Seroquel, are you going to let them walk out & get in their car?

Anonymous said...

So now the pharmacist should be held liable?
How many times have you been in a pharmacy waiting for a prescription? Maybe, you have just come from the doctor's office and don't feel well. Or maybe you have the kids with you or are on the cell phone. When the pharmacist talks to you, how much of that dialogue are you actually hearing?
Being informed is not the same thing as listening and understanding. What can you do when the patient ignores warnings by his/her doctor and pharmacist and doesn't bother to glance at the warning printed on the rx label?
Assuming the relevant info has been provided, why should the health care provider be held at fault for someone's stupidity?

Midwife with a Knife said...

Um... even my little brother (who tried to cauterize a bad cut on his hand with the heating element on his stove....he's brighter than he sounds, really!) knows you shouldn't drive while taking medicines that make you dizzy, and he has less common sense than I do!!!!

Anonymous said...

I am so glad my days temping at the law firm is almost over. I asked this lawyer how he can sleep at night. He told me his primary ethical responsibilty is to defend his client to the best of his ability. I asked him what he felt about BS cases. He told me that the jury would see the BS. The is all about the jury.

This all makes me ill. You can pretty much sue anyone for anything...

I think the best thing to do is do your best, and ensure that you get a good insurance company (which may not be the cheapest) and a good lawyer.

This atty was really a good lawyer. He was trying to make me squirm. Like I said, he usually works in defense, protecting insurance companies and policy holders from this crap.

Jim Sabin said...

Dinah - This is a very interesting issue and an important area of law. I've takent he liberty of copying a posting on the same topic from my own blog (

Thanks for your posting and this excellent blog!

Saturday, December 15, 2007
Good Ethics/Bad Law in Massachusetts

Last week the Massachusetts Supreme Judicial Court published its decision on Coombes vs Florio, a case with important implications for medical liability law. The case is also deeply interesting from the perspective of medical ethics.

On March 22, 2002, David Sacca, a 75 year old patient of Dr. Roland Florio, suffering from cancer of the lung and several other ailments, lost consciousness while driving and hit and killed a 10 year old boy, Kevin Coombes. The Coombes family sued Dr. Florio, claiming that he failed to inform David Sacca about the side effects of the many medications he was taking, and failed to warn him against driving.

A lower court found that Dr. Florio owed no duty to Kevin Coombes, and therefore could not be sued for the alleged failures. The Massachusetts Supreme Court was asked to review the lower court’s decision to dismiss the case. The question was whether Kevin Coombes's estate had standing to sue Dr. Florio.

By a 4-2 decision, the court concluded that Dr. Florio owed a “duty of care” to Kevin Coombes. On reading the decision and viewing a video of the Supreme Court session, I believe the decision was bad law but good ethics.

Judge Ireland, joined fully by two colleagues, and in part by a third, concluded that Dr. Florio owed any and all of those who might be injured by David Sacca’s driving a “duty of care,” with the result that Coombes was entitled to bring the suit. I agree with the ethical perspective the finding is based on. We physicians should consider our patients as part of a social world, not as isolated atoms. When we discuss, for example, a medication we are prescribing, we should refer to the potential for harm to others as well as to the patient, just as with a patient infected with HIV we counsel against unprotected sexual contact, not just for harms that might come to the patient, but for the harm the patient could cause to others.

Justices Cordy and Marshall, in dissent, argue persuasively that the majority finding is not justified by the precedents the majority cites. Further, they point out significant harms that can come from the finding, including a massive increase in litigation, violation of patient-doctor confidentiality from suits brought by third parties, and more defensive medicine. In my view, they show that the finding is bad law. Here is some of Justice Cordy's reasoning:

"There is no debate that it is foreseeable that the victims of an impaired driver are not only the driver but other drivers, pedestrians, or cyclists. The impaired driver plainly has a duty to all potential (foreseeable) victims. But extending the duty of the driver's physician, grounded in the doctor-patient relationship, to all those whom the driver encounters is entirely different. Because A has a duty to B, and B has a duty to C, it does not necessarily follow that A has a duty to C. The duty of A to C must be established on its own terms."

Unfortunately, the dissenting justices base their conclusion, in part, on bad ethics. Justice Cordy argues that the doctor-patient relationship should be:

"…autonomous, free from the influence of concerns beyond the patient's well-being. This reflects long-held norms about the relationship between doctor and patient and the sound social policy that a doctor's interest be solely in the well-being of his patient."

This perspective, widely held in the U.S. but much less so elsewhere, is patently wrong. If we took it seriously, if our HIV positive patient says "I know about the risks unprotected sex poses for me, and I am not daunted by them," we would keep silent about the risks created for others. Of course we wouldn't do this -- we would weasel out of the inconsistency by saying "it would be harmful to you to expose others to risk."

But the atomistic view of the physician's moral responsibilities is a major contributor to our ongoing paralysis with regard to managing health care costs. If our sole responsibility is to the patient, with no regard whatsoever for the impact of our actions on wider society, the sole basis for not offering an intervention is that it would harm the patient. However useless it might be, if it is not harmful, and the patient wants it, the view that "the doctor's interest [should] be solely in the well-being of his patient" requires us to offer it. Societal opportunity costs be damned.

My speculation is that the four justices who reached a faulty legal conclusion may have been swayed by the correct ethical argument that physicians should think about all of those who their interventions affect, not "solely" about their patients. Unfortunately, in Coombes vs. Florio, good ethics may have encouraged a bad legal decision.

Gerbil said...

The real question is this: How did our society become so litigious that person A thinks to sue person B for person C's lack of common sense?

Dr. Pink Freud said...

Don't have time to read all the replies at present, but heck, I have a minute to chime in. How many docs was she seeing? Where were the concerned family/friends? How many pharmacies did she use? Lastly, why did she CHOOSE to drive? If I'm dizzy, damned if I'm getting behind the wheel.