Posted by: bridget | 18 December 2007

Massachusetts Medicinal Madness

The Massachusetts Supreme Court has ruled that physicians may be held liable for the torts of their patients, when said torts are related to medication prescribed by the physician (here). While the case was on appeal from summary judgment (and, therefore, the doctor has not found to be negligent and therefore liable), this ruling is deeply problematic.

On a philosophical level, these determinations are best left to the legislature. Separation of powers, lack of judicial activism, fact-finding is best done by groups that are not dependent upon that which is presented to them… mwah mwah mwah.

As a practical matter, the effect on physicians and patient care may be well beyond what the Massachusetts court envisioned. Not only may there be increased malpractice costs (or the expansion of insurance into general negligence), physicians will have an incentive to not prescribe medications to their patients. This system also causes unpredictability: the physician is not just liable to patients, but to people she has never met, interacted with, assessed, or even known about. Furthermore, side effects from medication are unpredictable: some patients are fine, while others may have violent reactions. There is no possible way for doctors to know which patients will have problems and which ones are likely to be in a position to injure others if such a problem occurs. The increase in costs may well be passed along to patients, either via increased prices for services or the more indirect cost of reduced access to physicians; the disproportionate effect upon those who struggle to pay for health care anyway should be obvious.

After this ruling, Boston doctors may only prescribe non-necessary meds to wealthy patients, on the theory that if the patient has deep pockets, the injured party will have no reason to try to prove the physician’s negligence. They will have a greater incentive to refuse medications to those who work with heavy machinery or in construction, travel by car frequently, or do not have a spouse or family member who can take over driving duties. (Let’s make the blue-collar workers and single moms suffer! There’s compassion for you.) They may require their patients to sign daunting informed consent contracts prior to issuing the prescription. Many elderly people still drive (which would really be the basis for liability in these cases), despite taking a smogasboard of medications every day; doctors may ask the DMV to revoke a patient’s license before writing out a prescription.

Strangely, it is the duty of pharmacists to warn patients about drug interactions and side effects, but the plaintiff did not sue the pharmacist who dispensed eight different medications. From a purely pragmatic standpoint, it makes more sense to have the pharmacist warn of potential side effects and interactions, as such is their specialty, they know all of the drugs the patient is taking (and what brands), and may put those little stickers on the bottle. (Target’s new prescription bottles are extraordinarily easy to understand.)

If a person has a dizzy spell at the wheel and hurts someone, then this thing called car insurance will pay for the damage. Massachusetts already requires all of its drivers to have it, and the state caps the premiums of high-risk drivers to make insurance affordable. Construction or heavy machinery work would operate much the same way. If the amount of insurance is insufficient to cover potential losses, then the state can require people to carry more insurance, or individuals who are worried about injury from tortfeasors can get life and disability insurance. The insane solution is to make distantly-involved but deep-pocketed parties liable, when such liability will have adverse effects upon the quality of health care given to all citizens within the Commonwealth, with a disparate impact upon the elderly, the working class, and those without good familial support networks.

Update: More depressing news, this time from California. (Neil, you’re forgiven for that snark about confining the nuttiness of MA and CA within their borders. :) )

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Responses

  1. There are at least two other possible cases in the pipeline on this issue. One is a guy,a lawyer,who is upset he wasn’t “fully informed ” about the effects of Ambien. The guy took 4 of them 4 pills that he takes so he can fall asleep. He wants to sue the doctor that having taken four he got so drowsy he had an accident. As for the guy in this SJC case. A 75 y/o train wreck that should find himself in court again. This time to serve as testimony of why the state should revoke either temporarily or permanently the licenses of elderly and medically incapacitated persons. If the state did that the kid would be still alive. That would also be the case of the elderly orchestra member who hit and killed a pedestrian in a crosswalk. She never stopped and when Newton PD questioned her the response was: “I’m not having a good night,I hit something.” Are we still making it in Massachusetts ?

  2. Sigh.

    I think the guy who hit the 10-year-old died.

    The lawyer should know better. Seriously. I know that most law students aren’t scientifically inclined, else they wouldn’t be in law school, but taking a bunch of pills so that you fall asleep, then getting tired when you fall asleep, would be what we like to call “proximate cause” of the resulting accident.

    As I said, yes, this will make the state more likely to revoke driver’s licenses, at the behest of physicians. Does anyone really want to choose between driving (because some people whose problem is their own lack of concern for others, not their medication) are suing their doctors, who now have to spend half their time in CYA-mode?

    Sigh. I fled the jurisdiction. Is it bad karma to point and laugh at you? :)

  3. I don’t know what other doctors will do, but I’ll just quit.

    I’m not willing to put my estate at risk when I don’t have idea who might be after me.

    Doctors work under price controls. We cannot pass along the increased costs. We’ll just go out of business.

    I can’t believe this, and yet I can. It’s really sad.

  4. Vance,

    Thanks for saying something. I was hoping that you would comment. :)

    My advice: head to Florida. They have a homestead law and no requirement that physicians carry insurance. My sis used to live in Dade County, which is the tort capital of the world (well, not quite, but close). One of her doctors made her sign a form acknowledging that she knew he didn’t carry malpractice insurance, which runs around $300,000 – $500,000/year in that specialty.

    Going after doctors, IMHO, is just freakin stupid. I mean, let’s go after the people who do the most good in the world and then just hope they will continue to practice after we’re done bleeding them dry.

  5. PS You are more than welcome to add/comment to my post, or link to your own.

  6. This is unrelated, but I thought you might find this article interesting…

    http://www.lewrockwell.com/sabrin/sabrin10.html

  7. Sorry for another off topic comment but I am curious what you as an atheist and libertarian think about the following…

    http://news.yahoo.com/s/ap/20071219/ap_on_re_us/military_religion_lawsuit

  8. Note to TotalTransformation: It’s mean to assign law students homework during finals. Or immediately after finals. :p

    My brain is fried.

  9. Florida sounds nice. Actually, Texas isn’t so bad, either. We have a cap on malpractice here, so the problem isn’t nearly as bad as it used to be. Still, the whole notion that doctors can be held liable for acts committed by patients who take a pill that we prescribed to HELP them is ludicrous. It makes me feel like a gun manufacturer…

  10. Trust me, you’ll enjoy both links when you get around to them.

    For now you can learn through example how feminists lack a sense of humor by heading over to the comments section on….

    http://kateharding.net/2007/12/19/open-for-discussion-1700-a-month-on-hygiene/#comments

    Can you believe I got banned for that sarcastic comment? It’s toward the bottom. Viva la tyrannical humorless feminists!

  11. It makes me feel like a gun manufacturer…

    And both are tremendously important to our safety and well-being.

  12. Babe, you can do better. I don’t think it’s worth banning you for, mostly because I don’t think it’s worth acknowledging.

    (Did I mention being totally cranky from not having slept nor eaten since Thanksgiving? :) )

  13. “Babe, you can do better”

    Listen here, If Austin Power’s is allowed a thousand jokes about bad British teeth, surely I am allowed one. HA!


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