High court: Doctors can be sued for failing to warn patients of drugs’ side effects

Julie Jette

A split ruling by the state supreme court in a lawsuit over a car accident that killed a Stoughton boy could affect how doctors statewide warn their patients about the side effects of drugs they prescribe.

A Brockton doctor who treated the driver who struck 10-year-old Kevin Coombes had a duty to protect the public by warning his patient of possible side effects of his medications, the Supreme Judicial Court said. That warning should extend not only to the danger the drugs present to the patient himself, but any risk the patient’s use of the drugs might present to the public at large, a majority of justices said.

‘‘I think it’s a message from the court to put physicians on notice of potential liability to the world at large,’’ said William Rider, regulatory and legislative counsel for the Massachusetts Medical Society. ‘‘The issue in the underlying decision will be of concern to primary-care physicians everywhere.’’

But Paul Leavis, the president of the Massachusetts Academy of Trial Attorneys, said he did not believe the case would result in a flood of lawsuits.

‘‘You’re probably talking a very small, marginal increase in the number of plaintiffs,’’ he said.

In a 4-2 decision, justices voted to overturn a ruling by Norfolk Superior Court Judge Elizabeth B. Donovan in which she dismissed a suit brought by the estate of Kevin Coombes against Dr. Roland J. Florio.

Florio, who works with Primary Care Affiliates, a doctors’ practice associated with Brockton Hospital, was the primary care doctor for 75-year-old David Sacca, who suffered from a myriad of illnesses.

According to the decision, Sacca, of Stoughton, was taking eight medications Florio had prescribed when he struck Kevin Coombes on March 22, 2002.

The side effects of those medications include dizziness, drowsiness, altered consciousness and sedation.

According to the decision, Florio did not warn Sacca of potential side effects, and Sacca had reported no effects before the accident.

Earlier, when Sacca was being treated for cancer, Florio had told him it would be unsafe to drive, and Sacca refrained from driving until his cancer treatment ended in the fall of 2001.

In the accident that killed Kevin Coombes, Sacca lost control of his car and drove on the sidewalk at the corner of Brickel Road and Sumner Street in Stoughton. Kevin, who had been standing on the corner with a friend, was thrown more than 35 feet in the air. He later died of his injuries.

Sacca, who had a clean driving record before being charged with vehicular homicide in the accident, died four months after it happened. Initially he was sued along with Florio.

Writing for the majority, Associate Justice Roderick L. Ireland said the court has already ruled that doctors must give patients reasonable warnings about medications’ side effects, and that it is logical to take that ruling a step further.

‘‘I conclude that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient,’’ Ireland wrote. ‘‘Dr. Florio owed a duty to all those foreseeably put at risk by his failure to warn, including Coombes.’’

In writing for the dissenters, Chief Justice Margaret Marshall sharply criticized the majority’s interpretation of case law.

She said Ireland’s interpretation of an earlier decision regarding doctors’ informing patients about side effects was too broad.

‘‘He significantly shrinks the essential and protected space within which doctor and patient can freely move together,’’ Marshall wrote. ‘‘Gone would be the physician’s ability to exercise independent professional judgment about how to present treatment options to the patient.

‘‘The physician would be forever looking over his shoulder,’’ Marshall added.

Associate Justice Robert J. Cordy, who joined Marshall in the minority, wrote an opinion stating that the decision ‘‘might fundamentally alter the relationship between doctor and patient, and increase significantly the costs of health care.’’

Associate Justice John M. Greaney, one of the four justices who agreed that the case should be sent back to Superior Court, wrote an opinion differing with some of the reasoning articulated by Ireland.

Attempts to get comment on the supreme court ruling from Florio, his lawyer and Brockton Hospital were unsuccessful.

For the family of Kevin Coombes, the matter is far more personal, said their attorney, Peter L. Eeley of Quincy.

‘‘Kevin Coombes’ family will be able to have their day in court over the failure of the doctor to warn his patient of the side effects of the medicines that he prescribed,’’ Eeley said. ‘‘They miss (Kevin) greatly and I think that they were relieved at the decision to restore the case.’’

Kevin’s memory is honored with a memorial in a trophy case at the Zapustas ice rink in Randolph, where the boy played hockey with the Mohawks youth hockey team. His parents have moved out of state, Eeley said.

The Patriot Ledger