Editorial: Courts must do no harm

The Patriot Ledger

The split decision by the state's highest court allowing a suit to go forward against a doctor whose elderly patient killed a young boy in an accident is another stark example of why health care costs continue to spiral out of control and the availability continues to retreat in Massachusetts.

Few people cannot empathize with the family of 10-year-old Kevin Coombes of Stoughton, who was killed in 2002 when David Sacca, taking a variety of medications that affected his mental capacity, passed out at the wheel of the car and struck the boy as he was chatting with a friend.

Only the most heartless would say the family should just move on without any recourse for action. But when Sacca, who was 75 at the time of the accident, died four months later, the only defendant left in the family's suit was Dr. Roland J. Florio, who was Sacca's primary care physician.

Kevin Coombes family claimed Florio was responsible because he did not adequately warn Sacca about the side effects of the eight medications he was taking, including Oxycodone.

While a family's pain in trying to affix blame is understandable, judicial reason would hold that Florio, who had told Sacca not to drive while undergoing chemotherapy, could not be held responsible for Sacca's actions.

A Norfolk Superior Court judge dismissed the suit but the Supreme Judicial Court voted 4 to 2 this week to allow the suit to move forward.

Justice Roderick Ireland, who wrote the majority opinion, said Florio had the duty to foresee the consequences to a third party.

But SJC Chief Justice Margaret Marshall, one of the two dissenters, summed up the damaging decision perfectly in her minority opinion.

"One need not be clairvoyant to understand the inevitable result of today's enlargement of liability: a significant increase in third-party litigation against doctors and an attendant increase in expenses at a time when our health care system is already overwhelmed with collateral costs," she wrote.

Indeed, health care costs skyrocket on the backs of malpractice premiums. Several experts said Ireland's decision would be unlikely to trigger a flood of suits but insurance companies do not set their rates based on punditry.

If a threat exists, they will set the premiums accordingly to meet that potential and consumers will end up paying the costs.

Last year, the Massachusetts Medical Society found that obstetricians pay $100,000 a year for malpractice insurance, while neurosurgeons pay $96,000. Those costs may help explain why there are only about 65 neurosurgeons in Massachusetts, according to the association.

There has been both anecdotal and researched evidence that younger doctors, both specialists as well as primary care physicians, are avoiding the state because of high malpractice premiums. Wait times for getting an appointment averaged 26 days for new patients and 15 days for existing patients, according to another recent survey by the medical society.

The family of Kevin Coombes is not responsible for the health care crisis. But the courts should also understand both their impact and limitations when weighing in on the issue.

As Marshall rightly said, "The physician would be forever looking over his shoulder," with this decision. We'd prefer their focus be elsewhere.