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.