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Robinson v. Health Midwest Development Group3/6/2001
Corp., 3 S.W.3d 404, 419 (Mo. App. 1999) (citations omitted). Logically, in our view, the doctrine is based, at least in part, on the recognition by our courts of a duty of the physician to a patient to warn the patient of the risks associated with a drug prescribed by the physician.
Another factual situation in which our appellate courts have impliedly recognized that a physician has a duty to a patient to warn the patient about the risks associated with taking a prescription drug can be found in the "informed consent" cases. Our courts recognize a cause of action by a patient against a physician for the lack of informed consent to medical treatment. Wilkerson v. Mid-America Cardiology, 908 S.W.2d 691, 696 (Mo. App. 1995). The three basic elements of such a cause of action are: "1) nondisclosure, 2) causation, and 3) injury . To prove nondisclosure, the plaintiff is required to produce expert testimony to show what disclosures a reasonable medical practitioner would have made under the same or similar circumstances." Id. In holding that " decision as to medical treatment must be informed," the Missouri Supreme Court in Cruzan, by Cruzan v. Harmon, 760 S.W.2d 408, 417 (Mo. banc 1988) stated:
There are three basic prerequisites for informed consent: the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis. (Emphasis added.)
Logically, medical treatment would include the prescribing of medication such that with respect thereto, a physician would have a duty to a patient to insure that the patient had a clear understanding of risks and benefits associated with taking the medication, and the risks and benefits of treatment alternatives or of nontreatment. As such, in our view, the informed consent cases recognize that a physician in this state owes a duty to a patient to inform or warn the patient about the risks and dangers associated with the taking of a prescribed drug, including not engaging in certain activities because of the related side effects.
Consistent with our view as to the duty of a physician to warn a patient about the risks associated with taking a prescribed medication is this court's decision in Horner, 1 S.W.3d at 522-23, holding that a pharmacist, who like a physician is a "health care provider" by definition, section 538.205(4), has a duty to warn a patron of the risks associated with the taking of a drug prescribed by a physician. In so holding, the court stated:
pharmacist's education and expertise will require that he or she do more to help protect their patrons from risks which pharmacists can reasonably foresee. . . . pharmacist, as is the case with every other professional, must exercise the care and prudence which a reasonably careful and prudent pharmacist would exercise. Id. at 522.
Logically, this same duty to warn should extend to other health care providers, such as a physician who, based on his or her medical education and expertise, knew of a danger associated with the taking of a drug prescribed for a patient.
Having determined that, under a given set of circumstances, a physician can be found to have a duty to a patient to warn the patient of the risks and dangers associated with the taking of a prescribed drug, including not engaging in certain activities after doing so, such as driving, because of the drug's known side effects, we now turn to the issue of whether a physician could be found to owe the same duty to th
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