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McKenzie v. Hawaii Permanente Medical Group6/10/2002
ip" between the physician and patient, is the major criterion determining whether a duty is owed them by Dr. Washecka; (2) even if a "special relationship" is necessary to create a duty entitling them to protection, a physician-patient relationship is such a relationship; and (3) policy considerations, including deterrence of negligent conduct, the fair allocation of the costs of harm, and fair compensation for victims, mandate that Kaiser owes a duty to them. The McKenzies further contend that Kaiser's policy concerns are exaggerated and that imposition of a duty in this case would impose no more of a duty upon physicians than they presently owe to their own patients. Wilson agrees with the McKenzies and also generally asserts that it is sound public policy to hold physicians accountable to the general public for negligent prescribing practices when it is foreseeable that a member of the public will be harmed by such practices.
In addition to the parties to this case, amicus curiae briefs submitted by the Hawaii Pharmacists Association, the Hawaii Dental Association, and the Hawaii Medical Association (HMA) generally support the policy considerations cited by Kaiser. The HMA emphasizes in particular the potential effect that imposition of a duty in this case could have on the prescription practices of psychiatrists and the welfare of psychiatric patients.
A. Applicability of the "Special Relationship" Analysis and Restatement (Second) § 302
1. "Special Relationship"
The parties dispute whether Dr. Washecka has a "special relationship" with Wilson that entitles the McKenzies to protection. The Restatement (Second) § 315 (1965) states:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Section 315 is a special application of the general rule stated in Restatement (Second) § 314 (1965) that a person does not have a duty to act affirmatively to protect another person from harm. See Restatement (Second) § 315 (1965) comment a ("[Section 315] is a special application of the general rule stated in § 314."); see also Lee, 83 Hawaii at 159, 925 P.2d at 329 (citing Restatement (Second) § 314). Section 314 applies "only where the peril in which the actor knows the other is placed is not due to any active force which is under the actor's control. If a force is within the actor's control, his failure to control it is treated as though he were actively directing it and not as a breach of duty to take affirmative steps[.]" Restatement (Second) § 314 (1965) comment d; see also Touchette v. Ganal, 82 Hawaii 293, 302, 922 P.2d 347, 356 (1996) (Noting that the considerations pertaining to "special relationships" are "based on the concept that a person should not be liable for 'nonfeasance' in failing to act as a 'good Samaritan.' [Such considerations have] no application where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person. In such cases the question of duty is governed by the standards of ordinary care.") (Citing Pamela L. v. Farmer, 169 Cal. Rptr. 282, 284 (1980).) (internal emphases and citations omitted). Accordingly, the "special relationship" arguments put forth by the parties are inapplicable to this case because medical malpractice involving the negligent prescription of medication is
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