McKenzie v. Hawaii Permanente Medical Group6/10/2002
ute an analysis of whether a duty exists.
B. Determining Whether to Impose a Duty
Regarding the imposition of a duty of care, this court has noted generally that:
In considering whether to impose a duty of reasonable care on a defendant, we recognize that duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. Waugh v. University of Hawaii, 63 Haw. 117, 135, 621 P.2d 957, 970 (1980); Kelley v. Kokua Sales & Supply, Ltd., 56 Haw. 204, 207, 532 P.2d 673, 675 (1975). Legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. Id. (quoting Tarasoff [v. Regents of the Univ. of California],], . . . 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d [334,] 342 [(Cal.1976)]). In determining whether or not a duty is owed, we must weigh the considerations of policy which favor the appellants' recovery against those which favor limiting the appellees' liability. Waugh, 63 Haw. at 135, 621 P.2d at 970; Kelley, 56 Haw. at 207, 532 P.2d at 675. The question of whether one owes a duty to another must be decided on a case-by-case basis. Waugh, 63 Haw. at 135, 621 P.2d at 970. However, we are reluctant to impose a new duty upon members of our society without any logical, sound, and compelling reasons taking into consideration the social and human relationships of our society. Birmingham v. Fodor's Travel Publications, Inc., 73 Haw. 359, 370-71, 833 P.2d 70, 76 (1992) (holding that "a publisher of a work of general circulation, that neither authors nor expressly guarantees the contents of its publication, has no duty to warn the reading public of the accuracy of the contents of its publication"); Johnston v. KFC Nat'l Management Co., 71 Haw. 229, 232-33, 788 P.2d 159, 161 (1990) (declining to impose a duty upon non-commercial suppliers of alcohol, i.e., social hosts, to protect third parties from risk of injuries that might be caused by adults who consume the social hosts' alcohol). Blair, 95 Hawaii at 259-60, 21 P.3d at 464-65 (citing Lee, 83 Hawaii at 166, 925 P.2d at 336).
We now turn to these policy considerations and the cases from other jurisdictions that the parties call to our attention.
We begin by noting that, although the certified question inquires whether a duty is owed to a third party injured in an accident caused by an adverse effect of negligently prescribed medication, the facts supplied by the district court suggest that the McKenzies' negligence claim appears to rest on three general theories. First, the McKenzies claim that the decision to prescribe prazosin in the first instance constituted negligence. Second, the McKenzies claim that the manner in which Dr. Washecka prescribed the prazosin was negligent, namely, that the dosages were too high. Third, the McKenzies claim that Dr. Washecka was negligent because he did not provide Wilson with adequate warning of the danger associated with driving an automobile while taking the medication. The first two theories involve decisions such as whether to prescribe a medication at all, which particular medication to prescribe, and the particular dosage level or schedule to prescribe [hereinafter, prescribing decisions]; the latter theory involves failure to warn. Although the cases relied upon by the parties do not always expressly delineate this distinction, the distinction is often a key factor in their outcome. Accordingly, we consider the question of duty with respect to negligent prescribing decisions and negligent failure to warn separately. For each issue, we shall "weigh
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