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McKenzie v. Hawaii Permanente Medical Group6/10/2002
the considerations of policy which favor" recovery "against those which favor limiting" liability to determine if any logical, sound, or compelling reason exists to impose a new duty.
1. Negligent Prescribing Decisions
The McKenzies argue that the fair allocation of the costs of harm and the need for fair compensation to victims mandates that physicians owe a duty to non-patient third parties injured as a result of negligent prescribing decisions. Wilson suggests that physicians owe a duty to the public generally. Indeed, other courts have recognized that imposition of a tort duty upon physicians for the benefit of the general public is not new. See generally Gooden v. Tips, 651 S.W.2d 364, 370-71 (Tex. Ct. App. 1983) (discussing statutory requirement that physicians report the existence of certain sexually transmitted diseases to health authorities); Welke v. Kuzilla, 375 N.W.2d 403, 406 (Mich. Ct. App. 1986) (noting generally in discussion of duty that highway safety is an important public concern). All of the foregoing policy considerations are important. In addition, the McKenzies cite to a number of cases, discussed infra, where other courts appear to have permitted actions involving allegations of negligent prescribing decisions to proceed.
In support of its argument that a physician never owes a duty to non-patients, Kaiser cites to, inter alia, Lester v. Hall, 970 P.2d 590 (N.M. 1998). In Lester, the plaintiff, a non-patient of the defendant physician, was injured by the physician's patient in an auto accident. See id. at 591. The plaintiff alleged that the physician negligently monitored his patient's medication and failed to warn his patient that the medication, lithium, could impair the patient's driving ability. Id. The patient had last seen the physician five days before the accident. Id. Answering a certified question from the United States District Court for the District of New Mexico, the New Mexico Supreme Court held that the doctor owed no duty to the non-patient plaintiff. Id. In so holding, the court considered several important policies in balancing "the likelihood of injury , the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant[,]" id. at 592 (citations omitted), a duty analysis similar to our own. Most significantly, the court was concerned that the extension of a duty to non-patients "would have a potentially serious chilling effect on the use of prescription medication in medical care" and that it would intrude "upon the indispensable loyalty which physicians must maintain towards their patient regarding their medical care and treatment decisions" insofar as physicians would have to choose between prescribing beneficial medications to their patients and the risk that their prescribing decisions may result in liability to unknown third parties. See id. at 593; accord Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991).
Prescribing decisions must take into account complicated issues concerning the potential benefits and risks to individual patients. Moreover, although we do not believe that doctors would altogether stop prescribing beneficial medications to their patients because of the risk of liability to third parties, an expansion of such liability would certainly discourage some prescriptions -- particularly, as amicus curiae HMA points out, the prescription of psychiatric medications that necessarily have behavioral effects. The social utility of these medications is enormous, and we do not want to discourage their use. The risk of tort liability to individual patients should be enough to discourage negligent prescribing decisions. As discussed infra, the risk of injury to non-patient th
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