Massachusetts SJC: Neurologist Not Liable for Patient’s Harm to Third Party; Failure to Warn Patient About Driving Does Not Create Liability

A man who was injured by a driver who suffered a seizure due to his brain tumor could not sue the driver’s neurologist for allegedly failing to warn him not to drive, or for otherwise failing to control his driving.

On December 21, 2001, the plaintiff suffered serious personal injury when he was struck by a car operated by the defendant driver. The driver had been diagnosed with a brain tumor in September 2000 after he had suffered a grand mal seizure. The tumor was malignant and inoperable.

The driver waited six months before he began driving again, as required by Massachusetts law. His treating neurologist, Frederick Hochberg, M.D. of Massachusetts General Hospital, allegedly did not attempt to prevent his patient from driving again and did not warn him not to drive. 

After he was hurt, the plaintiff sued the driver’s estate (the driver had passed away). He also brought a medical negligence claim against Dr. Hochberg. The plaintiff claimed that Dr. Hochberg owed a general duty to the public who might be injured due to the nature of the underlying medical condition that he was treating. The plaintiff argued that the duty rose from the special relationship between a physician and a patient. The plaintiff argued that general negligence principles created a duty in Dr. Hochberg to warn his patient of the dangers of driving while suffering from the brain tumor. The Supreme Judicial Court rejected both arguments.

The court found that this doctor-patient relationship was not a “special relationship” which would give rise to a duty to prevent harm to a third person. Absent such a special relationship, the court said, “there is no duty to control another person’s conduct to prevent that person from causing harm to a third party.”

In 2007, the court had found, in Coombes v. Florio, 450 Mass 182 (2007), that a physician may have a duty to warn his or her patient about the side effects of medication being prescribed. The court ruled that this duty extended to third parties who might be injured if the warning had not been given. But the court refused to extend that ruling to include medical conditions under treatment.

The Coombes case was seen by the court as a very narrow exception to the general rule that a physician owes no duty to third parties who might be injured by a patient. The court stated that the duty sought by the plaintiff would “impose on physicians an affirmative duty … to nonpatients to warn patient of the risks of driving due to any underlying medical condition. We conclude this is an unwarranted and ill-advised expansion of liability for several reasons.”

The main concern of the court was that the physician did not do anything to increase the likelihood of harm by the patient, compared to the physician who might be liable for prescribing medication and thus creating additional risk. The court also believed that further imposition of duty would intrude on the doctor-patient relationship and might increase collateral costs. 

This case represents the second time the court has stated that it will not be expanding the duty recognized in the Coombes case.  At least that narrow exception survived.

The case is Medina v. Hochberg, SJC-11178 (May 13, 2013).

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A Marketplace of Haves and Have Nots–Massachusetts Healthcare System Plagued with Cost Inequalities

The state Attorney General is in the preliminary stage of a systematic review of the Massachusetts healthcare system and has already made some startling discoveries about healthcare costs. Martha Coakley’s office found significant cost variations among hospitals and physicians based on factors other than quality of care.  Although the investigation is still ongoing, Attorney General Coakley has expressed concern about affordable and accessible healthcare if the identified systematic failures are not addressed and has urged policymakers to implement cost containtment measures.

As part of the investigation, the Attorney General’s office reviewed documents from insurance companies and healthcare providers representing the bulk of the healthcare market in the state to examine healthcare costs and costs drivers. Specifically, the Attorney General examined insurance contract prices between insurance providers and hospitals between 2004 and 2008. The concern is that although Massachusetts has improved access to the healthcare market–97 percent of the population has healthcare coverage–this improvement could be compromised by cost increases.  Attorney General Coakley warned if left unchecked, price disparities in the market could create a  provider marketplace dominated by expensive “haves” as lower priced “have-nots” are forced to close down or consolidate with higher priced providers. 

The initial findings of the investigation showed that:

  • In the same geographic area and across similar levels of service, prices paid by insurance carriers to hospitals and physician groups varied, at the extreme in excess of 200%.
  • Price variations are not correlated with quality of care, complexity of the illness or population being served, extent of patients on Medicare or Medicaid, or whether the provider is an academic or research facility.
  • Price variations are correlated with the relative market position of the hospital or physician group as compared to hospitals within a geographic region or within a group of academic medical centers.
  • Price variations on a per-member, per-month basis are not correlated with the method of payment (e.g. globally or fee-for-service).
  • Price increases cause most of the healthcare cost increases in the state.
  • Contracting practices distort the commercial healthcare market and reinforce disparities in pricing.
  • The report noted that health care costs are increasing much faster than wages.

The investigation is expected to be completed by March 16th and the findings will be presented to the Massachusetts Office of Health and Human Services, Division of Healthcare Finance and Policy.   

For more information on Massachusetts’ unique approach to healthcare access, see the following website on the state mandate and statute.  If you need to obtain health insurance coverage, see the following guide to choosing a health plan.

If you have questions about medical negligence or medical malpractice, please feel free to contact our firm for a free consultation at 800-379-1244 

Radiologists May be Reluctant to Admit Medical Errors to Patients

In a recent article in the medical journal Radiology, a study of several hundred radiologists reveals that mammographers may be reluctant to reveal medical mistakes, even if the mistakes relate to potential risk of breast cancer.

In the study the radiologists were given a hypothetical question. They were asked to assume that films were read out of order; that the calcifications in the films were actually increasing and not decreasing, and that they discovered the mistake after initially reading and reporting the results to their patients. Calcifications may be associated with the growth of breast tumors.

Only 14% of the physicians said they would definitely disclose the error. Twenty-six percent said they would probably report the error. The rest would either disclosed the error only if asked by the patient, or not at all.

In the hypothetical conversations with the patients after the mistake was revealed, only 15% of the doctors polled would admit that they made a mistake during the reading of the films.

Failure to diagnose breast cancer due to mammography errors is a common cause of medical malpractice claims, and almost half of the doctors in the study had been party to a suit alleging negligence.

The authors concluded that even though there is a trend towards more physician openness regarding mistakes, disclosure is “the exception, not the rule.”


Radiology: Radiologists reluctant to disclose mammo errors to patients. October 30, 2009.


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Medical Malpractice Risks Increased By Resident Fatigue

Everyone knows about the hazards associated with falling asleep at the wheel of a car. Workers are told not to operate heavy equipment if tired or impaired. We all have first hand experience with the effects of sleep deprivation on clarity of thought and reaction time. Would you knowingly put your life in the hands of someone who is at the end of a 30-hour shift? Would you feel confident in the judgments of a young doctor in training who has just put in an 80 hour work week? Well, if you have received treatment at a major teaching hospital in Massachusetts or anywhere in the country, you probably have already done this.

You have probably already seen this reality depicted on popular television shows like Grey’s Anatomy or ER showing the impossibly long shifts and adrenaline-pumping situations medical residents must face each week. Of course the show’s writers throw in a lot of extra drama, but real medical residents do typically work 80-hour weeks that include 30-hour shifts–sometimes with little or no sleep.

Medical residency programs are designed to be rigorous, to prepare doctors for difficult situations and to expose them to as many medical procedures as possible over their 3-7 years in residency. There are teaching hospitals throughout Massachusetts, including Boston, Worcester, Springfield, Cambridge, Waltham, and Framingham.

Now a new report by the Institute of Medicine of the National Academies says that residents are not just tired, they are fatigued. And this fatigue is leading to preventable mistakes–medical mistakes that sometimes lead to wrongful death.

In 2003, the Accreditation Council for Graduate Medical Education limited the number of hours a resident could work to 80 hours per week. The new report is not looking to decrease this number, simply to regulate how the hours are carried out.

IMNA’s report offers several concrete recommendations that will improve patient care and prevent many fatigue-related medical mistakes.

  • Residents working a 30-hour shift should have at least a five-hour break after 16 hours of work.
  • When residents “moonlight,” or take on additional paid health care work, these hours should count toward their 80-hour cap.
  • Experienced physicians should more closely supervise residents.
  • The number of mandatory days off each month should be increased.
  • When scheduling residents, an overlap period should be included between shifts to increase communication.

However, implementing these suggestions means that teaching hospitals would need an additional $1.7 billion in funding each year. This fact alone may keep the recommendations from becoming a reality, even though the cost would most likely be offset by the decrease in fatigue-related errors and medical malpractice claims. Costs aside, the people suffering are the patients who are receiving sub-standard treatment.

We’ll just have to wait and see what happens to the IMNA’s recommendations. For the time being, residents are still working while fatigued, which means that fatigue-related errors and injuries are occurring all the time.

If you have suffered an injury due to a resident’s fatigue or any medical malpractice, contact the medical malpractice lawyers at Breakstone, White, and Gluck, P.C. We have years of experience in medical malpractice claims and our attorneys would be happy to discuss your case with you. Our toll free number is 800-379-1244, and there is no charge for our consultation.

More Resources

Resident Duty Hours: Enhancing Sleep, Supervision and Safety, Institute of Medicine, November 2008.

The Myth of the Medical Malpractice “Crisis”

For years the medical malpractice insurance companies have been complaining about the medical malpractice “crisis”
in Massachusetts. High insurance rates, they complain, are driving physicians out of the state, making specialists hard to find.

But now there is good news: The insurance crisis does not exist! In fact, when adjusted for inflation, medical malpractice insurance rates are, on average, dropping in Massachusetts, according to a recent report from Suffolk University. The study examined rates for a thirty year period, and compared rates from 1990 to rates in 2005.

And while insurance rates did go up for the smallest handful of specialties– obstetricians, neurologists, and orthopedists doing spinal surgery, comprising 4% of all doctors–other
physicians enjoyed the effect of lower rates. Medical malpractice rates within those specialties did not always go up, because the highest rates were reserved for the riskiest practices.

In the words of the lead author of the study, Marc Rodwin, “If you don’t find a crisis here, you’re probably not going to find one nationally.”

Medical malpractice insurance premiums are a very small part of the overall cost of health care. Year-to-year fluctuations in malpractice premiums relate largely to economic factors, such as
the stock market, as opposed to claims paid by the insurance companies. All doctors in Massachusetts are required to have medical malpractice insurance.

More information
Most Mass. doctors face lower cost for malpractice coverage, Boston Globe
Study Shows No Malpractice Premium Crisis For Massachusetts (second article)

Just Say “NO THANKS” to “I’m Sorry” Legislation

When your doctor makes a mistake, it is only fair to expect to get a truthful explanation about what happened. After all, there is the Patient Bill of Rights under state
and federal law. There are professional ethics. And then there is plain old human decency. All of them tell us that our physicians and other medical
practitioners should quickly tell you about any mistakes they made, especially if your medical treatment is affected.

Well, we’re sorry to tell you that the truth can be an elusive stranger. In our practice we have seen altered and destroyed medical records and more than a handful of lying witnesses. When one of our clients was left on the table during his twelve hour back operation so his surgeon could go cash a check, nobody even told him what
the doctor did or that his doctor had his hospital privileges immediately revoked.

Now Massachusetts doctors and hospitals are proposing legislation that will shield admissions of liability for admission at trial as long as they use the magic words “I’m sorry” when they explain what went wrong. So, for example, if the doctor says to his patient, “I’m sorry I cut off the wrong leg,” you could not quote him in court.

There are two pending bills under review at the Legislature which would shield medical admissions from being used at trial.  We oppose this legislation. We encourage doctors and hospitals to recognize their moral obligations to be open and honest with their patients. If there is negligence, that is what insurance is for.

Protect your rights, and oppose this legislation and other bills that would restrict your rights as a victim of medical malpractice.

It’s Your Medical Record–Get It!

If you believe you have suffered personal injury due to medical error, it is essential that you promptly obtain your medical records. Under Massachusetts law, you have the right to get a copy of your hospital and physician records.  The procedures is not complex, though sometimes there can be delays.

For details on how and why you should get you records after you may have suffered an injury due to medical malpractice, please read our detailed article on our medical malpractice web page.

What Should You Do If You Have A Medical Malpractice Case?

The lawyers at Breakstone, White & Gluck, PC have many years of experience representing
medical malpractice victims. If you think medical malpractice has caused you an injury, or caused wrongful death to a family member, you should promptly contact a qualified malpractice lawyer. Learn more about choosing a Massachusetts medical malpractice attorney