Why it’s important to place limits on liability by association

In June of 2006 Mary Ann Ambrogio went to see her gastroenterologist Dr. Frank Troncale in Connecticut for a follow up of her history of liver cirrhosis and associated hepatic encephalopathy.

Reportedly following this visit Mrs. Ambrogio was driving home when she passed out and hit a pedestrian John Jarmie causing “severe and permanent” injuries. The injured pedestrian sued Dr. Troncale claiming malpractice under Connecticut law in that the doctor did not warn the patient not to drive given her medical conditions.  After the trial court dismissed the case the plaintiff appealed and last month the Connecticut Supreme Court choose not to allow further degradation of the doctor-patient relationship and sided with the lower court decision.

Some of the key findings were;

  • “There is no well established common-law rule that a physician owes a duty to warn or advise a patient for the benefit of another person.”
  • The accident was not foreseeable since Dr. Troncale had no reason to suspect that his patient’s ability to drive was impaired or could be impaired (the patient had not passed out before) or that the victim was known or could have been known beforehand.
  • It is unfair to hold a physician liable for not warning their patient against driving because it is not possible to predict whether or not the patient would have followed this advice. “The plaintiff assumes that a patient who has been warned will discontinue driving without recognizing that not all patients will necessarily follow their physician’s advice.”
  • People injured by negligent drivers have access to compensation from the driver or the driver’s liability insurance. The costs of any potential gaps in compensation would be far exceeded by the expense in increased malpractice premiums and additional litigation that would result from expanding liability to the physicians of negligent drivers.
  • The physician’s duty to the patient is “explicitly relational” . . and as such the physician should have “undivided loyalty” to the patient.  Extending their liability to include third parties would divide a physician’s duty between the patient and a third party which could result in conflicting duties and cause a degradation of their loyalty to their patient.
  • Confidentiality in the doctor-patient relationship is critical to maintaining good communication between both. Extending liability to third parties would require making public the medical records of a patient in order to serve the litigation needs of a third party. This would degrade the sense of confidentiality in this relationship and impair communication.
  • The public’s safety is not the same as the patient’s safety and this can lead to conflicting duties. Most medical conditions present and progress gradually while many sudden conditions are unpredictable. As such, a physician’s decision on whether or not to restrict the patient from driving must be individualized since unnecessary or aggressive limits on a patient’s lifestyle can have negative repercussions on their quality of life such as their independence via their ability to drive.  However, public safety considerations cannot be individualized and would require much more aggressive and earlier restrictions on a patient’s lifestyle due to the possibility, however small, of an adverse event. This would not be practical from a doctor-patient perspective since it could potentially include almost any medical condition. The resulting frequent and common warnings to patients would impair the doctor-patient relationship by desensitizing a patient to the warnings of their doctor and impair their ability to discern the difference between advice and warnings that are warranted and warnings given mostly for liability reasons.
  • The alleged failure to warn in this case applies only to the underlying medical condition and not to the potential effects of prescribed medications or other treatments. A physician’s duty to warn the patient of the effects of medications and treatment is well established law under informed consent and does not automatically apply to the often vague nature of and possibly unpredictable course of a specific medical condition. Exceptions include epilepsy or narcolepsy where sudden and unpredictable impairment is a hallmark of the disease or an infection which could be  unknowingly transmitted to a third party. But again, each case must be individualized and the presence of one of these conditions does not mean that liability is extended to a third party.
  • Allowing for the possibility of intrusion by investigators, litigators, courts, and jurors into what is supposed to be a closed and confidential relationship without the consent of either the doctor or the patient would be a massive breach of the legal protections of this arrangement.

I agree with the court’s assertion that most medical conditions by themselves do not automatically imply an impairment or the significant potential for an impairment. Hepatic encephalopathy associated with liver cirrhosis almost always presents as a gradual clouding of thought processes. It is very unlikely that the patient’s known conditions would have resulted in a sudden loss of consciousness without any preceding symptoms though I was unable to find any information on what was believed to have caused this patient to black out.

It’s not clear why Mr. Jarmie sued Dr. Troncale. Maybe the patient didn’t have auto insurance. But it’s more likely this was a case of trying to grab more in compensation by attempting to extend the concept of liability. Let’s face it. Americans sue other Americans for anything and everything and expect the maximum in compensation for every perceived injustice. The only reason not to sue is the inability to collect. This is the only reason Americans don’t sue God . . . . or Santa Claus.

Admittedly this sort of case is uncommon. But the ruling is still important in placing limits on liability by association. One action can have a series of consequence like “ripples in a pond” as the majority opinion put it. A driver passes out and hits a pedestrian transporting a critical drug to a nearby hospital resulting in the death of a seriously ill patient who was a key employee resulting in the failure of a company and the loss of hundreds of jobs and pensions and on and on ad nauseum. Where does the madness end? After all, only six degrees (or 4.74) separate everyone from everybody else.

Chris Rangel is an internal medicine physician who blogs at RangelMD.com.

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  • Vox Populi

    Holy straw-man argument – the court DID say the third party could not recover here. The case got thrown out of court. The “story” is a non-story.

    On the bigger issue, there’s universal or near-universal agreement within the legal community that there are some situations where a doctor may be liable to a third party. It’s dictated by when a doc should reasonably foresee the harm they’re putting third parties in. The term “reasonable” is situation-dependent and our court system is designed specifically to ask judges to weed out reasonable from unreasonable. The mechanism is quite simple. Only if a judge thinks it was reasonable to expect harm to a third party does a jury then get to decide the issue, but never without the judge serving as a gate-keeper. So, what happened here is someone said “hey, I think it was reasonable for the doc to anticipate my injury.” A judge disagreed. The case is dead and will never get to a jury. Game over.

    If the point of the article is to say that courts should be vigilant when extending the duty to third parties, then “check,” they’re already doing that (see your example). If the point is to imply that any time there’s a lawsuit against a doctor that the sky is falling, then “check,” you’ve got that too.

    • http://twitter.com/dalecoymd Dale Coy

      “Since plaintiffs’ lawyers pay all the money for experts, depositions, court costs, etc., and only get compensated if they win, then you can be pretty certain that a similar case won’t be brought on the same fact pattern or a similar one.”

      I guess your profession’s argument to deny tort reform to protect patient rights pales to a potential loss of income.

      • Vox Populi

        No, Dale, that’s not the point, although I suspect you know that and are just out for a little trolling. The point is that to the extent the post makes people panicky that this case will get re-litigated over and over, it won’t. Why? Because attorneys will not bring lawsuits they’ll lose.

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