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Coombesv.Florio:TheNegative
ConsequencesofLeavingMassachusetts
PhysiciansOpentoEndlessThirdParty
Liability

KATHRYNJ.SCHWARTZ

ABSTRACT

In the Supreme Judicial Court (SJC) decision, Coombes v. Florio, the

SJC extended physician liability to third parties in such an overly broad
manner as to leave many physicians fearful that prescribing drugs may
leadtolitigation.JusticeIrelandsopinionwasinnowaynarrowlytailored
tofitthespecificfactsofthecase.Rather,theholdingofCoombesv.Florio
will leave Massachusetts physicians confused as to how far their liability
actually extends. This Comment discusses the limited liability rules that
havebeensetoutinbothFloridaandNewMexicoandcomparesbothof
these jurisdictions rules to the vague new rule set out in Massachusetts.
There are several negative consequences that are likely to arise in
Massachusetts as a result of the Coombes decision. Specifically, this
Comment examines the issues that will arise regarding patient
confidentiality and the possible everexpanding liability that physicians
mayface.

Candidate for Juris Doctor, New England School of Law (2011). B.A., Psychology and
Criminal Justice, Indiana University (2008). I would like to thank my parents for always
believinginmenomatterwhatandforpushingmetoreachmypotential.

777
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778 NewEnglandLawReview v.45|777

INTRODUCTION

J
urisdictionsaresplitontheissueofwhetherornotaphysiciansdutyto
warnapatientregardingadversesideeffectsofprescriptionmedication,
namely that patients ability to drive, may be extended to third parties
who could potentially be harmed as a result of those side effects.1 In
Coombes v. Florio, the Supreme Judicial Court of Massachusetts (SJC)
potentiallyextendedphysicianliabilitytoathirdpartyautomobilevictim
whowasinjuredbyapatientwhomthedoctornegligentlyfailedtowarn
torefrainfromdrivingwhiletakingcertainprescriptiondrugs.2Narrowly,
the SJC found that summary judgment for the physician was not
appropriate and remanded the case;3 however, the SJCs position on the
issue is vague and unclear as a result of four separate opinions.4 Some
physicians are worried this decision will have a negative impact on the
practice of medicine.5 This decision could lead to physicians refusing to

1SeeThomasJ. Leonardo,Comment, TortLawExtendingPhysiciansDutyofCaretoThird

PartiesforBreachofDutyOwedtoPatientCoombesv.Florio,877N.E.2d567(Mass.2007),42
SUFFOLK U. L. REV. 277, 280 (2008). Compare Werner v. Varner, Stafford & Seaman, P.A., 659
So.2d1308,131011(Fla.Dist.Ct.App.1995)(concludingthatthethirdpartyliabilityrulein
Florida did not extend to unidentifiable third parties), and McKenzie v. Haw. Permanente
Med.Grp.,Inc.,47P.3d1209,122122(Haw.2002)(holdingthataphysicianisliabletoathird
partyplaintifffornegligentlyfailingtowarnthepatientofthepotentialforimpaireddriving,
unless a reasonable patient would have already known the risks), and Hardee v. BioMed.
Applications of S.C., Inc., 636 S.E.2d 629, 63132 (S.C. 2006) (concluding that a medical
providerwhotreatsapatientandhasknowledgethatsuchtreatmentmaydiminishpatients
abilitieshasadutytopreventharmtopatientsandtoreasonablyforeseeablethirdpartiesby
warningthepatientofpossiblesideeffectsofthetreatment),withWeigoldv.Patel,840A.2d
19,28(Conn.App.Ct.2004)(concludingthatthefailureofthephysiciantowarnthepatientof
potentialsideeffectsofmedicationwastooattenuatedfromtheconsequenceofthepatient
falling asleep at the wheel and killing decedent to constitute proximate cause and extend
liability),andLesterexrel.Mavrogenisv.Hall,1998NMSC047,25,126N.M.404,970P.2d
590,598(holdingthatthelikelihoodoftheinjurythatresultedwastoofarremovedfromthe
failuretowarnthepatienttojustifyanexpansionofliability).
2See 877 N.E.2d 567, 57475 (Mass. 2007) (Ireland, J., concurring). The physician failed to

warn his patient that the prescription drugs he prescribed could cause dizziness,
lightheadedness, fainting, altered consciousness, and sedation, which could impair his
driving.Id.at568.
3Id.at567(majorityopinion).

4See George J. Annas, Doctors, Drugs, and Driving Tort Liability for PatientCaused

Accidents,359NEWENG.J.MED.521,52124(2008).
5Martin P. Solomon, Letter to the Editor, Liability Ruling Gives Doctors Chills, BOSTON

GLOBE, Dec. 15, 2007, at A16 (discussing a fear that any time physicians write prescriptions
they will need their patients to sign a release stating that they have been informed of the
possiblesideeffects).
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2011 Coombes v. Florio 779

prescribe certain medications without requiring the patient to sign a

release,whichislogisticallyandprofessionallyimpossible.6
Many states have clearly limited their thirdparty liability rules;7
unfortunatelytheSJCfailedtostateanysuchclearlimitationsinCoombes.8
This Comment focuses on Florida and New Mexico in particular because
bothofthesestateshavewellestablishedrulesthathavebeendecidedby
the highest courts in each state.9 Liability in these jurisdictions has only
beenextendedtothirdpartiesinlimitedsituations.10InFlorida,arightto
redress will only extend to a thirdparty plaintiff if he or she is not only
foreseeable, but identifiable as well, or if the patient was under the
physicianscontrolwhenthetreatmentthatledtothethirdpartysinjury
was administered.11 Therefore, physicians in Florida are not liable to all
foreseeablethirdpartieswhoareinjuredasaresultofaphysiciansfailure
towarnapatientofhisorherinabilitytodrivewhiletakingprescription
drugs.12 In New Mexico, thirdparty liability is limited to cases where the
physician actually administered the treatment; liability has not been
extended to cases where the patient was given a prescription to take
outsidethepresenceofthephysician,wherehehadnoactualcontrolover
thetreatment.13
This Comment argues that Coombes, through the decision to remand

6Id.

7See, e.g., Weigold v. Patel, 840 A.2d 19, 28 (Conn. App. Ct. 2004); Werner v. Varner,

Stafford & Seaman, P.A., 659 So. 2d 1308, 131011 (Fla. Dist. Ct. App. 1995); Lester ex rel.
Mavrogenisv.Hall,1998NMSC047,25,126N.M.404,970P.2d590,598.
8SeeAnnas,supranote4,at521.

9See Pate v. Threlkel, 661 So. 2d 278, 282 (Fla. 1995) ([W]hen the prevailing standard of

care creates a duty that is obviously for the benefit of certain identified third parties and the
physicianknowsoftheexistenceofthosethirdparties,thenthephysiciansdutyrunstothosethird
parties.(emphasisadded)).CompareLester,1998NMSC047,25,970P.2dat598(declining
to extend thirdparty liability to cases where prescription drugs are taken out of the
physicianspresence),withWilschinskyv.Medina,775P.2d713,720(N.M.1989)(findingthat
aphysicianowesadutytothirdpartieswhomaybeinjuredbyapatientwhodrives,despite
thepatientsdiminishedcapacity,whenthetreatmentisadministeredbythephysicianinhis
office).
10SeePate,661So.2dat282;Werner,659So.2dat131011;Lester,1998NMSC047,15,

25,970P.2dat595,598;Wilschinsky,775P.2dat720.
11Cheeksv.Dorsey,846So.2d1169,1173(Fla.Dist.Ct.App.2003).

12Compare Werner, 659 So. 2d at 131011, with Coombes v. Florio, 877 N.E.2d 567, 57475

(Mass.2007)(Ireland,J.,concurring).
13CompareWilschinsky,775P.2dat720(holdingthephysicianliabletothirdpartyplaintiff

when the physician administered drugs to the patient himself), with Lester, 1998NMSC047,
15,970P.2dat595(findingtheinjuryto[thethirdparty]wastooremoteinrelationto[the
physicians] actions to warrant extending a duty when the physician gave the patient a
prescriptiontotakeoutsideofhispresence).
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780 NewEnglandLawReview v.45|777

andthevagueopinionsthatsupportedthatdecision,incorrectlyextended
physician liability in an overly broad manner, leaving physicians open to
almostendlesslitigation.14Now,almostanythirdpartywhocanclaimshe
was foreseeable to the physician may bring a civil case against that
physician.15Thisdecisionisnotnecessarilylimitedtofailuretowarncases
andcouldeasilybeextended.16Asaresultofsuchafarreachingdecision,
physicians in Massachusetts should be concerned about the negative
implicationssuchliabilitymighthaveonthewaytheypracticemedicine.17
The SJC should have followed the lead of Florida and New Mexico and
defined physicians liability in a much narrower fashion that would not
onlyleadtopredictabilityandconsistencyamongfuturecasesofthesame
natureinMassachusetts,butwouldalsolimitthenumberofthirdparties
whowereabletobringaclaim.
This Comment focuses on the negative implications of opening
physicians up to nearly limitless thirdparty liability. Part I of this
CommentexamineshowFloridaandNewMexicohavehandledphysician
liability in cases where third parties have been injured as a result of a
physiciansfailuretowarnapatientthattheprescribeddrugscouldimpair
their ability to drive. Part II looks at the holding in Coombes and how it
impacts physicians practicing within Massachusetts. First, it discusses
negativeconsequencesthatmayresultfromtheSJCspluralityopinionin
Coombes.Second,itexamineshowMassachusettscouldhaveavoidedsuch
problems by adopting the rule followed by both Florida and New
Mexicothat physicians are only liable to third parties if the patient was
under the control of the physician during the administration of the
treatmentleadingtotheinjury.PartIIIdiscusseshowthisrulingwillaffect
the confidentiality of patients medical records and doctorpatient
communications. Part IV points out how Coombes left many unanswered
questions regarding how far physician liability to third parties reaches,
specificallyregardingwhetheraphysicianmaybefoundliableforfailing
towarnapatientnottomixmedicationwithalcohol.

I. CaseLawinOtherJurisdictions

Jurisdictionsvaryonwhetherandwhenphysiciansareliabletothird
parties who are injured as a result of the physicians failure to warn the
patient not to drive while taking prescription drugs.18 Some jurisdictions

14Coombes,877N.E.2dat583(Cordy,J.,dissenting).

15Id.

16Id.at581(Marshall,C.J.,dissenting).

17SeeVictoriaMcEvoy,ADoctorsDilemma:PrescribingPainPillsisGettingTrickier,BOSTON

GLOBE,Feb.4,2008,atC1.
18See, e.g., Cheeks v. Dorsey, 846 So. 2d 1169, 1173 (Fla. Dist. Ct. App. 2003) (concluding
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2011 Coombes v. Florio 781

do not extend a physicians liability to third parties at all.19 Florida and

NewMexicoaretwojurisdictionsthatdoapplyphysicianliabilitytothird
party claimants in limited situations that are much narrower than the
liabilityinMassachusetts.20

A. TheFloridaApproachtoThirdPartyLiability

InFlorida,ifthepatientisnotunderthecontrolofthephysicianwhen
the drugs are administered, the physician is only liable to third parties if
they are not only foreseeable, but identifiable as well.21 In Pate v. Threlkel,
the Supreme Court of Florida held that a doctor had a duty to warn his
patients daughter about potential dangers to her resulting from her
mothers disease.22 The physician did not warn the patient of the genetic
transferability,and,asaresult,thepatientsdaughterremainedunawareof
heroptionsanddidnothingtoprotectherselfagainstdevelopingagenetic
carcinoma.23 The daughter brought action against the physician who
treated her mother.24 The court found the physician had a duty to the
daughter because she was not only foreseeable, but identifiable as well.25
The court compared the situation with the rights of thirdparty intended
beneficiariestorecoverfromprofessionalsandruledthat,becauseprivity
is not always required to prove liability, it should not be required under
thesecircumstances.26
Florida has not extended liability to unidentified third parties who
havebeeninjuredasaresultofaphysiciansfailuretowarnapatientnot
todriveacarwhiletakingprescriptiondrugs.27InWernerv.Varner,Stafford
& Seaman, P.A., a physician was treating a patient who had a seizure
disorder.28 The physician treated the patient with Dilantin29 and did not

thatthereisadutytoforeseeablethirdpartieswhendrugsareadministeredunderthecontrol
ofthephysicianandtheeffectsareimmediate);Calwellv.Hassan,925P.2d422,43334(Kan.
1996)(holdingthataphysicianhasnodutytowarnpatientsofsideeffectsofwhichtheyare
alreadyaware).
19SeeKirkv.MichaelReeseHosp.&Med.Ctr.,513N.E.2d387,399(Ill.1987).
20SeeinfraPartI.AB;seealsoCoombes,877N.E.2dat575(Ireland,J.,concurring).

21SeePatev.Threlkel,661So.2d278,282(Fla.1995);Cheeks,846So.2dat1173;Wernerv.

Varner,Stafford&Seaman,P.A.,659So.2d1308,1309(Fla.Dist.Ct.App.1995).
22661 So. 2d at 28182. The plaintiff and her mother both suffered from a type of throat

cancer.Id.at279.
23Id.

24Id.

25Id.at27982.

26Id.at28182.

27See Werner v. Varner, Stafford & Seaman, P.A., 659 So. 2d 1308, 131011 (Fla. Dist. Ct.

App.1995).
28Id.at1309.
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782 NewEnglandLawReview v.45|777

warnthepatientnottodrivewhiletakingthedrug.30Thepatientwasthen
involved in a car accident that injured a third party who subsequently
broughtnegligenceclaimsagainstboththepatientandthephysician.31The
complaintwasdismissed,andonappealthecourtaffirmedthedismissal,
reasoningthataphysiciansdutyonlyrunstoathirdpartywhenitisfor
thebenefitof[c]ertainidentifiedthirdpartiesandthephysicianknowsof
theexistenceofthosethirdparties.32Thethirdpartieshadnoclaimunder
Patebecausethephysiciandidnothaveadutytowarnthepatientbecause,
at the time he treated his patient, the third party was not known to the
physician.33
Cheeks v. Dorsey extended physician liability in another direction by
holdingthat,ifthepatientisunderthecontrolofthephysicianwhenthe
treatment is administered, there is a duty that extends to unidentifiable
thirdpartieswhoareinjuredbythepatientasaresultofthemedication.34
Cheeksdidnotoverturnthepreviouscaselaw;rather,itdistinguisheditself
from failuretowarn cases where whether the patient consumes the
medicationatallisbeyondthedoctorscontrol.35InCheeksthepatientwas
givenhisdoseofmethadone36intheclinicwherethestaffhadtheabilityto
observe the patient and examine his demeanor in order to determine
whetherhewassufferingfromsideeffectsthatcouldimpairhisdriving.37
Thephysicianhadactualcontroloverthepatientandshouldhaverealized
that the impaired patient was in no condition to drive when he left the
clinic.38ThecourtdifferentiatedCheeksfromWernerbecause,inCheeks,the
court considered failing to notice that a patient is actually suffering from
side effects an affirmative act... creat[ing] the risk that unidentifiable

29Dilantin is a brand name for the drug Phenytonin, which is typically used to control

seizures. JAMES J. RYBACKI, THE ESSENTIAL GUIDE TO PRESCRIPTION DRUGS 2006, at 83031
(HarperCollinsPublishers2006).Dilantinlowersandstabilizestheexcitabilityofnervefibers
andblocksthespreadofelectricalimpulsesalongnervepathways,whichmaybethecauseof
the seizures. Id. at 864. Possible side effects include mild fatigue, sluggishness and
drowsiness(insensitiveindividuals).Id.at832.
30Werner,659So.2dat1309.

31Id.

32Id.at130911(concludingthat[t]he[thirdpartywas]neitherknownnoridentifiableto

[thephysician]thereforethephysicianowednodutytothethirdparty).
33Id.at1311.

34846So.2d1169,1173(Fla.Dist.Ct.App.2003).

35Id.

36Methadone is a synthetic narcotic ... used to relieve pain and to relieve withdrawal

symptomsindetoxificationtreatmentofheroinandmorphineaddiction.IRAG. DOXETAL.,
ATTORNEYSILLUSTRATEDMEDICALDICTIONARY,atM29(1997).
37SeeCheeks,846So.2dat117071.

38Id.at1173.
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2011 Coombes v. Florio 783

third parties might be injured, as opposed to simply failing to warn a

patientofpossiblesideeffects.39
InFloridathereareonlytwowaysinwhichaphysiciancanbefound
liabletoathirdpartyplaintifffornegligentlyfailingtowarnapatientnot
to drive while taking medication: 1) if the third party is foreseeable and
identifiabletothephysician;40or2)ifthetreatmentwasadministeredinthe
presenceofthephysician.41

B. TheNewMexicoApproachtoThirdPartyLiability

In Wilschinsky v. Medina the patient took Percodan42 for a migraine.43

When the Percodan did not work, she went to the doctor who then gave
heraninjectionofMeperidine44andotherdrugstocounteractthenausea
caused by the Meperidine.45 Shortly after receiving this treatment, the
patientleftthehospitalandwasinvolvedinacaraccident.46TheSupreme
Court of New Mexico held that the doctor was liable to the thirdparty
accident victim because the physician owed a duty to the public who
might be injured by a patients impaired ability to drive when a doctor
administeredpowerfuldrugsinhisoffice.47Thecourtfoundthatitwould
have been much easier for the physician to control the patients reactions
and take preventative measures when he was present for the
administration of the drug.48 The physicians actual presence when the
patient was given the treatment would cause the patient to rely on the
doctorsprofessionaljudgment,leavingherlikelytoassumethatitwas
safetodriveifthephysiciansaidnothing.49
The Supreme Court of New Mexico later held in Lester ex rel.
Mavrogenisv.Hallthatthisdutycouldnotbeextendedtoinstanceswhere

39Id.

40See Werner v. Varner, Stafford & Seaman, P.A., 659 So. 2d 1308, 131011 (Fla. Dist. Ct.

App.1995).
41SeeCheeks,846So.2dat1173.

42Percodan is a brand name for the drug Oxycodone, which is used to treat people in

moderate to severe pain. RYBACKI, supra note 29, at 796. [T]his drug suppresses pain
perceptionandcalmstheemotionalresponsetopain.Id.
43Wilschinskyv.Medina,775P.2d713,714(N.M.1989).

44Meperidineisusedtorelievemoderatetoseverepain.RYBACKI,supranote29,at621.The

dosage varies according to the severity of the pain and the patients response. See id.
Meperidine may cause weakness, fainting, disorientation, hallucinations, interference with
urination,constipation,anditmayalsobehabitforming.Id.
45Wilschinsky,775P.2dat714.

46Id.

47Id.at720.

48Id.at71617.

49Seeid.at717.
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784 NewEnglandLawReview v.45|777

thephysiciansimplyneglectedtowarnthepatientthatheshouldnotdrive
while taking certain prescription drugs.50 In Lester, the patient was
prescribedseveraldrugs,includingLithium.51Afewdayslaterthepatient
was involved in a car accident resulting from lithium toxicity.52 The
physician did not have a duty to third parties in this case because the
patients taking of the drug outside of [the physicians] control made
preventative measures more difficult and reliance on professional
judgment more remote.53 The court was concerned with the impact that
imposing liability on the doctor in this situation would have on the
traditionaldoctorpatientrelationship.54ThelegislatureinNewMexicohad
already acted affirmatively to limit health care providers liability
throughtheMedicalMalpracticeAct.55Thecourtfoundthattoallowthe
casetogoforwardwouldbeinconsistentwiththelegislaturesstance.56

50SeeLesterexrel.Mavrogenisv.Hall,1998NMSC047,13,126N.M.404,970P.2d590,

595.
51Id.2,970P.2dat591.Lithiumisusedforthetreatmentofbipolardisorderandworksto

reducethefrequencyandintensityofmanicepisodes.RYBACKI,supranote29,at591.
52Lester,1998NMSC047,2,970P.2dat591.Itisuncertainwhetherthephysicianwarned

thepatientoftherisksoflithiumtoxicity.Id.Lithiumtoxicitycanoccuratdosesverycloseto
therapeutic level. RYBACKI, supra note 29, at 594. Clinical signs of lithium toxicity include
drowsiness,sluggishness,unsteadiness,tremor,muscletwitching,vomiting,ordiarrhea.Id.
53Lester, 1998NMSC047, 7, 970 P.2d at 592. The Supreme Court of South Carolina has

alsoheldthatphysicianscanbeliabletothirdpartiesforfailingtowarnpatientsoftheeffects
ofmedicalproceduresthatareperformedwithinthepresenceofthephysician.Hardeev.Bio
Med. Applications of S.C., Inc., 636 S.E.2d 629, 63132 (S.C. 2006). Hardee involved a patient
whowasreleasedfromadialysiscenterafterreceivingdialysistreatmentandwasnotwarned
of the possible effects that the treatment could have on his ability to drive. Id. at 630. The
patientlost controlofhisvehicle,resultinginan accident thatkilledthepatientandinjured
another party. Id. The injured party then brought an action against the physician for
negligence in the patients treatment for failing to warn about possible side effects of the
dialysis. Id. The court specifically pointed out that this was a narrow holding that does not
affect the doctorpatient relationship. Id. at 63132 (holding that the duty to warn a patient
extendstoathirdpartyinsituationswherethephysicianprovidestreatmentwhichitknows
mayhavedetrimentaleffectsonapatientscapacitiesandabilities(emphasisadded)).
54See Lester, 1998NMSC047, 8,970 P.2d at 593.The court was worried that if this case

weretogoforwarditwouldaffectnotonlytheuseofprescriptionmedication,butalsothe
confidentialitythatexistsbetweenadoctorandhispatient.Id.
55See N.M. STAT. ANN. 4152 (West 2003). Thepurpose of this act was to promote the

health and welfare of the people of New Mexico by making available professional liability
insuranceforhealthcareprovidersinNewMexico.Id.
56Lester,1998NMSC047,11,970P.2dat593.
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II. TheSupremeJudicialCourtsRulinginCoombesv.Florio

Dr.RolandFloriohadbeenDavidSaccasprimarycarephysiciansince
1999.57 In 2000 Sacca was diagnosed with a number of serious medical
conditions,includinglungcancer.58FloriowarnedSaccathatheshouldnot
drivewhilehewasbeingtreatedforcancerbecauseitwasunsafe.59In2001,
after his treatment ended, Florio advised Sacca that he could safely drive
again.60 At the time of the accident, Florio had prescribed Sacca several
prescription drugs61 with potential side effects, including: drowsiness,
dizziness,lightheadedness,fainting,alteredconsciousness,andsedation.62
The plaintiffs expert testified that this combination of drugs could cause
more serious side effects, and those side effects could be worse for older
patients.63Dr.FloriofailedtowarnSaccaaboutthepossiblesideeffectsof
hismedicationorthathisdrivingmaybeimpairedasaresult.64Saccadid
notcomplainofanysideeffectstoFlorioandhadnotroubledriving.65
About twoandahalf months after his last appointment with Dr.
Florio, Sacca lost consciousness while driving; his car veered onto the

57Coombesv.Florio,877N.E.2d567,568(Mass.2007)(Ireland,J.,concurring).

58Id. Sacca also suffered from asbestosis, chronic bronchitis, emphysema, and high blood

pressure.Id.Asbestosisisa[d]iseasecharacterizedbydiffusethickeningandscarringoflung
tissue...thatisdirectlyrelatedtothedurationandintensityofexposuretoasbestosdust.
DOX ET AL., supra note 36, at A77. Chronic bronchitis consists of a [g]eneralized narrowing
andobstructionoftheairwaysinthelungslastinglongerthanthreeconsecutivemonthsinat
least two successive years. Id. at B34. Emphysema is when there is an [a]bnormal and
permanentenlargementofairspaces...distaltotheterminalbronchiolesinthelungs.Id.at
E19.
59Coombes,877N.E.2dat568(Ireland,J.,concurring).

60Id.

61Id.SaccahadalsobeenprescribedOxycodone,Zaroxolyn,Prednisone,Paxil,Oxazepam,

and Furosemide. Id. Oxycodone is used to help relieve moderate to severe pain. RYBACKI,
supra note 29, at 796. Zaroxolyn is a diuretic which is used to increase the amount of urine
produced,andithelpstocorrectfluidretentionwhichiscausedbycongestiveheartfailure,
corticosteroid or estrogen use, and certain types of liver and kidney disease. Id. at 105253.
Prednisone is used to treat a wide variety of allergic and inflammatory conditions. It is
typically used to treat serious skin disorders, asthma, gout, lupus erythematosus, regional
enteritis, ulcerative colitis, nephrotic syndrome and all types of major rheumatic disorders.
Id. at 866. Paxil is the brand name for Paroxetine. Id. at 801. It is used mostly to treat
psychiatric disorders including depression, obsessive compulsive disorder, panic attacks,
socialanxietydisorder,andsocialphobias.Id.at80102.Furosemideisanotherdiureticthatis
usedforthesamefunctionsasZaroxolyn.Seeid.at45758.
62Coombes,877N.E.2dat568(Ireland,J.,concurring).

63Id.Thepatientwasinhisseventiesatthetimeoftheaccident.Id.

64Id.at569.

65Id.
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786 NewEnglandLawReview v.45|777

sidewalk hitting and killing a tenyearold boy.66 Sacca regained

consciousness shortly after and was taken to the hospital, but he left
againstmedicaladvicebeforetheycoulddeterminewhatcausedthelossof
consciousness.67
The decedents mother brought an action against Florio for
negligently prescribing medication without warning Sacca of the dangers
posed by its side effects, and without warning Sacca not to drive.68 The
superior court granted Florios motion for summary judgment, holding
that there was no special relationshipbetween Florio and Coombes, and
thatFlorioowedCoombesnoduty.69

A. JusticeIrelandsConcurrence

On appeal to the SJC, the plaintiff presented three arguments, two of

whichJusticeIreland,joinedbyJusticesSpinaandCowin,determineddid
not apply.70 The argument that Justice Irelands concurrence found
applicablewasthatFloriowasnegligentinfailingtowarnSaccaoftheside
effects, and since the plaintiffs injury was foreseeable, Florios duty
extended to the plaintiff.71 Justice Irelands opinion stated that
[p]hysicians...arerequiredtoinformtheirpatientsofthosesideeffects
theydeterminearenecessaryandrelevantforpatientstoknowinmaking
aninformeddecision.72
Justice Irelands concurrence compared Coombes to a variety of cases
outsideofthemedicalfieldwhereliabilitywasextendedtothirdparties.73
Thesecasesinvolvedeitherthesaleofalcoholtominors74orthecontinued
serviceofinebriatedindividualsbybartenders,75bothsituationsleadingto
car accidents in which third parties were injured.76 Justice Ireland also

66Id.;seeid.at576(Greany,J.,concurringinpartanddissentinginpart).

67Id.at569(Ireland,J.,concurring).

68Coombes,877N.E.2dat569(Ireland,J.,concurring).
69Id.

70See
id. at 56970. Justice Ireland wrote that [t]he plaintiffs special relationship and
assumeddutytheories[were]inapplicable.Id.at570.
71Id.at56970.

72Id. at 57071 (quoting Cottam v. CVS Pharmacy, 764 N.E.2d 814, 820 (Mass. 2002)). In

Cottam, the court provided that the learned intermediary doctrine gave the physician the
soledutyofwarningthepatientofpossiblesideeffectsofprescribedmedication.SeeCottam,
764N.E.2dat820.
73Coombes,877N.E.2dat571(Ireland,J.,concurring).

74MichnikZilbermanv.GordonsLiquor,Inc.,453N.E.2d430,43134(Mass.1983).

75Adamianv.ThreeSons,Inc.,233N.E.2d18,1920(Mass.1968).

76Coombes, 877 N.E.2d at 57172 (Ireland, J., concurring). In MichnikZilberman, a woman

broughtaclaimagainstaliquorstoretorecoverforthedeathofherhusband.430N.E.2dat
431. The husband was killed when he was hit, while riding his bike, by a drunken teenager
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2011 Coombes v. Florio 787

focusedonacaseinwhichawomanleftagunrackunlockedaroundher
mentally unstable son, who gained access and shot a police officer.77
Ireland compared Coombes to cases in other jurisdictions that extend
physician liability to similarly foreseeable third parties who were
subsequentlyinjuredasaresultofphysiciansfailuretowarntheirpatients
of the dangers of driving on medication.78 The concurrence specifically
mentioned other jurisdictions that imposed only limited liability upon
physicians to thirdparty plaintiffs; however, Justice Ireland refused to
make any such distinctions in his concurrence.79 Instead, the opinion
recognizedthatthephysicianfullybelievedandintendedforthepatientto
take the medication that was prescribed to him; therefore, the effects that
the medication could have on the patients ability to drive should be
considered a foreseeable result.80 Justice Irelands opinion stated that a
physician owes a duty of reasonable care to everyone foreseeably put at
riskbyhisfailuretowarnofthesideeffectsofhistreatmentofapatient.81
IncomparingthiscasetobothJupinandMichnikZilberman,JusticeIreland
foundacommonlinkinthefactthatthedefendantswhowerefoundtobe
liabletothirdpartiesacteddespiteaforeseeablerisk.82

B. JusticeGreaneysConcurringandDissentingOpinionandthe
DissentsofChiefJusticeMarshallandJusticeCordy

Justice Greaney, who concurred in part and dissented in part, agreed

with Justice Ireland that there should be liability imposed when a
physicianwhoisawareofforeseeableinjuriesfailstowarnapatientnotto
drive while taking medication.83 However, he also felt that the Irelands

who had purchased alcohol from the defendant liquor store earlier that day. Id. at 432. The
court found that [a]ny vendor may be responsible for the foreseeable consequences of its
negligentsaletoaminor,becausethevendorshouldcompletelyrefrainfromsuchasale.Id.
at434n.6.InAdamian,theplaintiffbroughtasuitagainsttheownerofarestaurantandbarfor
servinganalreadyintoxicatedindividualandallowinghimtodrivewhileintoxicated,which
resultedinacollisionwiththeplaintiff.233N.E.2dat19.Thecourtfoundthatthedefendant
could be liable to the third party if his conduct proved to be the proximate cause of the
plaintiffsinjuriesbecause,notonlydidheviolateastatute,buttheintendedpurposeofthe
statutewastoprotectagainstpreciselywhathappened.Seeid.at1920.
77Coombes, 877 N.E.2d at 57172 (Ireland, J., concurring) (citing Jupin v. Kask, 849 N.E.2d

829,837(Mass.2006)).
78Id. at 572 (citing McKenzie v. Haw. Permanente Med. Grp., Inc., 47 P.3d 1209, 122022

(Haw.2002);Joyv.E.Me.Med.Ctr.,529A.2d1364,1366(Me.1987)).
79Id.at57273.

80Id.at573.

81Id.at572.

82Seeid.at57172.

83Coombes,877N.E.2dat576(Greaney,J.,concurringinpartanddissentinginpart).
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788 NewEnglandLawReview v.45|777

opinionwastoobroadandthatitleftphysiciansopentonegligenceclaims
from almost anyone with whom the physicians patient could come in
contact.84[A]physiciansdutytowarnapatientarisesentirelywithinthe
contextofthephysicianpatientrelationship[and]thisdutyisowedstrictly
to the patient....85 Justice Greaney felt that future cases involving
physicians liability to third parties should be decided on a casebycase
basis.86
According to Chief Justice Marshall, who dissented, the physician
owednodutytothedecedent,andthereforethesummaryjudgmentwas
properly granted.87 Chief Justice Marshall believed the courts decision88
would affect the way physicians practiced medicine: it would take away
the physicians ability to use professional judgment to determine which
side effects he did or did not have to warn his patient about.89 As such,
Justice Irelands vague opinion would lead to an attendant increase in
expenses at a time when our health care system is already overwhelmed
withcollateralcosts.90
Justice Cordy, who also dissented, argued that the courts decision
wouldleadnotonlytounlimitedthirdpartyliability,butwouldthreaten
the physicianpatient confidentiality, which is extremely important to the
medical system.91 Justice Cordy expressed concern that these thirdparty
plaintiffs would gain access to patientphysician discussions involving
confidential information.92 In a typical malpractice suit brought by the
patient,thereisanimpliedwaiverofthisconfidentiality,butwhenaparty
otherthanthepatientisbringingthesuitagainstthephysician,thereisno
suchimpliedwaiver.93JusticeCordyfearedphysicianscouldnowbecome
overly concerned with protecting themselves from liability and fail to
adequatelyfocusontheneedsofthepatients.94Attheendofhisdissent,

84Id.

85Id.at579.
86Id.at580.

87Id.(Marshall,C.J.,dissenting).
88Decision refers to the holding of the casethat summary judgment in favor of the

physician was inappropriateand reflects the combination of Irelands concurrence and

Greaneysopinion.Seesupratextaccompanyingnotes7086.
89SeeCoombes,877N.E.2dat581(Marshall,C.J.,dissenting).

90Id.at583.

91Id.(Cordy,J.,dissenting).

92Id.

93Id.at588.

94Id. at 587. There is some concern that as a result of this ruling, physicians in

Massachusetts will be too cautious when it comes to providing their patients with pain
medication. See McEvoy, supra note 17 (stating that some of her colleagues have been so
concerned over this ruling that it has affected the way in which they practice medicine). A
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2011 Coombes v. Florio 789

JusticeCordycitedseveralotherjurisdictionsthathaverefusedtoextenda
physiciansliabilitythisfar.95

III. ConfidentialityIssuesThatCouldAriseasaResultofThisDecision

In his dissent, Justice Cordy mentioned how such a broad opinion

allowing third parties to bring claims against medical professionals for
their negligence in failing to warn patients not to drive while taking
medicationwouldlikelyleadtothediscoveryofprivilegedconversations
between the doctor and patient.96 If a patient sues his doctor for
malpractice, the patient waives confidentiality because the doctor now
holds the right to defend himself; there becomes a problem, however,
whenitisnotthepatientbutratherathirdpartysuingthedoctor.97Inthe
latterscenario,thepatientdidnotwaivehisorherrighttoconfidentiality,
eitheraffirmativelyorthroughanyimpliedaction.98Unlessapplicablelaw
requires health care providers to disclose medical records information of
nonparty patients under the circumstances, they should attempt to assert
the confidential communications privilege on behalf of the patient if the
patient is not a party to the lawsuit.99 Justice Cordy was concerned that
such suits may lead to discovery of confidential information and that the
courtsrulingwouldlikelyleadtoanunlimitednumberofthirdparties
whocouldcompelthissortofdiscovery.100
Somejurisdictionshavefoundthatapatientsmedicalrecordscannot
be exposed when another party brings a civil suit against the patients
physician.101TheOhioSupremeCourtrecentlyheldthatmedicalrecordsof
third parties are not subject to disclosure and litigants have no right to
discover such records.102 A common theme that arises in these cases is

studyconductedbytheMassachusettsMedicalSocietyshowedthat83percentofphysicians
reported practicing defensive medicine.... The costs of these practices . . . were
conservatively estimated at $1.4 billion. Alan C. Woodward, THE TIME HAS COME FOR
LIABILITYREFORM,MASS.MED.L.REP.,Winter2009,at9.
95Coombes,877N.E.2dat588n.6(Cordy,J.,dissenting)(citingKirkv.MichaelReeseHosp.

& Med. Ctr., 513 N.E.2d 387, 399 (Ill. 1987); Calwell v. Hassan, 925 P.2d 422, 43334 (Kan.
1996)).
96Seeid.at583.

97Id.at588.

98Id.

99WILLIAM H. ROACH, JR. & THE ASPEN HEALTH LAW & COMPLIANCE CTR., MEDICAL

RECORDSANDTHELAW245(3ded.1998).
100Coombes,877N.E.2dat583(Cordy,J.,dissenting).

101See,e.g.,InreD.H.,746N.E.2d274,276(Ill.App.Ct.2001);Moorev.St.JohnsEpiscopal

Hosp.,452N.Y.S.2d669,670(App.Div.1982).
102Roev.PlannedParenthoodSw.OhioRegion,122OhioSt.3d399,2009Ohio2973,912

N.E.2d61,at46,5053.This wasanactionbroughtby theparentsofa fourteenyearold

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790 NewEnglandLawReview v.45|777

whether redacting identifying marks, such as the patients name or any

identifying numbers, would make it permissible to disclose confidential
records and communications.103 However, even if Massachusetts were to
employarulethatrequireddistinguishingmarkstoberemoved,itwould
still be impossible to protect the patients identity in a case where the
patient sues the physician and the driver in the same action, because the
patientwouldhavealreadybeenidentifiedearlierinthecase.104
Floridahasverystrictruleswhenitcomestotheproductionofthird
partypatientsmedicalrecords.105Floridalawstates:
Patient records are confidential and must not be disclosed
without the consent of the person to whom they pertain, but
appropriatedisclosuremaybemadewithoutsuchconsent...In
any civil or criminal action, unless otherwise prohibited by law,
upon the issuance of a subpoena from a court of competent
jurisdictionandpropernoticebythepartyseekingsuchrecords
tothepatientorhisorherlegalrepresentative.106

BecausetheFloridalawregardingdisclosureofthirdpartymedicalrecords
is more stringent than the Health Insurance Portability and
Accountability Act of 1996 (HIPAA),107 the law is not preempted by
HIPAA and can therefore be applied to such cases.108 In jurisdictions
without more stringent laws, HIPAA would govern such cases by
default.109
Massachusettsdoesnothavesuchastrictstatutewhenitcomestothe

girl who procured an abortion from Planned Parenthood. Id. at 5. The parents (the Roes)
claimed that Planned Parenthood illegally performed the abortion and that Planned
Parenthoodfailedtomeettheirdutytoreportsuspectedchildabuse.Id.TheRoesthensought
discovery of their daughters medical records, as well as the records of any other minors
treated at Planned Parenthood in the past ten years. Id. at 14. The court determined that
there was no right to discover medical records of a nonparty to the suit that are typically
consideredconfidential.Id.at50,53.
103See,e.g.,Parksonv.Cent.DuPageHosp.,435N.E.2d140,14344(Ill.App.Ct.1982).
104SeegenerallyCoombes,877N.E.2d567(Ireland,J.,concurring).

105See United States v. Diabetes Treatment Ctrs. of Am., No. Civ. 993298, 2004 WL

2009416,at*4(D.D.C.May17,2004).
106FLA.STAT.ANN.395.3025(4)(d)(West2009).

107Pub.L.No.104191,110Stat.1936(codifiedasamendedinscatteredsectionsof18,26,

29, and 42 U.S.C.). HIPAA creates standards for protecting private identifiable health
information by setting out what information may or may not be disclosed. Eugene
ApplebaumColl.ofPharmacyandHealthScis.,HIPAA,WAYNEST.U.,http://cphs.wayne.edu
/hipaa/index.php(lastvisitedApr.23,2011).
108DiabetesTreatmentCtr.ofAm.,2004WL2009416,at*2.

109See
id. (stating that states can apply more stringent restrictions with respect to the
disclosure of patient information but that HIPAA generally preempts contrary state
disclosurelaws).
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2011 Coombes v. Florio 791

privacy of the patients medical records; therefore patients who are

residents of Massachusetts are more vulnerable to having their records
discovered than patients who reside in Florida.110 Because there is no
statute with a builtin notice requirement affording patients the
opportunity to object when a thirdparty plaintiff is looking to discover
theirmedicalrecords,therecordswilllikelybediscoverableinmost,ifnot
all, of the thirdparty negligence claims brought against physicians in
Massachusetts.111IftheSJChadadoptedarulebasingaphysiciansliability
tothirdpartiesonwhetherthephysicianhadcontroloverthepatientwhen
the treatment was administered, there would likely not only be a
significantly smaller number of thirdparty claims that could be brought,
but these cases would likely require a more limited discovery into the
patients records.112 If physician liability is based on the failure of the
physician to warn the patient not to drive while taking medication, the
discoverablerecordswouldlikelyentaileverytimethephysiciansawthe
patient because he prescribed the medication.113 However, if the liability
were based on the physicians control, such as in Florida, the discovery
wouldonlyincludeonevisitandtheobservationsthatthephysicianmade
ofthepatientsconditiononthatday.114

IV. LackofClarityRegardingWhetheraPhysicianWouldBeHeld
LiableUnderthisRulingifthePatientMixedHisPrescriptionDrugs
withAlcohol

The plurality remanded the case because it found that Florios act of
prescribing certain medications to Sacca could have created a foreseeable
risk,andifsuchriskdidoccur,hehadadutytowarnSaccaofthepotential
sideeffects,andthisdutyrantoCoombes.115However,theSJCleftopento
the physicians discretion the determination as to which side effects to
warn about.116 This puts physicians in Massachusetts in the dangerous

110SeeMercierv.CourtyardNursingCareCtr.,No.070421,2009WL1873746,at*1(Mass.

Super.Ct.June11,2009).
111Cf.id.at*12.

112Forexample,inCheeksv.Dorsey,thefocuswaslimitedtothepatientsinteractionwith

the doctor during the specific instance related to the thirdparty injuries that were the
foundationofthelawsuit.846So.2d1169,1173(Fla.Dist.Ct.App.2003).
113SeeCoombesv.Florio,877N.E.2d567,56869(Mass.2007)(Ireland,J.,concurring).The

courtwouldlikelywanttoseetherecordsofeverytimeDr.FloriosawSaccabetweenthetime
FloriotoldSaccahecoulddriveandJanuary4,2002todetermineifFloriowarnedSaccanotto
driveduringanyofthoseappointments.Seeid.
114See,e.g.,Cheeks,846So.2dat1173(findingimpairmenttoberelevantonlyatthetimethe

methadonewasadministered).
115Coombes,877N.E.2dat575(Ireland,J.,concurring).

116Seeid.at574&n.6.
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792 NewEnglandLawReview v.45|777

position of having to guess which side effects the court could later
determine were foreseeable.117 While Justice Ireland framed his opinion
broadly,heneglectedtomentiononeimportantpossibility:whathappens
ifthepatientweretomixthedrug(s)thephysicianprescribedwithother
drugs or alcohol and get into a car accident?118 Ironically, Justice Ireland
cited many cases involving accidents resulting from alcohol intoxication
wherethedistributorofthealcoholwasfoundliable,buthisopinionnever
mentionedaphysiciansliabilityifapatientweretomixalcoholandtheir
prescriptions.119
Mixing even small amounts of alcohol with certain medications can
makedrivingdangerous.120Alcoholcanreactnegativelywithmedications
that most patients do not think would be affected by alcohol.121 Justice
Irelanddoesnotmakeitclearifthephysicianisliableonlyforwarningof
thesideeffectsofthemedicationitself,oriftheymustwarnofanypossible
interactions as well.122 If the physician were found liable for not warning
about the effects of mixing alcohol with prescriptions, then what is to be
done with the patient who is a chronic alcoholic?123 If the physician is
aware of the fact that the patient is likely to disregard the physicians
warninganddrinkanddrivewhileonthemedication,doesthephysician
then, out of fear ofliability, put his concerns regarding potential lawsuits
fromthirdpartyplaintiffsaheadoftheneedsofhispatient?124
Somecourtshavefoundnodutytothirdpartiestowarnthepatientof
potentialsideeffectswhenthedangersareopenandobvious.125Drinking
and driving would likely fall into the category of an obvious danger,

117Seeid.

118Seeid.

119Seeid.at57172.

120NATL INST. ON
ALCOHOL ABUSE & ALCOHOLISM, NATL INST. OF HEALTH, HARMFUL
INTERACTIONS: MIXING ALCOHOL WITH MEDICINES 2 (2007), available at http://pubs.niaaa.nih.
gov/publications/Medicine/Harmful_Interactions.pdf.
121Seeid.
122SeeCoombes,877N.E.2dat575(Ireland,J.,concurring).

123See STEDMANS MEDICAL DICTIONARY 46 (Lippincott Williams & Wilkins 28th ed. 2006)

(1911). Alcoholism is defined as the chronic excessive consumption of alcohol leading to

intoxication.Id.Alcoholismisachronic,progressivebehavioraldisordercharacterizedbya
strongurgetoconsumeethanol...despiteadverseconsequences.Id.(emphasisadded).
124SeeCoombes,877N.E.2dat58182(Marshall,C.J.,dissenting).

125Id.at574n.6(Ireland,J.,concurring)(citingWeigoldv.Patel,840A.2d19,2627(Conn.

App.Ct.2004)(findingtherewasnodutytowarnofthedangersofdrivingwhenthepatient
wasawarethatthemedicationcauseddrowsinessandwouldimpairherabilitytooperatean
automobile);Youngv.Wadsworth,916S.W.2d877,878(Mo.Ct.App.1996)(Thereisnoduty
or need to warn others of dangers which are open and obvious or which are commonly
known.)).
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2011 Coombes v. Florio 793

whetherornottakingmedication.126Thereforethephysicianshouldnotbe
obligatedtowarnthepatientnottomixtheprescriptionwithalcoholand
drive;howevertheSJChassofarbeensilentonthisissue.127
InFloridatherearetwowaysaphysiciancanbefoundliabletoathird
party plaintiff: 1) the thirdparty was both foreseeable and identifiable to
thephysician;128or2)thedoctorhadcontroloverthepatientatthetimethe
treatmentwasadministered.129Thepresentcircumstancesarenotlikelyto
fall under the first situation.130 Therefore, we must rely on Cheeks to
determine how Florida would rule on a physician prescribing medication
toapatientwhomixesthemedicationwithalcohol.131Cheeksisdirectlyon
pointwiththeissueofmixingalcoholandprescriptiondrugs,holdingthat
[w]henoneadministersadrugwhich,whencombinedwithotherdrugs
oralcohol,mayseverelyimpairthepatient,thedoctorsfailuretotakethe
proper precautions... is an affirmative act which creates the risk that
unidentifiable third parties might be injured.132 Therefore, if a patient
weretoshowupinebriatedtoaphysiciansofficeinFlorida,thephysician
wouldbeliableifheadministeredthetreatmentinhisoffice,butnotifhe
simplygavethepatientaprescriptiontofilloutsideofhispresence.133
New Mexico would likely determine this issue similarly.134 Physician
liabilityinNewMexicoisalsobasedonthecontrolthephysicianhasover

126See Luigi Fraschini, DWI Courts: Cure for Drunk Driving Carnage, http://www.drivingt

oday.com/features/archive/dwi_courts_cure_for_drunk_driving/index.html(Itisabundantly
clear that drunk driving is an important health and safety issue in the United States.) (last
visitedApr.23,2011).
127SeeCoombes,877N.E.2dat575(Ireland,J.,concurring).

128SeeWernerv.Varner,Stafford&Seaman,P.A.,659So.2d1308,131011(Fla.Dist.Ct.

App.1995).
129SeeCheeksv.Dorsey,846So.2d1169,1173(Fla.Dist.Ct.App.2003).

130SeePatev.Threlkel,661So.2d278,282(Fla.1995)(holdingthatthephysicianwasliable

to his patients daughter for failure to warn her of her genetic predisposition for the same
diseasehermotherhadbecauseshewasanidentifiablethirdparty).Therecould,however,be
ararecasewhereaphysicianisawarethatapatientnotonlyislikelytomixhisprescription
withalcoholbut,forexample,thephysicianisalsoawareofthefactthatthepatientdriveshis
mothertochurcheverySundayandislikelytoinjureherinacaraccidentasaresult.Seeid.In
thissituationweareunabletopredicthowtheFloridacourtswoulddecidethecase,butthis
issuchalimitedexampleitisnotlikelytobearecurringproblem.
131Cheeks,846So.2dat1173.

132Id.Anotherpatientatthemethadoneclinictestifiedthatthepatientlookeddisoriented

andupsetandthathiseyeswereveryred.Id.at1171.Itwentagainsttheclinicspolicyto
administermethadonetoapatientwhowashigh.Id.
133Seeid.at117273.

134SeeLesterexrel.Mavrogenisv.Hall,1998NMSC047,2425,126N.M.404,970P.2d

590,598.
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794 NewEnglandLawReview v.45|777

the patient when the treatment is administered.135 Therefore, the New

Mexico Supreme Court would likely rule the same way the Florida court
ruledinCheeksanddeterminethatthephysicianwouldbeliablewhenthe
patientmixedhisprescriptionwithalcoholonlywhenthemedicationwas
actuallytakeninthepresenceofthephysician.136
If Justice Irelands opinion had followed the persuasive precedent of
these jurisdictions, Massachusetts physicians would be free from liability
when patients take medication outside of their control, and they would
consequently not be left wondering whether they should prescribe
medication to their patients who are known alcoholics.137 The rules
establishedinbothFloridaandNewMexicoarebetterrulesthanwhatwe
are left with in Massachusetts after Coombes because they are clearer and
describe narrow situations in which physicians may be liable to third
parties.138Concernoverthecombinationofprescriptiondrugsandalcohol
is only the tip of the iceberg: what about interactions between the
prescribeddrugandanyotherdrugsthepatientistaking,oranyadverse
reactionsrelatedtoapreexistingconditionthepatientmayhave?Inthe
wakeofCoombes,doctorsmayrefusetoprescribeusefulmedicationsoutof
fear of litigation.139 The control rule is the proper rule because it bases
liability on the physicians opportunity to make an informed decision
regarding whether the patient is capable of operating a motor vehicle
safely after a certain treatment, based on knowledge of the circumstances
andobservationofthepatient.140

CONCLUSION

InCoombesv.FloriotheSJCallowedathirdpartynonpatienttobring
negligence claims against a physician for failing to warn his patient of
potential side effects of medication he prescribed.141 Nowhere in the
opinionsthatformedtheholdingofthecasedoesitclearlystatewhatitis
that the physician must warn about; instead Justice Irelands concurrence
generallystatesthat[a]nydutythat[thephysician]owedtowarnofthe

135Seeid.at13,970P.2dat595;Wilschinskyv.Medina,775P.2d713,715(N.M.1989).

136SeeCheeks,846So.2dat1173;Lester,1998NMSC047,13,970P.2dat595;Wilschinsky,

775P.2dat715.
137See Cheeks, 846 So. 2d at 1173; Lester, 1998NMSC047, 7, 970 P.2d at 59293;

Wilschinsky,775P.2dat717.
138See Lester, 1998NMSC047, 25, 970 P.2d at 598 (Wilschinsky is an exception to the

general rule that a physician owes a duty to his or her patient, and not to third party non
patients.).
139SeeMcEvoy,supranote17.

140SeeWilschinsky,775P.2dat71617.

141Coombesv.Florio,877N.E.2d567,57475(Mass.2007)(Ireland,J.,concurring).
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2011 Coombes v. Florio 795

sideeffectsofmedicationheprescribedextendednotonlyto[thepatient],
but to those whose injuries were foreseeably caused by the resulting
accident.142 While Justice Ireland goes on to say that the physician does
nothavetowarnofeverypossiblesideeffect,thatis,ineffect,exactlywhat
this ruling requires.143 There is no guidance regarding how to determine
which warnings are necessary to prevent litigation.144 The language in
JusticeIrelandsopiniondidnotevenlimitthiscasetowarningsregarding
driving, potentially leaving physicians open to all sorts of liability.145 The
SJC did not decide if there was an affirmative duty to warn a patient of
openandobviousdangers,suchasdrivingaftercombiningprescription
drugswithalcohol.146Thiscasealsoraisesasignificantconcernregarding
theissueofthenonpartypatientsconfidentiality.147TheSJCshouldhave
clarifieditsdecisioninCoombesv.FloriobyfollowingeithertheFloridaor
New Mexico model.148 Coombes has left many Massachusetts physicians
fearful of prescribing drugs.149 No such fear would exist if the court had
adoptedarulebasingthirdpartyliabilityonthephysiciansactualcontrol
overthepatientatthetimethetreatmentwasadministered.

142Id.at574.
143Seeid.
144Seeid.at57274.

145ChristopherJ.Jockey&PhillipResnick,PhysiciansDutytoPreventHarmtoNonpatients:

PhysiciansMayBeHeldLiableforAccidentalHarmDonetoOthersbyTheirPatientintheCourseof
Treatment, 36 J. AM. ACAD. PSYCHIATRY & L. 580, 58083 (2008), available at http://www.jaa
pl.org/cgi/content/full/36/4/580 (discussing how a physician may have to warn about
everythingfromcarryinggroceriestoholdingachild).
146SeeCoombes,877N.E.2dat57475(Ireland,J.,concurring).

147SeesupraPartIII.

148See supra Part I (explaining that both of these jurisdictions have decided cases in a

mannerthatmakestheoutcomeoffuturelitigationpredictableandconsistent).
149McEvoy,supranote17.