Law & Medicine

Failure to warn or report


 

References

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”4 There is, however, no legal requirement to deliver a “mini-course in medical science.”5

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.6 The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.

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