Many people tell us that the pursuit of money is not a worthy goal. Perhaps the “philosopher” Woody Allen summed up the way that many of us feel about money, “Money is better than poverty, if only for financial reasons.”
A common perception about lawyers is that they will do anything to obtain money. Many have made fun of some lawyers as “ambulance chasers” and found their billboards or television commercials in poor taste. Is there another profession that requires seven or more years of higher education and passing a rigorous and often very difficult exam before you can be licensed that is held in such low regard?
However, you and I may eventually owe our safety as we drive down the road to the “greed” of these lawyers.
Many of us have heard the word “tort”. If you are not familiar with the legal system, you might get an image of a pastry dish usually filled with cream, but that is a “torte”.
A tort is a legal term that describes when a person, deliberately or through carelessness, harms or causes loss to someone or to their property. Torts are tried in civil law courts. A crime is where someone has done something that is a violation of law—like armed robbery or murder. Crimes are tried in criminal law courts.
A tort is normally not a crime but a civil law matter. In the case of O.J. Simpson, however, even though he was not convicted in his murder trial in criminal court, he was sued by Nicole Simpson’s family in civil court and ordered to pay millions of dollars because of the harm the civil jury decided he caused.
If someone is found guilty of a tort, they are normally required to pay money to make up the damage that their actions caused. On television we are bombarded with ads for lawyers who will sue on your behalf if you are injured in an automobile accident, and the implication is that you can profit from your injuries.
THE TORT, DRUG COMPANIES AND DOCTORS
How does tort law apply to drug companies and doctors? In most states, if a drug company discloses the potential harm that might be caused by a drug—hence the long labels in tiny print–they are not liable if you incur injury from taking their drug. Drug companies have only been held liable for concealing knowledge of deaths or injury caused by their drugs if their disclosures were not complete.
Because many people are treated correctly but die anyway or continue to have medical problems, doctors have tort liability only if they acted negligently or in a manner inconsistent with the standards of treatment in their community.
This applies to prescribing drugs. A doctor has the responsibility to understand the potential benefits and risks of a drug and may prescribe any drug to a patient even if the proposed use of the drug was not approved by the FDA when the drug was authorized. For example, a pill like Paxil, which is approved by the FDA for depression, can be prescribed by the doctor for weight loss even though there is no evidence that this drug would assist in weight loss nor are there studies showing what the side effects might be if used in this manner.
Of course, if the doctor is negligent in his treatment or doesn’t prescribe treatment in the manner used by other doctors in his community, the doctor will have tort liability. However, it is generally not enough to just show that a drug or combination of drugs harmed a patient to establish financial liability for the doctor. This makes it very hard for someone harmed by drugs to recover any financial damages—unless the doctor really acted recklessly.
One of the areas of liability that doctors do have is when they have not obtained the informed consent of their patients prior to prescribing medical treatment.
Since most of us don’t have sufficient information about the available types of medical treatment available, all states require a doctor to obtain the patient’s consent prior to medical treatment, and the consent must be granted only after the patient is properly informed. The most famous description of informed consent is a quote from Justice Benjamin Cardozo who, in 1914, stated that: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” (Schloendorff v Society of New York Hospital, 105 N.E. 92 (N.Y., 1914).
While hospitals are normally very careful about getting patients to sign consent forms before surgery, many doctors are prescribing potentially life-endangering drugs but not providing their patients with adequate information to obtain informed consent. At Novus Medical Detox Center, one complaint that we often hear from our patients is that no one told them that the prescription drugs they were taking were dangerous or addictive.
If other courts follow the ruling in Massachusetts discussed below, doctors may be forced to give real information and warn their patients about these side effects, or they may be sued and become liable for money damages if their patients drive while under the effects of a medication and harm others.
DRUGS THAT IMPAIR
All of us are familiar with the laws against driving under the influence of alcohol. We also know that it is illegal to drive under the influence of illegal drugs like heroin or cocaine.
A West Virginia study analyzed the blood of drivers involved in fatal accidents. Unlike many states, this study also tested for the presence of prescription drugs in addition to alcohol and illegal drugs. The study concluded that, of the drivers involved in fatal accidents, more were taking prescription drugs than illegal drugs.
Unfortunately, most other states do not routinely test for prescription drugs, but why should West Virginia be different than the other states? Should we not take seriously the strong warnings contained on the drug labels about operating heavy machinery or driving cars while taking these drugs? Doesn’t it defy common sense to think that these drugs will not impair one’s ability to drive?
Many if not most of us were never warned by our doctor that the prescription drugs that we were being given could impair our ability to drive just as much or maybe even more than alcohol or illegal drugs. However, we are legally responsible if our impaired ability is a factor in causing an accident. This is a tort and we almost certainly will be sued.
This is particularly disturbing when you realize that a significant number of the people driving on the road are taking drugs that routinely cause drowsiness and impaired reaction times.
DUTY TO WARN
In Coombes v. Florio, 450 Mass. 182, 877 N.E.2d 567 (2007), the parents of a ten-year-old boy who was killed by 75-year-old Mr. Sacca, a patient of Dr. Florio, sued Dr. Florio for failing to warn Mr. Sacca about the side effects of taking Oxycodone, Zaroxolyn, Prednisone, Flomax, potassium, Paxil, Oxazepam, and Furosemide—all prescribed by Dr. Florio. Potential side effects of the drugs include drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. Mr. Sacca lost consciousness just before his car left the road and hit and killed the Coombes’ boy who was walking on the sidewalk.
Speaking for the majority, Justice Ireland of the Massachusetts Supreme Judicial Court stated, “I conclude that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient.”
The Coombes’ case against Dr. Florio will now be tried in front of a jury who will determine if Dr. Florio has any liability to the parents of the young man killed by Mr. Sacca.
Massachusetts joins Washington, Maine and Hawaii in requiring doctors to actually warn their patients to whom they are prescribing these dangerous drugs about the potential dangers of driving while taking these drugs.
WHAT IS NEXT?
Some complain that imposing a duty to warn their patients about the dangerous side effects of these drugs is just another burden on doctors. Don’t doctors already have the responsibility to provide us with all the needed information about these drugs? How difficult will it be for doctors to have papers signed that their patients understand that taking the recommended drugs may seriously impair their ability to drive? Some doctors may actually tell their patients that they can’t drive for a week or more until the doctor is comfortable that the drugs will not adversely affect the patient’s driving skills.
The drug companies are very upset. They rightly see this warning requirement not as keeping us safe on the highways but as a direct attack on their sales and profits—the only thing about which they seem to care. If faced with the prospect of not driving while taking their drugs or risking being treated like a drunk driver if pulled over by the police, the drug companies know that more and more people will demand that their doctors find alternative ways of treating the cause of the patient’s complaints. Many of these alternative ways will not involve their high-priced drugs.
By treating the cause of the medical problem, the biggest fear of the drug companies may start to happen—people might actually be cured and no longer have to take their drugs.