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March 15, 2016

New York Court of Appeals Expands Medical Provider's Duty to Third-Parties (or Does It?)

The December 16, 2015, New York Court of Appeals decision, Davis v South Nassau Communities Hosp., 2015 N.Y. Slip Op 09229 (2015) could be viewed as a dangerous expansion of the duty of medical providers to third persons. Specifically, the Court held that "where a medical provider has administered to a patient medication that impairs or could impair the patient's ability to safely operate an automobile, the medical provider has a duty to third parties to warn the patient of that danger."

In Davis, Defendants administrated an opioid narcotic painkiller to a patient in a hospital emergency room. The patient was discharged from the hospital ninety minutes later and drove herself away from the facility. The patient was involved in a motor vehicle collision, crossing a double yellow line and colliding with a bus driven by one of the Plaintiffs.

Plaintiffs alleged that the collision occurred while the patient was under the influence of the pain killer. Plaintiffs also alleged that the medical providers did not warn the patient that the painkiller impaired her ability to operate a car safely.

Defendants claimed that they owed no duty to the Plaintiffs. The Supreme Court granted Defendants' motion to dismiss. The Appellate Division, Second Judicial Department, affirmed. On appeal, the Court of Appeals examined whether Defendants owed a duty to Plaintiffs to warn the patient that the medication could have impaired her ability to operate a motor vehicle safely.

The Court explained that while it was reluctant to expand the existing duty of care to non-patients, the facts supported an expansion of the traditional duty to the patient because the harm resulted from the care the Defendants rendered and the Defendants were in the best position to properly warn the patient. The Court noted support in its prior precedent for its decision that medical providers can have a duty, in limited circumstances, to non-patients. Specifically, the Court cited to Tenuto v. Lederle Lab., 90 N.Y.2d 606 (1997), wherein the Court determined that a doctor had a duty to warn the father of an infant, provided a polio vaccination by the doctor, of the father's personal health risks from the vaccination of his daughter.

The Court noted that the expanded duty imposed no additional obligations on a physician who administers medication. Rather, it merely extended the scope of persons to whom the physician may be responsible for failing to fulfill the responsibility. The Court was also careful to note that there was no duty to prevent the patient from leaving the hospital but only to warn the patient of the effects of the medication. Finally, The Court cautioned that its decision should not be "construed as an erosion of the prevailing principle that courts should proceed cautiously and carefully in recognizing a duty of care."

While the majority downplayed the significance of the decision, and tried to characterize it as a clarification of existing precedent, the dissent was concerned with further expansion of liability. As the dissent noted, "a physician can arguably now be held liable, not just where a medication impairs driving ability due to its impact on a patient's state of wakefulness, but also where a medication causes any other physical malady, for example, a severe stomach ache that distracts a driver or a rash of itchiness that causes a driver to release the steering wheel and lose control."

Whether the duty to the public is limited to a narrow class of failure to warn claims, or will be expanded to the limits warned by the dissent, remains to be decided. However, it is clear that providers who fail to warn a patient about the potential side effects of medications that are administered may be held liable to third parties harmed by the patient as a result of the side-effects. Accordingly, providers should ensure that patients are warned about the side effects of medication they provide, particularly if they include impairment of the ability to operate a motor vehicle or machinery. It goes without saying that the warning should be clearly documented in the hospital record and preferably signed by the patient.

If you require further information regarding the content of this alert, please contact Dennis R. McCoy, Chair of our Professional Liability Practice Area, at (716) 566-1560 or


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