Physician responsibility in prescribing

August 1, 2007

Dr. Comfort is a practicing dermatologist in a large U.S. city, and he prides himself on making patients extraordinarily comfortable during and after surgical procedures.

Several months ago, the physician performed an excision of an atypical nevus on a 21-year-old woman. There were no difficulties with either the procedure or the postoperative recovery. To lessen postoperative pain, Dr. Comfort prescribed potent painkillers and warned his patient about not driving after taking the medicine.

Painful party

A friend asked if she had any medication to lessen the pain from a recent car accident. The patient provided her with four painkillers. The friend soon thereafter gave two of the pills to her boyfriend, who wanted to take them with a variety of alcoholic beverages solely for recreational purposes. The couple left the party two hours later; the boyfriend was found dead the next morning.

Autopsy findings concluded that death was caused by a potent interaction between a combination of alcohol and the painkiller. The estate of the decedent brought a wrongful death action against a host of parties - among them, Dr. Comfort.

The suit against Dr. Comfort alleges that the dermatologist should have warned his patient about the interaction between painkillers and alcohol. Furthermore, the suit alleges that it should have been reasonably foreseeable to the physician that a patient would give the painkillers to a friend, which could lead to the death of an individual who combined the alcohol with painkillers.

Dr. Comfort is aghast. It isn't enough that his medical malpractice policy won't pay for a wrongful death action; if convicted, he may go to prison. Should he be worried?

A peevish precedent

A recent Arizona case dealt with a somewhat similar scenario.

This case did establish that individuals who are prescribed medications do owe a duty of care when they improperly give these substances to another individual. In that case, an individual attended a holiday party. A coworker and the coworker's boyfriend were also there. All of the partygoers drank heavily. The coworker asked for and was given several oxycodone pills (originally prescribed for back pain) for recreational use. She then gave several pills to her boyfriend. The worker to whom the oxycodone pills had originally been prescribed had been warned by his physician about potential problems when such narcotics are combined with alcohol. He, however, did not, in turn, warn his coworker, who then did not warn her boyfriend. The boyfriend was found dead the next morning. Autopsy findings revealed the cause of death to be a combination of narcotics and alcohol.

The estate sued the original individual who provided the pills to his friend, who gave them to her boyfriend. The allegation was that he should have provided his coworker with the same warning that was provided to him, and if such a warning was not provided, it was reasonably foreseeable that the coworker would provide the pills to another individual who would combine the pills with alcohol intake. The court agreed.

The court noted that "duty" is an obligation recognized by law that requires an individual to conform to a particular standard of conduct to protect other individuals against unreasonable risk of harm. The court found that such a duty could exist between two friends or coworkers and recognized the foreseeability of one friend providing the other with pills.

Although the court recognized that every lawsuit is case-specific, Dr. Comfort would have been wise to provide such a warning to his patient. In the Arizona case, suit was not brought against the prescribing physician because such a warning had been provided. Dr. Comfort may not be so lucky.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.