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Acknowledging Foreseeable

Consequences: Medina v. Hochberg and


Limiting Physicians Duties to
Nonpatients
COMMENT

SUZANNE DONNELLY*

INTRODUCTION
Who bears the risk of injury when the driver of a vehicle suffering from
a known seizure disorder gets into a collision: the driver who was unable to
control the car, the injured third party, or the doctor who knew of the
seizures but never warned the patient of the inherent risks?1 The
Massachusetts Supreme Judicial Court (SJC) answered all of these questions
in its recent decision, Medina v. Hochberg.2 There, the Court held that a
physician owes no duty to a nonpatient third party to warn his patient not
to drive due to risks associated with the patients health condition.3 Medina
clarified the prior confusion among Massachusetts courts regarding the duty
imposed on a physician to unrelated third parties and narrowed the scope
of the Courts earlier holding in Coombes v. Florio, which established a
physicians duty to nonpatient third parties when the physician has

* Candidate for Juris Doctor, New England Law | Boston (2015). M.A., History, Fordham
University (2006). B.A., American Studies and History, Fordham University (2005). I would like
to thank my husband, Tom, and my parents, Dan and Marie, for their unwavering support
throughout law school and in all of my endeavors.
1

See generally Medina v. Hochberg (Medina II), 987 N.E.2d 1206, 1208 (Mass. 2013) (holding
that a physician owes no duty to a third person under ordinary negligence principles or as a
result of a purported special relationship).
2
3

See id.
See id.

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prescribed medication to the patient.4 Policy, rather than precedent,


ultimately fueled the SJCs decision-making process and led to the cases
outcome.5 The SJC was correct in its conclusion in Medina, but the Court
should have utilized a more equitable method in ascertaining whether a
physician should have a duty to a nonpatient third party, so plaintiffs with
meritorious claims will not be automatically foreclosed from pursuing
them.6 This Comment argues that although the SJC was correct in its
holding, it should have employed a more flexible method evaluating the
foreseeability of the harm to the injured party in determining the existence
of a duty rather than precluding all plaintiffs in similar circumstances from
engaging in a lawsuit.
I.

Background
A. Negligence

Negligence, an important principle in tort law, consists of four elements:


duty, breach of duty, an injury or damage, and a causal relationship between
the breach of duty and the injury.7 The latter three elements are traditionally
questions of fact, but the first element, the existence of a duty, is a question
of law that is decided by reference to existing social values and customs
and appropriate social policy.8 Generally, courts have recognized that any
individual who performs an affirmative act must exercise the care that a
reasonable individual would exercise in that circumstance in order to avoid
harm to others.9 The duties of one who fails to act are more limited, and these
instances are mainly restricted to situations in which there is some special
relationship between the individual who failed to act and the other party
the special relationship is what establishes the duty. 10 Negligence requires
both a foreseeable risk of harm to another, meaning it is reasonably
anticipated,11 and behavior that is unreasonable in relation to that risk.12 The

See id.
See id. at 120913.
6 See, e.g., Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) (establishing a three-part balancing
test to determine whether a physician should owe a duty to a nonpatient third party).
5

37 MASS. PRAC. TORT LAW 11.1 (3d. ed. 2009).


Cremins v. Clancy, 612 N.E.2d 1183, 1185 (Mass. 1993).
9 See RESTATEMENT (SECOND) OF TORTS 302(a) (1965).
10 See id; see also Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 349 (Cal. 1976).
11 See BLACKS LAW DICTIONARY 676 (8th ed. 2004); see also McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn. 1995).
12 STEVEN PEGALIS, 1 AMERICAN LAW OF MEDICAL MALPRACTICE 3:16 (3d ed. 2014), available
at Westlaw ALMM (referring to Palsgraf v. Long Island R. Co., 162 N.E. 99 (N.Y. 1928)).
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specific harm does not need to be foreseeable, but the injury that resulted
from the negligent conduct must have been likely to occur.13
B. A Physicians Duty
Foreseeability is important for physicians due to their inherent
relationship with their patients.14 A physician owes a legal duty to a patient
to provide medical treatment that meets the standard of care of the average
qualified physician in his or her area of specialty.15 In some cases, this
standard of care may require a physician to warn a patient of the risks
associated with the patients treatment.16 Most jurisdictions view a
physicians failure to warn a patient not to drive while on particular
prescription medication as a valid cause of action. 17 Courts have held that a
physician negligently puts the safety of both his own patient and nonpatient
third parties at risk in failing to issue this warning in these situations.18 In
issuing a warning to the patient, a physician satisfies his duty to ensure the
safety of both the patient and the general public.19
Many courts, though, have refused to extend a physicians duty to
encompass potential effects on nonpatients where the physician has not
acted affirmatively.20 Courts often hesitate to broaden a physicians duty of
care to include nonpatients because of the danger of increased litigation21
and the potential conflict between the physicians duties to his patient and
potential duties to third parties.22 While many courts refuse to impose a duty
altogether, others take a more flexible, fact-driven approach in evaluating
whether a physician has such a duty. 23 Webb v. Jarvis illustrates this more

13 Id.; see, e.g., Palsgraf, 162 N.E. at 100 (describing that in a negligence action, the risk posed
must be within the range of apprehension).
14 See Amended Brief for Plaintiff-Appellant at 13, 16, Medina II, 987 N.E.2d 1206 (Mass. 2013)
(No. SJC-11178) (explaining that a duty should be imposed on physicians when it arises through
a special relationship with a patient and when the risk of harm is foreseeable).
15 Medina II, 987 N.E.2d at 120910 (citing Brune v. Belinkoff, 235 N.E.2d 793, 798 (Mass.
1968)); see also DAN DOBBS, DOBBS LAW OF TORTS 242 (2000).
16 Vasa v. Compass Medical P.C., 921 N.E.2d 963, 96566 (Mass. 2010).
17 See GREGORY G. SARNO, 43 AMERICAN JURISPRUDENCE PROOF OF FACTS 12 (rev. 2d. ed.
Supp. 2013).
18

See Burroughs v. Magee, 118 S.W.3d 323, 332 (Tenn. 2003).


See id. at 333 (noting a physician already owes a duty to warn patients about a medications
side effects and imposing this duty may prevent considerable harm to third parties).
19

20

See, e.g., Medina II, 987 N.E.2d at 1212.


J.D. LEE & BARRY LINDAHL, MODERN TORT LAW: LIABILITY AND LITIGATION 25:4 (2d. ed.
2010), available at Westlaw MTLLL.
22 See, e.g., Jarmie v. Troncale, 50 A.3d 802, 81516 (Conn. 2012).
23 Compare Medina II, 987 N.E.2d at 123 (holding a physician does not owe a duty to third
parties to warn patients of medications effects on underlying health conditions), with McCall
21

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accommodating approach.24 In Webb, a physician overprescribed steroids to


an individual who became enraged and harmed the defendant. 25 The
Indiana Supreme Court created a three-factor balancing test to determine
whether a duty should be imposed, evaluating: the parties relationship, the
foreseeability of the victim and the resulting injury, and public policy
considerations.26
II. Medina v. Hochberg
A. Facts
Medina v. Hochberg is the latest SJC case defining physicians duties to
nonpatient third parties.27 On December 10, 2001, Robert Riskind, M.D.,
(Riskind) was driving home from work when he struck Richard Medina
(Medina) as he exited his parked car.28 Medina sustained serious injuries,
requiring multiple surgeries to a broken right arm, and he was unable to
work until October 2002.29 The accident occurred because Riskind
experienced a seizure due to an inoperable brain tumor. 30
Riskinds brain tumor was diagnosed in September 2000 when he
experienced a grand mal seizure.31 Riskind began treatment with neurologist
Dr. Fred Hochberg (Hochberg), visiting Hochberg monthly from November
2000 to April 2002.32 Hochberg devised a comprehensive treatment plan and
instructed Riskind not to drive for six months after his first grand mal
seizure.33 In January 2001, Hochberg wrote a letter to Riskind informing him
that he could drive and resume normal activities. 34 Riskind began driving
again in March 2001, and Hochberg did not give Riskind any related

v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995) (noting several factors that should be considered to
determine whether or not a duty should be imposed on physicians).
24 See 575 N.E.2d at 995; see also McCall, 913 S.W.2d at 153 (adopting a similar balancing test,
which considered several factors, one of which was the foreseeable probability of the harm of
injury occurring); Cherie N. Wyatt, Comment, Driving on the Center Line: Missouri Physicianss
Potential Liability to Third Persons for Failing to Warn of Medication Side Effects, 46 ST. LOUIS U. L.J.
873, 89091 (2002) (describing Missouris adoption of a six-factor policy analysis to determine a
physicians duty).
25

Webb, 575 N.E.2d at 994.


Id. at 995.
27 See 987 N.E.2d at 120910.
28 Medina v. Pillemer (Medina I), 29 Mass. L. Rptr. 326, 326 (Suffolk Super. Ct. 2011).
29 Id. at 32627.
30 Id. at 327.
31 Id.
32 Id.
33 Id.
34 Medina I, 29 Mass. L. Rptr. at 327.
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warnings or instructions.35 The accident occurred on December 10, 2001;


Riskind reportedly lost control and could not get [his] limbs to do what was
needed . . . . No one saw an immediate seizure but he had trouble leaving
his own car, was not responding to the police and was dazed. After leaving
the car he had a seizure.36 Riskinds health subsequently deteriorated and
he died in June 2002.37
B. Procedural History
On April 14, 2005, Medina amended his original complaint against
Riskinds estate, adding Hochberg as a defendant in another negligence
claim.38 He alleged that Hochberg was negligent in failing to order, advise,
caution, warn, and instruct his patient . . . not to operate a motor vehicle due
to the foreseeable risk to innocent bystanders39 and had a duty to third
persons who could foreseeably be harmed by that negligence. 40 On
December 23, 2005, the Superior Court of Massachusetts decided that
Medinas amended complaint was viable.41 Further, the court stated that
Dr. Hochberg owed a duty to the public, arising from his physician-patient
relationship with Riskind, to warn Riskind not to drive.42 Hochberg moved
for summary judgment on Medinas claim, asserting that he had no legal
duty to Medina stemming from his physician-patient relationship with
Riskind.43
C. Reasoning and Holding
The Superior Court admitted that although a trial judge should hesitate
to undo her own or another judges work, this court may reconsider an issue
of law until a final judgment is entered.44 The court reasoned that as a result
of recently evolving law, which specifically addressed a physicians duty to
a third party, the court was required to reconsider this issue in light of these
developments.45 While the Superior Court originally believed that a special
relationship existed between Hochberg and Riskind, the SJC concluded in
previous cases that there was no special relationship between a physician

35

Id.
Id. at 326, 328.
37 Medina II, 987 N.E.2d 1206, 1207 (Mass. 2013).
38 Medina I, 29 Mass. L. Rptr. at 328.
39 Id.
40 Id.
41 Id.
42 Id.
43 Id. at 329.
44 Medina I, 29 Mass. L. Rptr. at 329.
45 Id.
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and a patient giving rise to such a duty.46 Therefore, the Superior Court
determined that Hochbergs duty did not extend to Medina through
Riskind.47
On appeal, the SJC affirmed the lower courts decision, concluding that
a physician owes no duty to a third party as a result of a purported special
relationship between the physician and his patient.48 Further, Hochberg did
not owe a duty of care to Medina under ordinary negligence principles.49
The Court also declined to extend a narrow rule promulgated in a prior case
that a physician owes a limited duty to third parties to warn patients of
known side effects of medications prescribed by that physician. 50
Regarding ordinary negligence principles, the SJC asserted that the duty
Medina requested from Hochberg was far broader than the Court was
willing to impose.51 The SJC distinguished prior precedents because Medina
dealt with a naturally-occurring brain tumornot the act of prescribing
medication.52 The Court cautioned that if a duty was imposed in Medina,
physicians would have to warn patients about the dangers associated with
driving based on any number of preexisting health conditions.53 This would
impose a duty on physicians to warn the general public about the effects of
a multitude of medical conditions, not any act of the physician. 54
The SJC then discussed, at length, various policy implications of
extending liability to physicians such as Hochberg. 55 While Medina asserted
that imposing a duty would enhance public safety, the Court believed this
duty would have a detrimental effect on the physician-patient relationship:
the physician would be more concerned with potential litigation than his
patient.56 The Court also noted that litigiousness against physicians by third
parties would further burden an already struggling health care system. 57
Lastly, the Court commented that patients privacy and confidentiality,
which should always be protected, would be threatened with this increase
in litigation upon the release of personal medical records during discovery. 58

46

Id. at 331.
Id. at 330.
48 Medina II, 987 N.E.2d 1206, 1208 (Mass. 2013).
49 Id.
50 Id.
51 Id. at 121112.
52 Id. at 1212.
53 Id.
54 Jarmie v. Troncale, 50 A.3d 802, 825 (Conn. 2012).
55 Medina II, 987 N.E.2d at 121213.
56 Id. at 1213.
57 Id.
58 Id. (citing Coombes v. Florio, 877 N.E.2d 567, 588 (Mass. 2007)).
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For these reasons, the SJC declined to expand the Coombes holding and
determined that Hochberg was entitled to summary judgment.59

ANALYSIS
III. Medina Was Correctly Decided Because It Aligns Closely with
Recent Trends in Other Jurisdictions
As evident in Massachusetts case law,60 the jurisprudence regarding this
issue is decidedly mixed.61 However, the recently emerging trend among
other jurisdictions is that a physician owes a limited duty to third parties
only in very specific instances, and the SJCs decision in Medina reflects this
notion.62 These circumstances are usually confined to situations involving
special relationships between mental health providers and patients, but
courts have also found liability when physicians have a duty with respect to
contagious diseases and identifiable third parties.63 Additionally, the SJC
and other courts have acknowledged instances of limited physician liability
when the physician has taken some affirmative act with respect to his
patient, such as administering or prescribing medication to a patient which
results in a third-party injury.64 Absent these exceptional circumstances,
however, courts have been reluctant to impose a duty on physicians to
nonpatient third parties because the consequential litigation would be
conceivably limitless.65
Justice Cordys reining in of a physicians duty in Medina exemplifies the
current trend in medical malpractice jurisprudence, and other jurisdictions

59

Id.
Compare Leavitt v. Brockton Hospital, Inc., 907 N.E.2d 213, 219 (Mass. 2009) (holding that
a hospital was not negligent for releasing a medicated patient who injured a police officer
during a vehicular collision because the accident fell outside the scope of foreseeable risk), and
Cottam v. CVS Pharmacy, 764 N.E.2d 814, 821 (Mass. 2002) (holding that a pharmacy has no
duty to warn a customer of the potential side effects of the prescription drug it provides if the
pharmacy has no specific knowledge of an increased danger to a particular customer), with
Coombes v. Florio, 877 N.E.2d 567, 575 (Mass. 2007) (discussing that a physician owes a duty of
reasonable care to everyone foreseeably put at risk by the physicians failure to warn of the side
effects of his or her treatment of a patient).
61 Compare Jarmie v. Troncale, 50 A.3d 802, 828 (Conn. 2012) (concluding that the physician
owed no duty to warn his patient of potential driving impairments resulting from his medical
condition), with Duvall v. Goldin, 362 N.W.2d 275, 279 (Mich. Ct. App. 1984) (holding that
physician had a duty to inform his epileptic patient not to operate a motor vehicle).
62 See Jarmie, 50 A.3d at 825; Medina II, 987 N.E.2d at 1213.
63 LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 305 (2d ed. 2008).
64 E.g., Coombes, 877 N.E.2d at 575.
65 See Kathryn J. Schwartz, Coombes v. Florio: The Negative Consequences of Leaving
Massachusetts Physicians Open to Endless Third-Party Liability, 45 NEW ENG. L. REV. 777, 780 (2011).
60

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have reached similar conclusions in like circumstances. 66 Medina required no


duty on the part of the physician because, as the SJC noted, there was no
affirmative act.67 Rather, the patients naturally-occurring brain tumor had
unpredictable symptoms which manifested on the day of the collision, and
these symptoms resulted in the patients loss of consciousness.68
Consequently, Medina did not fall within the narrow Coombes exception.69
Uniformity across jurisdictions regarding this legal issue is important
for the same reasons that Medina is an important case within Massachusetts:
it clarifies a previously gray area of the law and provides a reliable legal
standard for physicians.70 Today, due to this growing trend to protect
physicians, medical providers have the ability to better understand where
their liability may lie and what they must do in order to protect themselves.71
The overwhelming public policy considerations also make Medina and the
cross-jurisdictional pattern narrowing the scope of a physicians duty a
positive thing, and they are discussed in Part V of this Comment. 72
IV. The SJC Should Use a Balancing Test Incorporating Foreseeability to
Decide the Existence of a Duty of Care
The SJC clarified any confusion that resulted from a fractured court in
prior cases and solidified precedent regarding a physicians liability to
nonpatients by establishing a firm, seemingly bright-line rule that absent an
extremely narrow exception, a physician will not be held accountable to
third parties and only owes a duty to his or her own patient. 73 A hard and
fast rule is beneficial because it leads to predictable outcomes and
automatically precludes certain plaintiffs from bringing suit, which is
efficient for courts as well as parties. 74 However, one must consider the effect

66

See supra text accompanying notes 5159; see also Schmidt v. Mahoney, 659 N.W.2d 552,
55556 (Iowa 2003) (citing to public policy reasons in refusing to extend a physicians duty in
order to protect the general public from one who has a naturally-occurring disorder); Praesel v.
Johnson, 967 S.W.2d 391, 398 (Tex. 1998) (noting that though the benefit of warning an epileptic
patient not to drive is incremental, the consequences of imposing a duty are great).
67

Medina II, 987 N.E.2d at 1212.


Id.
69 Id. at 121213.
70 See Sayana Thomas et al., Current Practices of Driving Restriction Implementation for Patients
with Brain Tumors, 103 J. NEUROONCOLOGY 641, 641 (2011).
71 See id.
72 See Medina II, 987 N.E.2d at 121213; infra Part V.
73 See Medina II, 987 N.E.2d at 1208.
74 Cf. id. at 120910 (describing different circumstances in which physicians owe duties to
their patients).
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a bright-line rule will have on an innocent third party who has been injured
and is seeking redress.75
The SJC should have taken a more equitable approach rather than using
the rigid rule it imposed in Medina.76 Simply because a solution is costeffective and efficient does not necessarily mean that it is the best or most
just solution.77 Adopting a balancing test similar to that in Webb v. Jarvis,78
the SJC should have considered the foreseeability of harm to the injured
party in addition to analyses of the parties relationship and public policy
concerns.79
In applying the Webb test, the SJC likely would have come to the same
conclusion; however, the methodology utilized may potentially have more
just results in other situations.80 Using these three factors requires a court to
fully consider all the facts in any given case, making it more likely that
relevant subtleties are appropriately exposed, addressed, and analyzed. 81
The SJCs limited decision in Medina highlights this shortcoming.82 In
Medina, the SJC focused on Webbs first and third prongsthe parties
relationship and public policy concernsbut it failed to discuss
foreseeability, which is a crucial part of the analysis.83 Without analyzing this
important factor, future cases with an even more persuasive foreseeability
element will be summarily dismissed.84
The SJC all but ignored the issue of foreseeability in Medina, which
should have been a critical factor.85 Assessing the foreseeability element

75 Cf. id. at 1208 (granting a summary judgment motion against an innocent third partys
negligence claim, arising from a car accident caused by a neurologists patients seizure).
76 See id. at 1213 (holding a physician does not owe a duty to warn nonpatients and thus
Hochberg was entitled to summary judgment).
77 Contra Jarmie v. Troncale, 50 A.3d 802, 82223 (Conn. 2012) (refusing to recognize a duty
in this type of circumstance because it would open the door to an entirely new category of
claims . . . thereby greatly expanding the liability of health care providers and creating an
additional burden on the courts).
78

575 N.E.2d 992, 99597 (Ind. 1991).


Cram v. Howell, 680 N.E.2d 1096, 1097 (Ind. 1997) (quoting the Webb balancing test).
80 See, e.g., Duvall v. Goldin, 362 N.W.2d 275, 279 (Mich. Ct. App. 1984) (noting that the
patients epilepsy was sufficiently serious such that it was foreseeable that the patient would
seize while driving).
81 See Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2003).
82 See Medina II, 987 N.E.2d 1206, 121013 (Mass. 2013).
83 See id.
84 Cf. id. (analyzing the negligence claim without discussing foreseeability).
85 See Jarmie v. Troncale, 50 A.3d 802, 811 (Conn. 2012) (analyzing foreseeability under a
classic duty analysis). Compare Medina II, 987 N.E.2d at 1211 (explaining its analysis in terms
of ordinary negligence principles but failing to discuss foreseeability), with Coombes v. Florio,
877 N.E.2d 567, 573 (Mass. 2007) (noting that the Court was left to determine whether or not the
alleged negligence was foreseeable).
79

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allows for a flexible approach and a fact-specific inquiry that promotes


fairness to each individual plaintiff who seeks damages. 86 The Court should
certainly approach foreseeability with a critical eye to prevent frivolous
lawsuits from moving forward, but it should also, at the very least, consider
this element to acknowledge and properly address the merits to the
plaintiffs claim.87
Blacks Law Dictionary defines foreseeability as [t]he quality of being
reasonably anticipatable.88 Reasonable is defined as as fair, proper, or
moderate under the circumstances.89 Foreseeabilityan event that one
could reasonably expect to occuris thus a modest standard to meet.90 The
Webb court noted that the [i]mposition of a duty is limited to those instances
where a reasonably foreseeable victim is injured by a reasonably foreseeable
harm.91 The court then examine[d] what forces and human conduct should
have appeared likely to come on the scene and weigh[ed] the dangers
likely to flow from the challenged conduct in light of [those] forces and
conduct.92 Adopting Webbs three-part test allows a court to narrow the
realm of foreseeability as it sees fit.93 The court is not required to accept
anything as foreseeable; rather, it can limit liability to only foreseeable
versus unforeseeable harm, or only foreseeable victims.94
In Medina, a strong argument can be made that the harm was
foreseeable.95 Riskind suffered from an inoperable brain tumor, experienced
a recent grand mal seizure, was on medication for this condition, and
continued to suffer from localized seizures multiple times per day until his
second grand mal seizure, which prompted the accident. 96 An outsider to the
legal and medical professions could certainly expect an individual with this
medical history to be prohibited from operating a motor vehicle, as the
person poses a threat to other motorists.97

86 See generally Webb v. Jarvis, 575 N.E.2d 992, 99598 (Ind. 1991) (utilizing a balancing test
that includes foreseeability in order to discern whether a duty should be imposed).
87

See id.
BLACKS LAW DICTIONARY, supra note 11, at 676.
89 Id. at 1293.
90 See id. at 676, 1293.
91 Webb, 575 N.E.2d at 997.
92 Id. (citing 3 FOWLER V. HARPER, FLEMING JAMES, & OSCAR S. GRAY, THE LAW OF TORTS
18.2 (2d ed. 1986)).
88

93

See id.
Id.
95 See Medina I, 29 Mass. L. Rptr. 326, 327 (Suffolk Super. Ct. 2011) (discussing the patients
health condition producing persistent sensory seizures, arm/shoulder stiffness, and shortness
of breath).
94

96
97

Id.
See id. at 32728.

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Yet, another observer could counter that the accident was completely
unforeseeable.98 In Medina, neither the Court nor the defendant believed that
Riskinds second grand mal seizure was foreseeable or probable, because he
only experienced one grand mal seizure prior to the collision and had been
asymptomatic of these extreme seizures for well over a year. 99 Since
Riskinds brain tumor was a naturally occurring condition, the Court opined
that Hochberg had no control over its trajectory and could only monitor his
patients progress and advise him accordingly.100
Courts and physicians, despite their more specialized knowledge, are
also somewhat conflicted about this issue.101 Though courts seemingly lean
more toward precluding physicians liability because of policy concerns,
many physicians are unsure how to best advise patients, particularly in the
absence of formalized national guidelines or recommendations for driving
restrictions for patients with brain tumors.102 The physician must use his or
her best judgment and act as a reasonably prudent physician would act in
the same or similar circumstances; this discretionary, fact-specific inquiry
remains open to interpretation.103
Differing interpretations as to whether or not Medina was a foreseeable
victim are also likely.104 Medina is a member of the general public and had
no connection or relationship to Riskind or Hochberg; his involvement in the
accident may have been purely coincidental.105 Though one could interpret
this concept more broadly by asserting that any victim in this situation is
within a class of victims to whom the risk of harm is foreseeable106 due to the
likelihood of an accident occurring, this liberal reading is unlikely to
succeed.107 Thus, while the accident and resulting injury could potentially be
considered foreseeable due to Riskinds medical history, it would be difficult
to prove that Medina specifically was a foreseeable victim. 108

98

See id. at 327 (noting that the patients condition seemed under good control and that he
had been seizure free for an extended period of time).
99

See id. at 32728.


See Medina II, 987 N.E.2d 1206, 1212 (Mass. 2013).
101 See Thomas, supra note 70.
102 See id.
103 See 51 MASSACHUSETTS PRACTICE, PROFESSIONAL MALPRACTICE 10.11 (2013).
104 See Amended Brief for Plaintiff-Appellant, supra note 14, at 14; Medina I, 29 Mass. L. Rptr.
at 331.
105 See Medina I, 29 Mass. L. Rptr. at 331 (noting that Hochberg accepted Riskind as a patient
should not impose on Hochberg a duty to an unlimited number of people with whom he has
no relationship).
100

106

Amended Brief for Plaintiff-Appellant, supra note 14, at 16.


See Medina II, 987 N.E.2d 1206, 1212 (Mass. 2013); see also Webb v. Jarvis, 575 N.E.2d 992,
998 (Ind. 1991) (Dickson, J., concurring).
108 See Brief of Defendant-Appellee at 2326, Medina II, 987 N.E.2d 1206 (Mass. 2013) (No.
SJC-11178).
107

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It was within the SJCs discretion to determine, based on the evidence,


whether the injury to Medina was foreseeable and whether Hochberg had a
duty to warn his patient.109 The Court, however, failed to consider
foreseeability when reaching its conclusion that Hochberg owed no duty to
Medina.110 This is a disservice to Medina and to other similarly situated
Massachusetts plaintiffs in the future because their lawsuitswhich could
turn on the issue of foreseeabilitywill never have the opportunity to reach
that crucial point of analysis.111
V. Ultimately, Medina is Correct for Public Policy Reasons
A. Physician-Patient Relationship
One substantial policy concern addressed in Medina is the importance of
preserving the sanctity of the physician-patient relationship.112 The
physician-patient relationship is a highly personal relationship
characterized by autonomy and confidentiality.113 Due to the imposition of a
duty on a physician to a nonpatient third party, a physicians focus may
detrimentally shift from his own patients treatment to shielding himself
from a potential lawsuit brought by the vast number of persons who will
interact with and may fall victim to that patients conduct outside of the
treatment setting.114 Moreover, this duty would affect the substance and
extent of the doctors advice and judgment regarding which underlying
conditions require warnings and which do not.115
A. Confidentiality Issues
In addition to interfering with the physician-patient relationship,
problems regarding patients privacy are likely to occur if a duty is imposed
in circumstances like these.116 If a duty is imposed on physicians like
Hochberg, a physician could be compelled to provide his patients
confidential medical records during the discovery process. 117 Particularly in
Massachusetts, patients are more vulnerable to having records discovered
109

See Medina I, 29 Mass. L. Rptr. at 32829.


See Medina II, 987 N.E.2d at 121013.
111 Cf. Burroughs v. Magee, 118 S.W.3d 323, 332 (using foreseeability in order to distinguish
two cases).
110

112

Medina II, 987 N.E.2d at 121213.


Id.
114 Id. at 1213 (quoting Coombes v. Florio, 877 N.E.2d 567, 587 (Mass. 2007) (Cordy, J.,
dissenting)); see also Jarmie v. Troncale, 50 A.3d 802, 822 (Conn. 2012) (stating that such a duty
would interfere with a physicians loyalty to the patient).
115 Medina II, 987 N.E.2d at 1213 (quoting Coombes v. Florio, 877 N.E.2d 567, 587 (Mass. 2007)
(Cordy, J., dissenting)).
113

116
117

Id.
Id.

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Acknowledging Foreseeable Consequences

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because there is no statute containing a notice requirement affording


patients the opportunity to object when third-party plaintiffs seek to
discover their medical records.118 Thus, the records will almost certainly be
discoverable in the majority of negligence claims brought against physicians
by third parties in Massachusetts. 119
B. Limitless Litigation
Conceivably limitless litigation is a third public policy concern that
would have detrimental long-term effects if physicians had a duty to
nonpatients.120 According to Justice Cordy, this tremendous surge of
litigation in both the short- and long-term would result[] in an attendant
increase in expenses at a time when our health care system is already
overwhelmed with collateral costs.121 Nationally, physicians have reported
that they are losing their medical malpractice insurance or are experiencing
rapid, unmanageable rate increases.122 As a result, physicians are being
forced to limit services, leave their practice, or relocate, all of which
seriously impede patient access to health care.123 An increasing number of
lawsuits and high jury awards are driving these rising rates.124

CONCLUSION
Medina v. Hochberg was properly decided due to overwhelming public
policy concerns disfavoring imposing liability on physicians with regard to
claims filed by nonpatient third parties. While a strong counterargument
clearly exists to advocate for redress for injured parties as well as creating a
safer environment for motorists, the beneficial policy implications in finding
for the physician outweigh the former concerns. Though the SJC decided this
case correctly, it should have adopted a more flexible balancing test to
adequately address each plaintiffs unique claim. Specifically, the Court
should have incorporated foreseeability as a factor in its analysis, as this
element will weigh heavily in determining whether a duty against a
physician should be imposed. In doing so, the Court would have
simultaneously given the plaintiff a more equitable opportunity to be heard
118

Schwartz, supra note 65, at 791.


Id.
120 See id. at 77980.
121 Medina II, 987 N.E.2d at 1213.
122 Healthcare Litigation Reform: Does Limitless Litigation Restrict Access to Healthcare?: Hearing
Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the Judiciary, 107th Cong.
20 (2002) (statement of Donald J. Palmisano, Secretary-Treasurer, American Medical
Association), available at http://commdocs.house.gov/committees/judiciary/hju80193.000/
hju80193_0f.htm.
119

123
124

Id.
Id.

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while reaching the correct conclusion: that in this specific instance, Dr.
Hochberg owed no duty to Medina.