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New York Court Holds Third Party Can Sue For Medical Malpractice


The New York Court of Appeals has allowed an injured bus driver and his wife to continue their medical malpractice lawsuit against a hospital and doctors even though neither treated the plaintiffs. Rather, the defendants treated the woman who caused the automobile accident that injured the man.

According to the December 16, 2015, decision, doctors, hospitals, and other medical providers are under a duty to protect unnamed third parties by warning patients that a medication the provider has prescribed could cause impaired driving.

The decision is a major shift in the landscape of medical malpractice litigation, which had before been nearly always limited to plaintiffs who were involved in a doctor-patient relationship with the defendant.

Hospital administered narcotics and released driver

The lawsuit originated in Albany and arose from a 2009 accident between Edwin Davis and Elaine Walsh. Walsh went to South Nassau Communities Hospital complaining of abdominal pain. Two doctors treated her, giving an intravenous dose of a narcotic painkiller. They did not warn her that the medication would impair her ability to drive safely.

Only 19 minutes after the hospital discharged Walsh, her car crossed a double yellow line into the path of Davis and the bus he was driving. The crash injured Davis and he filed a malpractice claim against the hospital and two treating doctors. However, a lower court dismissed the bus driver’s case because he, as a non-patient, did not have standing to allege malpractice against the medical providers.

Elements of medical malpractice claim

Traditionally, in order for a plaintiff to prove a medical malpractice claim, he has needed to establish that:

  • The doctor owed a duty to the patient
  • The doctor breached the acceptable standard of care he owed the patient
  • The patient suffered an injury
  • The injury was the result of the breach in care

The recent court opinion modifies this by finding that a medical provider owes a duty not just to the patient but also to anonymous third parties who realistically might also be harmed, specifically when the medical provider has administered a medication that could impair the patient’s ability to safely operate an automobile.

Prescription drugs and driving

According to a 2010 study, nearly half of the drivers who tested positive for drugs had used a prescription drug. Of those, the most common prescription drugs taken were alprazolam (Xanax), hydrocodone (Vicodin), oxycodone (OxyContin), and diazepam (Valium). A smaller study the year found that the drivers in 5.4% of fatal accidents tested positive for opioids.

The numbers of accidents involving prescription drugs is a growing problem. For example, in 1999, the percentage of fatal accidents involving a driver taking opioids was less than half at 1.8%. It can be expected that the risk will rise as the population ages; 90% of people over the age of 65 take at least one prescription drug and nearly 40% take five or more prescriptions. In addition, older adults may be prone to taking the wrong amount of a drug as their mental capacity fails.

The Court of Appeals decision recognizes a need to protect motorists by ensuring that patients know the risk they take when driving while taking a given medication.