B.R. v. West

275 P.3d 228 (Sup. Ct.)



The distinction between acts and omissions is central to assessing whether a duty is owed to a plaintiff. In almost every instance, an act carries with it a potential duty and resulting legal accountability for that act. By contrast, an omission or failure to act can generally give rise to liability only in the presence of some external circumstance - a special relationship. A special legal relationship between the parties thus acts as a duty-enhancing, "plus" factor. Even in nonfeasance cases, where a bystander typically would owe no duty to prevent harm, a special legal relationship gives rise to such a duty.

The appropriate foreseeability question for duty analysis is whether a category of cases includes individual cases in which the likelihood of some type of harm is sufficiently high that a reasonable person could anticipate a general risk of injury to others. The relevant category of cases consists of healthcare providers negligently prescribing medications to patients who then injure third parties. The foreseeability question is whether there are circumstances within that category in which a healthcare provider could foresee injury.


Plaintiff children filed a negligence suit against defendants, a nurse, a consulting physician, and a medical clinic when the nurse prescribed their father at least six medications, including Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone, leading him to killing his wife. The father subsequently pled guilty to aggravated murder. Plaintiffs alleged negligence in the prescription of the medications that caused their father’s violent outburst and his wife’s death. The defendants filed a motion to dismiss and the district court granted it, concluding that no patient-health care provider relationship existed between the plaintiffs and the defendants. The plaintiffs appealed, arguing that their claim was not a derivative one for harm to their father, but a personal one for their own injuries.


Do healthcare providers have a legal obligation to non-patients to exercise reasonable care in prescribing medications that pose a risk of injury to third parties?




There are several factors relevant to determining whether a defendant owes a duty to a plaintiff: (1) whether the defendant’s allegedly tortious conduct consists of an affirmative act or merely an omission; (2) the legal relationship of the parties; (3) the foreseeability or likelihood of injury; (4) public policy as to which party can best bear the loss occasioned by the injury; and (5) other general policy considerations. This was not a case in which the healthcare provider was charged with failing to restrain the father or with failing to warn his family about his unstable condition. Plaintiffs were not purporting to step into the shoes of the party who retained the physician’s services and their claim was personal for their own injuries rather than a derivative one for harm to their father. It was not too much to ask of a healthcare provider faced with a choice between two otherwise equivalent medications to choose the one that poses the least risk of causing the patient to injure a third person. Healthcare providers are not entitled to an elevated status that would categorically immunize them from liability when their negligent prescriptions cause physical injury to non-patients. The court reversed the district court’s incorrect conclusion that defendants did not owe a duty of care to the non-patient plaintiffs.

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