1 Oral argu ment was h eard i n th is case on Apri l 10, 2003, i n Dyer sburg , Dyer County , Tenne ssee , as part of this Co urt’s S.C .A.L.E .S. ( S upreme C ourt A dvancing L egal E ducation for S tuden ts) pro ject.



### IN THE SUPREME COURT OF TENNESS EE

AT JACKSON April 2003 Session Heard at Dyersburg
JUDY C . BUR ROUGHS , Individ ually and a s Survivin g Spouse a nd Per sonal Representativ e of the Estate o f Harold L. Burro ughs, Deceased v. ROBERT W. MAGEE, M.D.
Appeal from the Circuit Court for Lauderdale County No. 5005 Joseph H. Walker, III, Judge

No. W2001-00238-SC-R11-CV - Filed October 1, 2003

This is an action f

or damag es for pe

rsonal in jury and wrongful de ath resulting fr om a n automobile

accide nt in which

the plain tiff wasinjured a

nd her hu sband wa s k illed . The plaintiff filed suit aga

inst the driver of the other vehicle. The plaintiff later amended her complaint

to assert a claim against the other driver’s phy sician, alleging that on the day before the accident the phy sician neglig ently

prescribed two medications to his patient (the other driver), medications that can impa ir
a person’s ability to drive, and tha t the physician failed to wa rn his patien

t of th e risks of driving while under the

influenc e of the t

wo drug s. The tri al court granted th e ph ysician’s motion for
summar y judgment on the ground that the phy sician owed no duty of c are to the plaintiff and her husband. The Court of Appeals affirmed in part and rever sed in part; the intermediate court held that the physician owed a

duty to the plaintiff

and her husband to warn his patient of the risks of driving while under the influenc e of the p

rescrib ed drug s, but the c ourt held that the phy sician ow ed no duty to the plaintiff or her husband in deciding whether or not to presc ribe the medicati ons to his pa

tient. We affir m the judgment of the

Court of A

ppeals. 1
Tenn. R. App.P. 11, A ppeal by Permissio n; Judgme nt of the Court of Appea ls Affirme

d; Judgment of the Trial Court Affirmed in Part, Reversed in Par t, and Remanded

W IL LI AM M. B ARKER , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and A DOLPHO A. B IRCH , J R ., J., joined. E. R IL EY A NDERSON , J., filed a concurring and dissenting opinion. J ANICE M. H OLDER , J., filed a concurring and dissenting opinion.

J. Houston Gordon, Ly

le Reid, and Jason G. Whitworth, Covington, Tennessee, for theAppellan t, Judy C. Burrou ghs.2 Later in the lit igation, Mrs. Burroughs filed a second amended complaint. The second amended complaint

add ed a c laim for loss of c onso rtium an d incre ased the ad dam num s tated in th e com plaint.
-2- Hubert B . Jones and G ary H. Nichol s, Dyersburg , Tennessee, for the Appellee, Robert W. Magee, M.D.

Da vidL. Steed and Bry

an K. Williams, Nashville, Tennessee, for the Amicus Curiae, T ennesse e Medical Association.
OPINION

The complaint alleges that at approximately 7:00 p.m. on July 31, 1997, Roger E. Hostetler
ran a stop sign and

that his tr uck colli ded with a

car dri ven by

Harold L . Burroughs. Mr . Burroughs’ wife , Ju dy C. Burroughs (the plaintiff), was a pa ssenger in the car driven by her husband. Mr. Burroughs was seve

rely injured in the acc ident and

subseque ntly died as a result of his injurie s. Mrs. Burroughs sustained serious injuries in the accident.

Mrs. Burroughs filed suit against Mr. Hostetler, a lleging that he “neglig ently, reckle ssly and withgross negligence

and willful and wanton disregard for the saf ety of others,”ran a stop sign and thereby caused t he acci dent. The

complain t alleg es in the a

lternati ve that Mr . Hostetle r negli gently failed to properly

inspect and/or maintain his vehicle, specifically his brakes. Approximat el y

eight months after filing her complaint, Mrs. Bur roughs filed an amended complaint adding a second defendant, Robert W. Magee, M.D ., who treated Mr. Hostetler on the day before the accident and prescribed two medications to him, medications that can affect a person’s abi lity to safely oper

ate a motor vehicle. 2 In summary , the amended complaint alleges tha t Dr

. Magee negligently

prescribed the two medications to Mr. Host etler and that Dr. Magee

neglig ently failed to warn Hos tetler of

the risks o f driving

while und

er the in fluence of the two

drugs.

The facts set out in the record indicate that on July 30, 1997 Mr. Hostetler went to the Ripley office of the Dyer sburg Medical Group, where he w as seen by Dr. Mag ee. (Mr. Hostetler had been
a patient of that office since the mid-1980s. However, Dr. Magee did not join the g roup until 1996 and had not personally trea ted Mr. Hostetler prior

to July 30, 1997.) Dr. Magee ’s office note from the July 30 visit states that Mr. Hostetler had been relea sed from the hospital the previous week after suffering from heat exhaustion. The office note states that Mr. Hostetler present ed with co mplaints of “persistent

weakne ss in his uppe

r extremiti es and recurren t headac he.” Dr . Mage e’s off

ice note includes a reference to Mr. Hostetler being a truck driver.

After examining Mr. Hostetler, Dr. Magee pre scri bed two medications for him, Soma (a muscle relaxant) and Esgic-Plus (a barbiturate). Dr . Magee testified in his deposition that he prescribed

the Soma to

treat Mr . Hostetle

r’s muscl e cramp s and the E sgic-Pl us to treat his3 Dr. M agee ’s office no te in M r. Ho stetler’s chart makes no ment ion of Mr. Hoste tler com plaining of mu scle cramps, nor

does it mention that

Dr. Magee gave Hostet ler a pr escri ption f or Soma.

4 Dr. Magee’ s of

fi ce not e cont ains no ref erenc e to any warnings giv en by Dr. Magee. Dr. Magee test if ied, how ever, tha t he gav e the wa rnings a nd tha t the cha rt was “inc omp lete.”

5 One pil l of

chl ordia zepoxi de was foun d on th e fl oor of M r. Hostetler’s pickup truck. In addition, a witness reported seeing Hostetler exi t his t ruck after t

he accident and drop a

bag o n t he g roun d; abag c ont ain in g 1. 5 gr ams of marijuana was found approximately nineteen f eet from Hostetler’ s truck. Also, severa l ca ns of beer a nd a bot tl e of tequila were f

ound in t he tru ck; Hostet

ler’ s passen gers, however, test ifi ed that the beer and tequila belonged to them and that Hostetl er had not been drink ing ei ther a lcoholi c beverage.
-3- headaches. 3 Both drugs act as depressants on the c entral nervous sy stem and can affect a patient’s ability to safely

operate a motor vehicle.

There are sharply

disputed issues of fact

as to whether Dr. Magee g ave any warnings to Mr. Hostetler about the possible effects of the two drugs. Mr. Hostetler testified in his deposition that Dr. Magee

gave h im no warn

ings abo ut the two d

rugs and did not ad

vise ag ainst him dr

iving wh ile under the influence of the medications. On the other hand, D r. Magee testified

in an affidavit and in hi s depo siti on th at he d id giv e appro priat e warni ngs to Mr. Hos tet ler abo ut th e me di cat io ns. In his affidavit, Dr. Magee stated that he told Mr. Hostetler that taking Soma and E sgic-Pl us at the s ame time “can cause an enhanced effect and requires him to e xercise c autio n when taking them and [advised him] to follow the instructions I had given him not to drink, drive or operate machinery .” 4

Mr. Hostetle

r filled t he two pr escripti ons at a lo cal phar macy . On the da

y of the acc ident, he took one Soma and one Esgic-Plus at breakfast (at approximately 10:00 a.m.) and again took one doseof each drug at lunch (at appr oximately 2:00 p.m.). Mr. Hostetler and the two people who were passengers in his pickup truck at the time of the accident each testified in their respective depositions that Hostetler had not consumed any alcohol on the day of

the accident and had

not taken any other drugs on that date. 5

The investigating state trooper testified in his deposition that after the accident Mr. Hostetler
was “ thick t ongued” in responding to questions and appea red to be “under the influence of somet hing, whether it be alcohol or drugs or whateve r.” When askedby the trooper if he was taking any medications, Mr. Hostetler responded that he was taking two prescriptions “for his back.” The trooper said that h

e perfo rmed a f ield sobr iety test which showedno evidence that Mr. Hostetler was under the influenc e of alc ohol.

M r. Ho stetler’s medical chart indicated that other phy sicians in the group previously had prescribed

Soma to Ho st etler on

a number

of occa sions, beg

inning in the mid-19 80s and, mo st re ce nt ly, in the spring of 1995. Mr. Hostetler’s chart also indicated that phy sicians at the clinic had refused to prescribe Soma for him on several oc casions. The last such occasion was on August 8, 1995. On that da

te, one of Dr. Mag ee’s co lleagu es stated in an off ice note that t he patient “was demanding that I prescribe the Soma for him and I

have de clined to

do so because I think this has6 The plai nti ff ’s expert witness , Will iam M. Rodne y, M.D., Prof essor and Chai r of

Family Medicine at Meharry Medical Coll ege, st ated in a ff idavi ts and i n hi s depos it ion that Dr. Magee negligentl y prescribed the two medications to Ho stetler. In sum mary, Dr. Rodney sai d that : (1) Dr. Magee should not h ave prescr ibed Som a bas ed up on H ostetler ’s medical history, and (2) that the s tandard of care required Dr. Magee to warn Hostetler about the possi ble effects of the presc ribed drug s.

7 The plaintiff ’s clai m against Mr. Hostet ler had pre viou sly been s ett led. As a result, the appeal of the summary ju dgme ntin fa vor

of Dr. Magee was an appe al as of ri ght pur su ant

to Rul e 3, Tenn . R. App. P.

-4- reached the stage of substa

nce abu se and I

don’t fe el that I

should pre scribe th

is medica tion for h im to continue taking while driving a rig on the hig hways ac ross the country.”

In his deposition, Dr. Magee testified that he did not review the ea rlier notes indicating that Hostetler had been

refused Soma prescriptions on severa l occasi ons. I

n particular, Dr . Mage e did notreview t

he note f rom the of

fice visi t on Augu st 8, 1995. He conc eded, ho wever, that the n ote from August 8, 1995 was the second page of Mr. Hostetler’s c hart and that if he had merely turned the first page he would have seen the note . Dr. Magee testified that the earlier notes would not have affected his treatment decision; he state d that he w ould have prescr ibed Soma

and Esgic-Plus to Mr. Hostetle r even if he had re ad the ea

rlier not es reg arding

the ref used pre scription s.
The plaintif

f alleges that Dr. Magee was negligent in failing to adequately revie w Mr. Hostetler’s medical hi story co ntained in the medical chart. Mrs. Burroug hs alleges that “it was obvious th at Roger Ellis Hostetler was a truck driver with a known past history of abuse of prescr ibed medi cation, Soma, an ad dictive a nd potenti ally

dangerous muscle relaxer” and that Dr. Magee thereforewas negligent in prescribing Soma to Mr. Hostetler. Mrs. Burroughs also alleges that Dr. Magee

neglig ently

failed to warn Mr. Hostetle

r against driving while under the influence of the two dr

ugs. 6

Dr. Magee filed a motion for summary judgmen t asserting that Dr. Mage

e did not ow e a duty of care to the plaintiff or her husband. In a ddition, Dr . Mage e asser

ted that h is presc ription of Soma and Esgic-Plus to Hostetler was not a cause of or a contributing factor to the accident. The trial c ourt granted Dr. Magee’s motion, finding that Dr. Mag ee owed no duty of car e to the plaintiff and her husband. (The trial court’s order did not address Dr. Mag ee’s causation argument.) The plaintiff appealed the tria

l court’s granting of the

motion for

summary judgmen t. 7

The Court of A

ppeals a ffirmed in part a nd rever sed in

part. The intermediate appellate court held that D r. Mage e owed a duty of c are to the plaintiff and her husband to warn Mr. Hostetler of the risks of d

riving w hile unde r the infl uence o f the pre scribed

drugs. The Court

of Appea

ls, however, held that Dr. M agee ow ed no duty of ca re to the plaintiff and her husband in making prescription decisions regarding Mr . Hostetler’s treatment.

We granted the plaintiff’s app licati on for permission to appeal pursuant to Rule 11, Tenn. R. App. P. F

or the re asons sta

ted below , we aff

irm the jud

gment of the Court o f Appea

ls.8 The tri al court’ s order gr anti ng summary judgment t o Dr. Magee is l imit ed to the fin ding that Dr. Magee (con tinued ...)
-5- STANDARD OF REVIEW

The existence or

nonexistence of a duty owe d to the plaintiff by the defe ndant is a question of law to be determined by the court. Staples v. CBL & Associates, I nc. , 15 S.W.3d 83, 89 (Tenn. 2000); Rice v. Sa

bir , 979 S.W.2d 305, 308 ( Tenn. 1 998); Bradshaw v. Daniel , 854 S.W.2d 865, 869-70 (Tenn. 1993); Lindsey v. Miami Dev. Corp. , 689 S.W.2d 856, 858 (Tenn. 1985). Our review of this questi on of law

is de novo u

pon the record, vie

wing the evidenc e inthe ligh

t most favora ble to the non-m

oving pa rty (the pla intiff), allowing

all reas onable in

ferenc es and discard

ing all countervailing evidence. Bradshaw , 854 S.W.2d at 870.
SUMMARY

OF PA RTIES’ ARG

UMENTS

Under Tennessee law, the plaintiff in a negligence action must prove e ach of the following elements : (1) a duty of c are owed by the defendant to the plaintiff; (2) conduct of the defendant that fell below the applicable standard of care, amounting to a

breach of the duty

owed to the plaintiff; (3) an injury

or loss sus tained by

the plain tiff; ( 4) caus ation in fa

ct; and ( 5) proximat

e, or leg al, causation. Staples , 15 S.W.3d at 89 ; White v. Lawrence , 975 S.W.2d 525, 529 (Tenn. 1998). The focus in this case is on the first element, the duty of care.

The plaintiff, Mrs. Burroughs, is advancing two separate arguments as to why the defendant owed her and her h usband a duty of care . First, Mrs. Burroughs asserts that Dr. Mag ee had a duty to his patient (Mr. Hostetler) and to the motoring public (which included theBurroughses) to warn the patient of the risks of driving while under the influence of the two prescribed drugs, Soma and Esgic- Plus. Mrs. Bur

roughscontendsthat Dr. M agee failed to warn Mr. Hostetle

r of those risks and thereby br

eached the duty

of care he (Dr. Mag ee) owed to Mr. and Mrs. B urroug hs. Second, Mrs. Burroughs argues that Dr. M agee ha d a duty to the motoring public ( which included the Burrou ghses) to use reasonable care in deciding whether or not to prescribe medication that can affect the patie nt’s ability to

safely operate a motor ve

hicle. Mr s. Burroughs asserts that Dr. Mag ee violated that duty of car

e by inappropr

iately presc

ribing Soma and Esgic-Plus to Mr. Hostetle r. Mrs. Burroughs alleges that Dr. Magee knew or reasona bly should hav e known th at anothe r phy sician in th e gro up had concluded that Mr. Hostetler’s previous use of Soma had re ached the point of substance abuse and that Mr. Hostetler had been “driving a rig on the high way s across

th e c ou nt ry” while taking Soma. Mrs. Burroughs asserts that Dr . Magee theref ore was negl igent in inapprop riately prescr ibing the two drug s to Mr. Hos tetler on the day before the fata l accide nt.

Dr. Magee argue s in response that the plaintiff failed to present any evidence that the medication prescribed by

Dr. Magee was in Mr. Hostetler’s sy stem at the time of the accident. Dr. Magee therefore asserts that

the plaintiff has failed to establish an essential element of her negligence claim (causa tion) and that he is e

ntitled to a

summary judgmen t. 8 Dr. Magee

also asse rts that he did8 (.. .cont inu ed) owed no duty of care to M rs. Burroug hs an d her h usban d. The t ria l cou rt’ s orde r does not addres s Dr. Magee’s caus ati on argum ent; in f

act, the t rial court s tate d in a f

ootnote t hat “ causat ion . . . woul d be contest ed [at t rial ].” Li kew ise, th e Court of A ppe als did not address the causati on issue. Based upon our review of the record, we fi nd that there are disput ed iss ues of f

act as to the elementof caus ation, and we ther efore r eject Dr. Magee’s argument that he is enti tled to a summ ary judgm ent based solely on causation gro unds.
-6- notowe a duty of c are to Mrs. Burroughs and her husband under either of the theories advanced by the plaintiff.

The Court granted permission for the Tennessee Me dical Association (“TMA”) to file a brief
as amicus curiae. The TMA’s brief arg ues that the trial court correctly found that Dr. Magee owed
no duty to the plaintiff

and her husband. The TMA asserts that extending a physician’ s duty of care to non-patient third parties would be contrary to public policy and that such an e xtension would result in “ unlimited p otential l

iability ” of phy sicians.
DUTY PRINCIPLES UNDER TENNESSEE LAW

All persons have a duty

to use reasonable care to refr ain from conduct

that will forese eably
cause injury to others. See Doe v. Linder Constr. Co., Inc. , 845 S.W.2d 173, 178 (Tenn. 1992). Thus, it has been said that duty is the lega l obligation that a defendant owes a plaintiff to conform t o a rea sonable p erson sta ndard of care in order to protect agains t unreas onable r

isks of ha

rm. Staples , 15 S.W.3d at

89; McCall v. Wilder , 913 S.W.2d 150, 1 53 (Tenn. 1995 ). In assessing whether a duty is owed in a par

ticular case, courts apply

a balancing approach, based upon principles of fairness, to identify whe ther the ris k to the plaintiff was unreasonable. Turner v. Jordan , 957 S.W.2d 815, 818 ( Tenn. 199 7). A “r isk is unre asonable

and giv es rise to

a duty to act wit h due care if the foreseeable probability and gravity

of harm posed

by defenda

nt’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” McCall , 913 S.W. 2d at 1 53. A n umber of fact ors are consi dered i n maki ng thi s dete rmina tion , incl udin g:

the forese eable pr

obability of the ha

rm or inj ury occur

ring; the possible magnitude of the potential harm or injury ; the importance or social value of

the activ ity engaged in by

defendant; the usefulness of the conduct t

o defend ant; the feasibility of alterna tive, safer conduct and the relative costs and burdens associated wi t h that conduct; the relative usefulness of the safer conduct; and the relative safety

of the alterna tive cond uct.
Id. ; see also Coln v. City of Savannah , 966 S.W.2d 34, 39 (Tenn. 1998).

Ad di ti on al ly, consider

ations of public pol

icy are cr ucial in determining whether a duty of ca

re exist ed in a p articular case. Bain v. We lls , 936 S.W.2d 6 18, 625 (Tenn. 1997 ); Bradshaw , 854 S.W.2d at 870. As we stated in Bradshaw :-7- the imposition o f a leg al duty reflects socie ty's contemporary policies
an d so cial requirements concerning the r ight of individuals and the general publ ic to b e prot ected f

rom an other 's act

or conduct. Indeed, it has beenstated that "'duty ' is not sacrosanct in itself, but is only an expression of the sumtotal of those considerations of policy which lead the law to say

that the plaintiff is entitled to protection."

Id. , (quoting W. Keeton, Prosser a nd Keeto n on the L

aw of Tor ts § 53 at 358 (5th ed. 1984) (internal citations omitted)). Applying the foregoing principles in a number of cases relating to health care, the Court has held that a physician (or , in one case, a hospital) may owe a duty of care to a non-p atient thi

rd party if the physician’s (or hospital’s) negligence cause s re as on ab ly f or es ee ab le in ju ri es to th e t hi rd pa rt y. Estate of Amos v. Vander

bilt Unive

rsity , 62 S.W.2d 133, 138 (Tenn. 2001) (holding that hospital owedduty

of care to former patient a nd to the g eneral

public to w arn for

mer patie nt of her possible exposure to human immunodeficiency vir us); Turner , 957 S.W.2d a t 820 (hold

ing that psy chiatris t owed duty of c are to a hospital n

urse to pr

otect he r from vio lent and intentiona l acts o f a hospitalized, mentally

ill patien t); Bradshaw , 854 S.W.2d at 873-74 (holding that phy sician of patient suffering from

Rocky Mountain Spotted Fever owed a duty of c are to warn patient’s wife of her r isk of contracting the

disease ); Wharton Trans. Corp. v. Bridg es , 606 S .W. 2d 521, 527 (Tenn. 1980) (holding that physician perf orming mandatory

pre-employme

nt physical examination of prospective truck driver owed duty

of care to motoring public). Compare Bain , 936 S.W.2d at 626 (holding that physician and hospital did not owe duty to warn ho spit al patient of his hospital roommate’s HIVpositive status an d t hat patient could not recover damage s for emotional distress absent actual exposure to HI

V); Pittman v. Upjohn Co. , 890 S.W.2d 425, 433-34 (Tenn. 1994) ( holding that physician’s duty to warn re garding dange rs of prescribed drug di d not extend to pa tient’s a dult grands on under the facts of the case). I n the foregoing cases, the Court analyzed the existence or non-existence of

a p hys ic an ’s du ty t o a no n- pa ti en t t hi rd pa rt y b y apply ing the same general principles (discussed above) that are applied in analy zing duty issues in a

ll ty pes of ne glige

nce cas es.
In Amos , the plaintiff

’s dece ased wif

e (“the patient” ) underw ent jaw su rgery in August 1984. Without her knowledge, the patient received four units of blood during the surgery

. As a result of the blood transfusion, the patient became infected

with the human immunodeficiency vir us (HIV). At the time of her

surger y, b lood bank s did

not test blo od for the

presenc e of HI

V, and Va

nderbilt had no policy requiring

that patients be n otif

ied when they r

eceived blood transfusions during
su rg er y. In 19 85, the ho spital began screeni ng blood for HIV, a nd in 1987 the hospital began offering free HI

V testing to patients who had receiv ed blood tr

ansfusio ns at its facility. Howeve r, the hospit al did not u

ndertak e to notify

all prior patients who had received blood transfusions that they could have

been exposed to HIV.

In 1989, the patient married, and later that y ear she gave birth to a

daughter. The daughter became infected with H IV in utero and died approximately two months after her birth. When the daughter w as d iagnosed with AIDS, the pa tient was tested for HIV, a nd her results were positive.9 At the ti me of the defendant-hospital ’s negli gence, the husband was n ot marrie d to t he pat ient . Howeve r, by faili ng to warn the patient of herpossible exposure to HIV, the defendant thereby endangered any person to whom the patient could unknowingly transmit HIV (e.g., her future hus band and child).
-8- Until that time, the patient was unaware that she was infected with the virus. A subsequent review of her medical records disclosed that she had re ceived the blood transfusion in 1984.

The patient and her

husband s ued the ho spital for the wron gful de ath of the ir daughter and for negligence and

negligent infliction of emotional distress. The patient died during the litigation, and her claims were then continued by her husband. The jury

awarded substantial damages to the patient’s estate and also awarded substantia

l damag es to the husband. On appeal, however, the Court of Appeals reversed the award to the hu sband and drastically reduced the award to the patient’s estate. We reversed the intermediate court’s judgment. In pertinent par t, this Court held that the patient’s husband was within the “zone of danger” and thus wa s a foreseeable victim. We noted that “‘[t]he imposition of

a lega l duty reflects society ’s conte

mporary policies a

nd social require ments concer ning the right of individuals and the ge neral publ ic to be protected from another’s act or conduct.’” Amos , 62 S .W.3 d at 13 8 (quo ting Bradshaw , 854 S.W.2d at 870 ) (emp hasis added). Under the factspresented in Amos , we concluded that the hospital owed a duty of care not only

to the patient but also to

the plaintiff-husband, who was a member of the general public at the time of the defenda

nt’s neg ligent c onduct, b ecause it was for

ese eable th at the patient would marry and thereby unknowingly expose her husband (a nd their child) to HIV. 9

Another of our health care-related duty

cases is particularly

instructive as to the pending case. In Wharton Transport Corp. v. Bridges , w e co nsidered the question of whether a phy sician who performed

mandatory, pre -employment phy scial examinations of prospective truck drivers owed a duty that extended to members of a family who we

re injured by a

truck driver whom

the physician had negligently

certified as phy sically

qualifie d to drive . Answer ing that question in the affirmative,
we rejected the no tion t hat imposing such a duty w ould expose the physician to “liability to an unlimited class of persons, for an unlimited amount of damages and for an unlimited time.” Wharton Transport , 606 S.W.2d at 528. Based on the facts of that case, we found that the phy sician knew the “failure to proper

ly c onduct the

exami nation woul d increa se the ris k of harm to members of the motoring public. ” Id. at 527 (emphasis added). We went on to state that “[w]e are not attempting to make the

phy sician a

n insurer of hig h way saf

ety, but his duty

to properly conduct the physical examination exte nds bey ond his contractual responsibilities to the driver and the trucking company .” Id.

With the foregoing principles in mind, we turn to cons ider the pl aintiff’ s two arg uments concerning Dr. Mag ee’s all eg ed du ty t o Mrs. Burroughs and her husband. We beg in with the question of whether a phy sician has a duty to wa rn his or her patien t of poss ible side effects of medication that could affect the patient’s ability to safely oper

ate a motor vehicle.
DUTY TO WAR

N PATIEN T OF MEDI CATION’S SI DE EFF ECTS10 W e use this m yth abo ut ostrich es for illustra tion. See “Ostric h: Struthio camelus – Adaptations” (stati ng,

“In order to av oid bei ng det ecte d by pre dator s, os t riches wil l often l ay on the ground and stretch necks out along the groun d. This is what has probably caused the myt h that ostriches ‘bury t

heir heads.’"), Como Zoo & Conservatory, Saint Pau l, Min neso ta, availa ble at h ttp://www .ci.stpau l.mn.us/d epts/p arks/co mop ark/zo o/ostric h.html (J une 1 6, 20 03)

.

-9- Mrs. Burroughs allegesthat Dr. Magee owed a duty to both Mr. Hostetler and the motoring public to warn Hostetler of the risks of drivin g while under the influenc e of the t

wo presc ribed dr ugs. We reiterate that there are disputed issues of fact asto whethe

r Dr. Magee ga

ve such a warning to Mr. Hostetler and that this factual issue is for the jury to determine. How ever, under thestandard of review that applies to this appeal, see Bradshaw , 854 S.W.2d at 870, we assume for purposes of
our an alysis o f the d uty issu e that Dr. Ma gee did not gi ve suc h a warn ing.

In order to determine whether Dr. Mag ee owed such a duty , we must a

pply the various factors set out in McCall

to the facts of this case. The first of those factorsis the “fo reseea ble proba bility of the harm or injury oc curring[.]” Dr. Magee and the TMA argue that under our decision in Pittman there was not a

reasona bly forese eable pr

obability that har m would re sult

from Dr. Magee’s alleg ed failure to warn Hostetler of the risks of driving unde r the influence of Soma and Esgic-Plus.

In Pittman , the patient’s adult grandson, who was visiting the patient’s home, took some of the patient’s diabetes medication, apparently believing the pills were aspirin. Within hours, the grandson experienced a severe reaction a nd ul timately was diagnosed as having severe hypogly cemia. The grandson sustained pe rmanent brain damage and wa s hospitalized in an extended
care facilit

y. Pittman , 890 S.W.2d a t 427. The

plaintiff s (the pa rents of the gra ndson) fi led suit agains t, among o thers, the patie nt’s pre scribing

phy sician, a

lleging that he br eached his duty to warn of the dangerous propensities of the medication.

We stated in Pittman that “[t]he law imposes up on all per sons the du ty to use reasonable care under the circumstances. Physic ians are not exempt from this duty to non-patients even though the act or omission was committed while engaged in the practice of medicine. Of course, a duty of ca re is dependent upon foreseeability [.]” Id. at 431. However, after reviewing the facts of the case, we concluded

that the plaintiff

s “faile d to ‘show

that the in jury was a re asonably

fo re se ea bl e p ro ba bi li ty, notjust a remote possibility. . . .’” Id. at 433 (quot ing Do e v. Linder Constr. Co. , 845 S.W.2d at 178).

We disagr

ee with Dr. Magee and the TMA th at Pittma n requires a finding that Dr. Mag ee didnotowe the Burroughses a duty to warn Hostetler of

the risks of driving under the influence of Soma and Esg ic-Plus. D ue to the manner in which the patient’s grandson was injured, the injury at issue in Pittman was not reasonably foreseeable. However, a rguing that there was no forese eable probabil ity of an injury

in the pending case is the tort-law equivalent of an “ ostrich burying its head in the sand.” 10 Hostetler’s medical chart strikingly answers the qu estion of whether ther e was a foreseeable probability

of harm in this case.-10-

Dr. Magee’s colleague

had refused (two years earlier) to prescribe more Soma for Mr. Ho stetler because the phy sician had concluded that Mr. Hostetler was abusing the drug. As the physician wrote in his office note, “I

don’t fe el that I

should pre scribe th

is medica tion for h im to continue taking while driving a rig on the highway s across the country .” That note in Mr. Hostetler’s medical chart clearl y indicates that Hostetler could be endanger ing himself and others by driving whil e taking Soma, and that note refutes any argument that the injury to the plaintiff and the wrongful death of her husband wer e not foreseeable.

The second factor we consider from McCall

is “the possible magnitude of thepotential harm
or injury[.]” We need look no further than the a ll too common example of DU I-r elate d accide

nts to apprecia

te the possible magnitude of harm or injury that can result from an impaired driver. Deaths and se rious injuries tragically occur every

day as the r

esult of impaired drivers who are operating motor vehicles on our roads and highway s. In addition to the devasta

tion such a

ccident s can wreak on individuals and families, our s ocie ty also incurs substantial costs (both human and economic) as a result of impaired drivers. Given these rea lities, “the possible magnitude of the potential harm or injury” tha t can result from failing to warn a patient of the possible e ffects of medicati on on a pa

tient’s a bility to drive s afely

is signif icant.

The third factor we consider is “the importance or soc ial value of the activity engaged in by defe ndan t[.]” A phy sician’sdeliver y of medical s ervice s is of

the high est import

ance bo th to individual patients and to s ociety. Bo th the patient and society be nefit from the availability of competent and effective medical servic es. In determining whether a duty exists under the facts of this case, we give considerable weig ht to the significant “importance and social value”of medical service s and the e

ffect th at a find

ing of a duty might ha ve on the d

elivery of those s ervice s.
The fourth f

actor sta ted in McCall

is “the us efulnes s of the c onduct to d efenda nt[.]” We fa

il to see any

reason w

hy Dr. Magee’s alle ged co nduct ( not warning Hostetle r of possi ble adve rse effects of the drugs) was use ful to Dr. Magee. There mig ht be a de minimus benefit to Dr. Magee in n ot providing such warnings in that it might save him a small amount of time. Para doxically , however, it probably is more “usef ul” to Dr. Magee to give app ropriate warning s to his pati ent to minim izethe chance of a

subsequent medical malpractice action based upon an injury sustained by the patient. If the patient (as opposed to a third party ) is injured as a result of his or her physician failing to give appropriate warnings a bout a drug’s side effects, the patient mi ght file

suit against the physician.

The fifth factor we consider from McCall is “the feasibility of alter

native, safer conduct and the relative costs and bu rdens associated with that conduct; the relative usefulness of the sa fer conduct; and the r

elative s afety

of the al ternativ e conduct. ” In thecontext of the alleged duty

to warn, the “alternative, safer conduct” simply would be t

o warn the patien

t of the po ssible ad

verse effec ts of the prescribed drug(s) on the pa tient’s ability to safely

drive a mot or vehicle. That alternative conduct i s both usef ul (in that it could pr

event ha rm or injur

y to the patie nt and othe

rs) and safe. Moreover, it also i mposes little additional burden on the physician. As anothe r court observe d in discus sing a ph ysi cian’s d

uty to warn:-11- It ap pears ob vious that

warning a patien t not to driv e becau se his or her dr ivi ng ability mi ght be im paired b y a

medicati on could potentia lly prevent signific ant harm

to th ird p arties. T

here is “ little [social] utility

in fa iling to warn patients about the effects of a drug
or condition that are know n to the physician but are likely to be unknown by to the patient.” Praesel v. Johnson , 967 S.W.2d 391, 398 (Tex. 1998). F

urthermo re, a phy sician a

lready owes a du

ty to his or her patient under existing tort law to warn the patient of such a potential adverse side effect. Thus, imposition of a duty for the benefit of third p arties isnot likely to requir e signif icant ch angesin prescribing behavior. McKenzie v. Hawaii Permanente Med. Group, I nc. , 47 P.3d 1209, 1219 (Haw. 2002).

Based upon Amos and Wharton Transport , and based upon ou r balanci ng of the factor s to be consid ered in r esolving duty issues, we hold that

under the facts of this case Dr. Mag ee owed a duty of care to Mr. Hoste

tler and to the Bu rrough ses to war

n Mr. Hoste

tler of th e possible adverse effect of the two prescribed drug s on his ability to safely operate a motor vehicle.
DUTY TO THIR

D PARTI

ES IN PRESC RIBING M EDICATION

We next consi der th e plai ntiff ’s argu ment that Dr. Magee owed a duty of care to the Burroughses (as members of the motoring public) in makin g his d ecisi on to prescr ibe th e two d rugs to Mr. Hostetler. The plaintiff asserts that a balancing of the factors summarized a bove in the cont ext of the dut

y to warn leads to the conclusion that Dr. Magee a lso owed a duty to consider the risks to third parties when prescribing the medications to Mr. Hostetler.

The plaintiff

argue s that th e office note dated August 8, 1995 (in which Dr. Magee’s colleague stated hisconcern that Hostetler was abusing Soma while driving a truck) establishes that there was a “foreseeable proba bility of the harm ” that occurred in this case. As we discussed above,
we agree with Mrs. Burroug hs on this poi nt. The office note written by Dr. Magee’s colleag

ue clearly refutes any

argume nt that it wa s not fore seeable that Mr. Hostetler might be involved in an accide nt. The implic it but plain

meaning of that no te is that Mr. Hostetle r posed a dange r to himself and/or others by continuin g to “dri v[e] a

rig on the highway s across the country ” while taking Soma. However, as discussed above, the answer to the question of whether the harm or injury was forese eable

is not dispositive in determining the existence of a legal duty . Both Dr. Magee and the TMAar gu e t ha t p ol ic y reasons ou tweigh any other fa ctors tha t might sup

port a finding tha

t a phy sician ow es a duty

to third pa

rties in ma

king pre scription

decision s.
In holding that Dr. Magee did not owe the B urroughses a duty of care in making his decision to prescribe the two drugs to Mr. Hostetler, the Court of Appeals relied upon Webb v. Jarv is , 575 N.E.2d 992 (Ind. 1991). I n Webb , the defendant phy sician prescribed anabolic steroids to a patie nt. The plaintiff alleged that the steroids caused the patient to turn “into a t o xic psychotic who was-12-

unable to control his rages” and that the patient, during suc h a rage, sh ot and injured the plaintiff. The plaintiff sued the physician, alleg ing that he was negligent in over-prescr ibing anabolic steroids to the patient. The plaintiff urged the court “to find a n affirmative duty on the

part of a phy sician to administer

medical treatment to a patient in such a way as to take into acc ount possib le harm to unidentif iable third persons.” Id. at 995. The Indiana Supreme Court dec lined to find that the phy sician owed the non-p atient pla intiff a d uty of care . One bas is for the Court’s ho lding wa s its consideration of public policy. A s the Court stated:

A phy sician’sfirst

loy alty must be to h

is patient. Imposing a duty on a physician to predict a

patient ’s behav ioral reaction to medication and to id en ti fy p os si bl e p la in ti ff s w ou ld ca us e a di vi de d l oya lt y. Were we to impos e a duty on a phy sician to c onsider t he risk of harm to third persons beforeprescr ibing me dication

to a patie nt, we wou

ld be forcing

the phy sician to w eigh the welf are of unknown persons agains t t he welfa

re of hispatient. Such an imp osition is unacceptable. The physician ha s the duty to his patient to decide when and what medication to prescribe the patie nt, and to inform the patient regarding the risks and bene fits of a part icula

r d ru g t he ra py. He should fulfill that

duty without fe ar of be

ing exposed to liability to unknown , unidenti fied thir d persons

. Id.at 997. The Hawaii Supreme Court expressed similar concerns in McKenzie : Prescribing decision s m ust t ake into account complicated issues
conc ernin g the poten

tial bene fits and r isks to indiv

idual pat ients. Moreover, although wedo notbelieve that doctors would altogether stop prescr

ibing be neficia l me dicatio ns to their patients because of the risk of liability to third parties, an expansion of such liabi lit y would certainly discour

age some prescriptions – particular ly , as a mi cus curiae

HMA pointsout, the pr escripti on of psy

chiatric medications tha t ne cessarily ha ve behavioral effects. The social utility of these medications is enormous, and we do not want to disco urage their use . The risk of tort lia

bility to individu al patien

ts should be enoug h to discourage neglig ent prescribing decisions. As discussed infra, the risk of injury to non-patient third par ties can be readily addressed through the more narrow question of whether there is a duty to warn pa

tients ag ainst

driving while under the influence of the medication.
Moreover, controversially but re alistically, phy sicians a nd patients must consid

er fac tors such

as cost, c ost- ef

fectiveness, and-13- availab ility

of insurance covera

ge in pr escribing decis ions. Insurers likewise must consid

er trea tment eff

ecti v eness and cost in determining which trea tments to pa y f or and wh

ich medic ations to include on hospital and clinic formulari e s. . . . Health care policy decisions require a complicated array of consideration s by a varie ty of private and public decision makers, which include phy si cians, other professionals, regulators, employ ers, patients, and

other health
care consumer representatives who have a stake in such dec isions. We believe that these policy dec isions a

re better left to the aforementioned

stakeholders thanto jud ges an d juries, at least with respect to non-pa

tient thir d partie s i njured in automob ile acc idents. Si mi la rl y, individual treatment decisions are best left

to patients and their physicians. "[D]octors should not be asked to weigh notions of liability in their already

complex universe of patient care." [ Lester v. Hall , 970 P. 2d 590, 593 (N.M. 1998)] (internal quotation marks omitted). Accord

ingly , conside

ring the social uti lity

of medic ations, the multitude of

issues that already

must be considered in prescribing decision s, the reality that existing tort law which is applicable to the individual patient should be sufficient to discou rage n egligent prescribing decisions, and the fact that imposing a duty to warn may readily reduce the risk to third

parties, we discern

no logical, sound,
or compelling reas ons, under the present circumstances, to introduce into the "already

complex universe

of patie nt care " the ad

ditional r isk of tort liability to non-patient third parties injur e d in automo

bile accide nts.
McKenzie , 47 P.3d at 1214-15.

As stated earlier, Tennessee courts, like the I

ndiana a nd Hawa ii courts, m

ust consid er public policy in determining the existence or non-existence of a dut y. We find the

India na and Ha

waii courts’ respec tive discu ssions of public policy to be persu asive asthey

relate t o the fac ts o f the pending case.

The public policy considera tions stated in Webb and in McKenzie are relevant to several of the factors weconsider

in resolving duty

issues. F irst, “the importanc e or soci al value of the activity engaged in by defenda nt” is subs tantial. Se

cond, the public policy considera

tions are relevant

to the factor co ncerning “the feasibility of alternative, safer conduct and the r elative costs and burde n s associated

with that conduct; the relative usefulness of the safer conduct; and the relative safety of the alternative conduct.” I n the context of making prescription decisions for individual patients (as opposed to warning

a patien t of adve rseaffects of a prescription), “alter native, safer conduct” is not
so feasib le. Moreover, the “relative costs and burdens” of any such a

lternative conduct could be high. As the I

ndiana a nd Hawa ii courts p ointed out , imposing a duty on a physician to consider third-14-

parties when mak

ing pre scribing

decision s could co mpromise t he phy sician’scare of

in div idual patients. Balancing the various factors we consider in determining duty issues, we

hold that Dr. Magee didnot o we a lega l dut y to the Bu rrough ses in decid ing to prescr ibe the two medications to Mr. Hostetler.
CONCLUSION

In conclusion, we hold that Dr. Magee owed a du

ty to the plaintiff and her husband to warn Mr. Hostetle

r of the r isks of dr iving wh ile under the influence of the two prescribed drug s. However,
we also hold thatDr. Magee owed no duty to the plaintiff and her husband in deciding whether or notto pre scribe the m edications to his patient. Our holdings and analy sis in this case are limited solely to the duty of car

e issue, and we express no opinion as to the ultimate resolution of the other elements of negligence tha t must be proven by the plaintiff.

We affirm the judgment of the Court of Appeals. Consequently , the trial court’s judgment is affirmed in part a

nd rever sed in

part, and the cas e is remanded for fur ther pro ceeding s. The co sts on appeal are taxed equally betwee n the pa rties, one-half to Judy C. Burro ughs and one-ha

lf to Ro be rt W. Ma ge e, M. D. , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ WIL LI AM M. BARK

ER, JUSTICE