1 Th is case was h eard as part of t he Apri l 10, 2003, S. C.A.L. E.S. ( S upreme C ourt A dvancing L egal E ducat ion for S tudent s) project

in Dyers burg, Dyer

County, Tennessee. 

### IN THE SUPREME COURT OF TENNESS EE

AT JACKSON April 10, 2003 Session Heard at Dyersburg 1 

### JUDY C. BURROUGHS v. ROBERT W. MAGEE, M.D. Appeal by P

ermis sion from

the Court

of Appeals Circuit Court for Lauderdale County No. 5005 Joe H. Walker, III, Judge

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

J ANICE M. H OLDER , J., concu rring a nd di ssent ing.

I concur in the resolution of the first issue. I agree that doctors owe a duty to the motoring public to warn their patients of the risks of driving while under the influence of prescribed medication. As to the resolution of the second issue, however, I cannot concur. In my

view, doctors al so o we a duty

to third pa

rties to us e reaso nable ca re in pre scribing

medicati on to their

patients. Moreover, I disa

gree with the “b alancin g appr oach” th at the maj ority

use s in determ ining the threshol d issue of

whether a duty exists.
In a neglig ence action in Ten

nessee, the plain

tiff must prove ea ch of the following

elements : (1) a duty of ca

re 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 sustained by

the plain tiff; (4) causati on in fac t; and (5) proximate, or legal, causation. See Staples v. CBL & Assocs., I nc. , 15 S.W.3d 83, 89 ( Tenn. 20 00). I n this cas e, the fi

rst eleme nt, whether the defendant owes a duty of care to the plaintiff, is at issue. There is a broad dut y toexercis e reaso nable ca re to avo id causin g fore seeable injury to others. See Doe v. Linder Constr. Co. , 845 S.W.2d 173, 178 ( Tenn. 199 2). The e xistence o f duty should be a minima

l legal threshol d for opening the courthouse doors. A defendant owes a duty of care to a plain

tiff whe n that pla intiff is a forese eable vi ctim, meaning that the plaintiff is within the “zone of danger.” See Turner v. Jordan , 95 7 S .W .2d 815 , 81 9 (T enn . 19 97) . In this case, there is an admittedly larg e zone of danger. Clearly, if a phy sician fails to warn a patient that a medication may impair the patient’s a bility to drive, then

members of the motoring public are at risk of injury and are therefore in the “zone of danger.” Likewise, if a phy sician negligently prescribes medication-2-

to a truck driver with a known history of drug abuse, then injuries to t he motoring public are reasona bly foreseeable. Obviously , under these circumstances, members of the motoring public are also in the “zone of danger.” There fore, in my view, the

defendant phy sician in both instances owes a duty of reas onable c are to the plaintif fs as for eseeab le victims

. The majority eng ages in a “balancing appr oach,” as outlined in McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1 995), to determine whether a duty exists. Under this approach, a number of fact ors are consi dered i n asse ssin g wheth er a dut y is owed, inclu ding:

the foreseeable probability of the harm or injury

oc currin g; the possible magnitude of the potential harm or injury ; the importance or social value of

the activity eng aged in by defendant; the usefulness of the conduct to defendant; the feasibility of alternative, safer

conduct and the relative costs and b u rdens associated with that conduct; the relative usefulness of the safer conduct; and the relativesafety of the alterna tive cond uct. McCall , 913 S.W.2d at 153. This multi-factor balancing test for duty requires courts to

balance both legal and case-specific

factual considerations. The existence of duty, howeve r, is a question of law and is undoubtedly the sole pr ovince of the trial court. See Staples , 15 S.W.3d at 89. The question of the reasonableness of the defendant’s conduct (whether a duty

was breached) is undoubtedly the sole province of the finder of fa ct i f reasona ble minds could differ. See id. at 93 (Ho lder, J., c oncurring); Rice v. Sabir , 979 S.W.2d 305, 310 (Tenn. 1998) (Holder, J., dissenting). The balancing test adopted by t he major ity u nnecess arily blurs the line betwe en the trial cou rt’s function in dete

rmining duty and the ju

ry ’s funct ion in determining negligence and conf uses the existence of a duty with the determination of w heth er a duty was breache d. See Coln v. City of Savannah , 966 S.W.2d 34, 47 (Tenn. 1998) (Holder, J., concurring).
For example, for the court

to deter mine “the feasibil ity o f altern ative, sa

fer conduct,” it

must con sider whether

the particular conduct at issue was unsafe, and this dete rmination involves deciding whether a duty was bre ached. However, whether a duty was brea

ched and whether any

such breach was a proximate

cause of the pla

intiff’s injuries r

equiresa much mor

e fact- specific

analy sis that is typ ically ill-suited for

determination by a tria

l court. See Fruge v. Doe , 952 S.W.2d 408, 410 (Tenn. 1997) (holding

that summ ary judg ment is generally inappropriate in negligence cases). The balancing test enc ourag es the tri al court to usurp the role of the jury in weighing the

reasona bleness of the defendant ’s conduct. Finally, I find the majority’s opinion somewhat incongruous. The majority conc ludes that extending a phy sician’sduty to warn p atients of

the side e

ffects o f presc

ribed me dication s t o forese eable

third parties imposes no burden because phy sicia ns alrea dy o we patie

nts the dut

y to warn. Yet the ma

jority fails to us e the sam

e logic when it comes to the duty of c are in prescribing-3-

medication. I do n ot agree with the majority that the a utonomy of phy sicians isimpaired if the same duty of care in prescribing

medication owed to patients is extended to foreseeable third parties. The effect of the distinction is to preclude liability for negligent prescript i on in all future cases before such a claim could reach a jury , regardless of the facts of the case. I am unwilling to so hold.
I would hold tha

t the phy sician in t

his case owes a du

ty to the plaintiffs as members of the motorin g pub lic to use reasonable care in warning his patient of the side effects of prescribed medication and in prescribing the medications themselve s. Although I would hold that the defe ndant is und er a lega l dut y of care to the pl ainti ffs in this case, h e woul d not be lia ble fo r negli ge nce i f breach and

proximate c ausation

cannot be

proven. In my

opinion, under the c ircumsta nces of t his case, both of these inqu iries a re for a jury

to determine. Accordingly , I would hold that summary judgment is imprope

r under e ither the ory

of neg ligenc e alleg ed in this case. Thus, I would aff irm in part a nd rever se in par

t the Court

of Appea ls’ opinion

and rema nd this ca se to the tr

ial cour t.

___________________________________ JANICE M. HOL DER, JUSTI

CE