2025 New Mexico Statutes
Chapter 41 - Torts
Article 5 - Medical Malpractice Act
Section 41-5-3 - Definitions.
Universal Citation:
NM Stat § 41-5-3 (2025)
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As used in the Medical Malpractice Act:

A. "advisory board" means the patient's compensation fund advisory board;

B. "control" means equity ownership in a business entity that:

(1) represents more than fifty percent of the total voting power of the business entity; or

(2) has a value of more than fifty percent of that business entity;

C. "fund" means the patient's compensation fund;

D. "health care provider" means a person, corporation, organization, facility or institution licensed or certified by this state to provide health care or professional services as a doctor of medicine, hospital, outpatient health care facility, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife or a business entity that is organized, incorporated or formed pursuant to the laws of New Mexico that provides health care services primarily through natural persons identified in this subsection. "Health care provider" does not mean a person or entity protected pursuant to the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978] or the Federal Tort Claims Act;

E. "hospital" means a facility licensed as a hospital in this state that offers in-patient services, nursing or overnight care on a twenty-four-hour basis for diagnosing, treating and providing medical, psychological or surgical care for three or more separate persons who have a physical or mental illness, disease, injury or rehabilitative condition or are pregnant and may offer emergency services. "Hospital" includes a hospital's parent corporation, subsidiary corporations or affiliates if incorporated or registered in New Mexico; employees and locum tenens providing services at the hospital; and agency nurses providing services at the hospital. "Hospital" does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

F. "independent outpatient health care facility" means a health care facility that is an ambulatory surgical center, urgent care facility or free-standing emergency room that is not, directly or indirectly through one or more intermediaries, controlled or under common control with a hospital. "Independent outpatient health care facility" includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Independent outpatient health care facility" does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

G. "independent provider" means a doctor of medicine, doctor of osteopathy, chiropractor, podiatrist, nurse anesthetist, physician's assistant, certified nurse practitioner, clinical nurse specialist or certified nurse-midwife who is not an employee of a hospital or outpatient health care facility. "Independent provider" does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act. "Independent provider" includes:

(1) a health care facility that is:

(a) licensed pursuant to the Public Health Act [Chapter 24, Article 1 NMSA 1978] as an outpatient facility;

(b) not an ambulatory surgical center, urgent care facility or free-standing emergency room; and

(c) not hospital-controlled; and

(2) a business entity that is not a hospital or outpatient health care facility that employs or consists of members who are licensed or certified as doctors of medicine, doctors of osteopathy, chiropractors, podiatrists, nurse anesthetists, physician's assistants, certified nurse practitioners, clinical nurse specialists or certified nurse-midwives and the business entity's employees;

H. "insurer" means an insurance company engaged in writing health care provider malpractice liability insurance in this state;

I. "malpractice claim" includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care that proximately results in injury to the patient, whether the patient's claim or cause of action sounds in tort or contract, and includes but is not limited to actions based on battery or wrongful death; "malpractice claim" does not include a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance;

J. "medical care and related benefits" means all reasonable medical, surgical, physical rehabilitation and custodial services and includes drugs, prosthetic devices and other similar materials reasonably necessary in the provision of such services;

K. "occurrence" means all injuries to a patient caused by health care providers' successive acts or omissions that combined concurrently to create a malpractice claim;

L. "outpatient health care facility" means an entity that is hospital-controlled and is licensed pursuant to the Public Health Act as an outpatient facility, including ambulatory surgical centers, free-standing emergency rooms, urgent care clinics, acute care centers and intermediate care facilities and includes a facility's employees, locum tenens providers and agency nurses providing services at the facility. "Outpatient health care facility" does not include:

(1) independent providers;

(2) independent outpatient health care facilities; or

(3) individuals or entities protected pursuant to the Tort Claims Act or the Federal Tort Claims Act;

M. "patient" means a natural person who received or should have received health care from a health care provider, under a contract, express or implied; and

N. "superintendent" means the superintendent of insurance.

History: 1953 Comp., § 58-33-3, enacted by Laws 1976, ch. 2, § 3; 1977, ch. 284, § 1; 2021, ch. 16, § 1; 2021 (2nd S.S.), ch. 5, § 1; 2023, ch. 207, § 1.

ANNOTATIONS
Repeals. — 2021 (2nd S.S.), ch. 5, § 3 repealed Laws 2021, ch. 16, § 1, effective January 1, 2022.

The 2023 amendment, effective June 16, 2023, defined "control" and "independent outpatient health care facility", and revised the definitions of "health care provider," "hospital," "independent provider" and "outpatient health care facility"; added a new Subsection B and redesignated former Subsections B through D as Subsections C through E, respectively; in Subsection D, added "'Health care provider' does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act"; added a new Subsection F and redesignated former Subsections E through L as Subsections G through N, respectively; in Subsection G, added "'Independent provider' does not mean a person or entity protected pursuant to the Tort Claims Act or the Federal Tort Claims Act"; added a new Paragraph G(1); and in Subsection L, after "means an entity that is", added "hospital-controlled and is", and added Paragraphs L(2) and L(3).

The 2021 (2nd S.S.) amendment, effective January 1, 2022, defined "advisory board," "fund," "hospital," "independent provider," "occurrence," and "outpatient health care facility," and modified the definition of "health care provider," as used in the Medical Malpractice Act; added new Subsections A and B and redesignated former Subsection A as Subsection C; in Subsection C, after "physician's assistant", added "certified nurse practitioner, clinical nurse specialist or certified nurse-midwife or a business entity that is organized, incorporated or formed pursuant to the laws of New Mexico that provides health care services primarily through natural persons identified in this subsection"; added new Subsections D and E and redesignated former Subsections B through D as Subsections F through H, respectively; added new Subsections I and J and redesignated former Subsections E and F as Subsections K and L, respectively; and in Subsection L, after "superintendent of insurance", deleted "of this state".

Communication between medical personnel. — Communication between medical personnel is not a matter that requires expert knowledge to understand the standard of care involved and a party may be able to establish that a departure from the standard of ordinary care occurs when a clerical error affects the timeliness or accuracy of a diagnosis. Zamora v. St. Vincent Hospital, 2014-NMSC-035.

Where plaintiff was admitted to defendant's emergency room with abdominal pain; a contract radiologist performed an abdominal scan on plaintiff; the radiology report concluded that defendant had a diverticular abscess and that cancer was a possibility; the emergency physician and surgeon never received the radiologist's report; plaintiff was diagnosed with colon cancer fourteen months later; plaintiff sued defendant alleging that as a consequence of defendant's failure through an administrative inadequacy to forward the radiology report to the surgeon, plaintiff was treated for a diverticular abscess, allowing the cancer to grow; and defendant claimed that plaintiff failed to present expert testimony regarding the standard of care of communication between medical personnel, expert testimony was not required to establish the standard of care because the communication of the diagnosis by one doctor to another is subject to an ordinary negligence standard of care, which does not require expert testimony. Zamora v. St. Vincent Hospital, 2014-NMSC-035.

Malpractice claim. — The controlling inquiry in determining whether a claim constitutes a "malpractice claim" under the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978] is whether the gravamen of the claim is predicated upon the allegation of professional negligence. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112.

Claim for equitable indemnification was a malpractice claim. — Where a patient sued a medical center and a doctor who practiced at the medical center for malpractice and the medical center sued the doctor for equitable indemnification based upon the claim that the doctor negligently caused and was partially liable for the patient's injuries, the equitable indemnification claim was a malpractice claim as that term is used in the Medical Malpractice Act [Chapter 41, Article 5 NMSA 1978]. Christus St. Vincent Reg'l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112.

Defendants other than physicians. — This section's broad definition of health care provider is evidence that the legislature intended to impose liability beyond the context of the physician-patient relationship. When an individual is obliged as a condition of future or continued employment to submit to a medical examination, that examination creates a duty between the examining health care provider and the examinee. Baer v. Regents of Univ. of Cal., 1994-NMCA-124, 118 N.M. 685, 884 P.2d 841.

Negligent misrepresentation and intentional infliction of emotional distress not "malpractice claim(s)". — Claims for negligent misrepresentation and intentional infliction of emotional distress do not first have to be presented to the medical review commission because they do not come within the definition of a malpractice claim. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963, cert. denied, 101 N.M. 362, 683 P.2d 44.

Malpractice required. — The New Mexico Medical Malpractice Act covers injuries arising out of negligence and does not cover claims not based on acts of malpractice. Cordray v. Cnty. of Lincoln, 320 F.Supp.2d 1171 (D.N.M. 2004).

Functional test to distinguish medical or professional negligence from ordinary negligence. — If an act involves the use of special knowledge or skill to make a judgment call as to the appropriate thing to do or not to do, then the act is of a professional nature and claims based on the act must be brought and pursued as a medical or professional negligence action and requires expert testimony to assess the resultant act or failure to act. If not, the act is not of a professional nature and expert testimony is not required. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Timeliness of delivery of laboratory reports. — Expert testimony is required where a plaintiff's claims address the timeliness or urgency of the delivery system of laboratory reports, including any timeliness claims that involve the efficiency and design of the delivery system, except when the required timing is set by a known standard such as an internal policy, contract or governmental regulation. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Maintenance of hospital charts. — Hospitals have a clearly established duty to maintain their patient's medical charts in good order, including the duty to post completed lab tests as received. Assessing a hospital's compliance with its charting duties does not require expert testimony. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Ordinary negligence in delivering laboratory reports. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; in 2001, the decedent's physicians ordered lab tests that were diagnostic of pheochromocytoma; the lab results were never read or acted upon by the physicians; plaintiff sued the hospital and the laboratory for negligent delivery of the lab results in 2001; plaintiff did not raise any matters involving urgency; and plaintiff showed that the laboratory had a routine procedure for delivering lab report to physicians, plaintiff's claims against the hospital and the laboratory could be pursued as ordinary negligence claims and did not require expert testimony. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Opinion of treating physician as to negligence of another treating physician. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; prior to surgery, decedent's consulting surgeon ordered lab tests that would have disclosed the pheochromocytoma; the consulting surgeon scheduled surgery to be conducted by the operating surgeon; the operating surgeon conducted the surgery before the lab results had been received and despite decedent's high potassium levels that posed a chance of death during surgery; and plaintiff sought to elicit opinions from the consulting surgeon as to which acts of the operating surgeon were negligent; the district court did not abuse its discretion in excluding the consulting surgeon's opinions as to the operating surgeon's negligence. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Failure to present expert testimony on the standard of medical care. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; prior to surgery, lab tests had been ordered that would have disclosed the pheochromocytoma; the surgeon conducted the surgery before the lab results had been received and despite decedent's high potassium levels that posed a chance of death during surgery; to establish the standard of care for the surgeon's conduct, plaintiff offered the testimony of an interventional radiology expert who testified that there was no standard practice that an interventional radiologist would use to address the complication that occurred in decedent's surgery; and plaintiff called a general surgeon to establish the standard of care applicable to decedent's surgery, but failed to lay a foundation for the general surgeon's opinion, plaintiff failed to present expert testimony on the standard of care and the district court did not err in directing a verdict in favor of the surgeon. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Comparative negligence of non-parties. — Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; in 2001, the decedent's physicians ordered lab tests that were diagnostic of pheochromocytoma; the lab results were never read or acted upon by the physicians; in 2005, prior to surgery, lab tests had been ordered that would have disclosed the pheochromocytoma; the surgeon conducted the surgery before the lab results had been received; and the district court permitted the jury to compare the alleged negligence of the decedent's 2001 physicians, who were non-parties in the case, with the negligence of the decedent's 2005 surgeons, comparative negligence principles required the district court to consider the comparative negligence of the non-party 2001 physicians. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005.

Law reviews. — For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77).

For note, "Tort Law New Mexico Limits Recovery of Negligent Infliction of Emotional Distress to Sudden, Traumatic Accidents — Fernandez v. Walgreen Hastings Co.," see 30 N.M. L. Rev. 363 (2000).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 77 Am. Jur. 2d Venue § 16.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.

Liability of operating surgeon for negligence of nurse assisting him, 12 A.L.R.3d 1017.

Liability for injuries or death as a result of physical therapy, 53 A.L.R.3d 1250.

Chiropractor's liability for failure to refer patient to medical practitioner, 58 A.L.R.3d 590.

Liability of anesthetist for injuries from spinal anesthetics, 90 A.L.R.3d 775.

What constitutes physician-patient relationship for malpractice purposes, 17 A.L.R.4th 132.

Liability for injury or death allegedly caused by activities of hospital "rescue team", 64 A.L.R.4th 1200.

Recovery in death action for failure to diagnose incurable disease which caused death, 64 A.L.R.4th 1232.

Medical malpractice: who are "health care providers," or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.

Venue of wrongful death action, 58 A.L.R.5th 535.

Coverage of professional-liability or -indemnity policy for sexual contact with patients by physicians, surgeons, and other healers, 60 A.L.R.5th 239.

70 C.J.S. Physicians and Surgeons § 62.

Lester Ex Rel. Mavrogenis v. Hall (N.M. 1998)
Court: New Mexico Supreme Court
Citations: 126 N.M. 404, 970 P.2d 590
Docket Number: 24,653
Date Decided: November 23, 1998
970 P.2d 590 (1998)

126 N.M. 404

1998-NMSC-047

Barbara LESTER, by and through her guardian and conservator, Leo MAVROGENIS, Plaintiff, v. E.B. HALL, M.D., Defendant.

No. 24,653.

Supreme Court of New Mexico.

November 23, 1998.

Plotsky & Dougherty, P.C., David L. Plotsky, Albuquerque, for plaintiff.

*591 Rodey, Dickason, Sloan, Akin & Robb, P.A., Mark C. Meiering, Albuquerque, for defendant.

Miller, Stratvert & Torgerson, P.A., Alice Tomlinson Lorenz, Albuquerque, for Amicus N.M. Medical Society.

William H. Carpenter, Michael B. Browde, Albuquerque, for Amicus N.M. Trial Lawyers Association.

OPINION
SERNA, Justice.

8B1} Plaintiff Barbara Lester, a third party non-patient, alleges that Defendant physician E.B. Hall's negligent treatment of his patient, Merlin Andersen, caused Andersen to injure Lester in an automobile accident. The United States District Court for the District of New Mexico certified the case to this Court pursuant to Rule 12-607 NMRA 1998 (certification from federal courts) on the question of whether Hall owes a legal duty to Lester. This Court has previously held that a physician owes a duty to "persons injured by patients driving automobiles from a doctor's office when the patient has just been injected with drugs known to affect judgment and driving ability" in Wilschinsky v. Medina, 108 N.M. 511, 515, 775 P.2d 713, 717 (1989). Because we do not extend the duty articulated in Wilschinsky to prescription cases under this fact pattern, we answer the certified question in the negative.

Facts and Procedural Background
{2} The District Court certified the case to this Court on the following question of law:

Does a physician owe a legal duty to a non-patient who is injured in a collision with a motor vehicle, operated by the physician's patient, who was last treated by the physician five days before the collision, and whose ability to drive a vehicle allegedly was impaired by medications prescribed by the physician, who (1) allegedly improperly monitored his patient's medication and (2) allegedly failed to warn his patient that the medication could impair the patient's driving ability?
The District Court included a statement of facts relevant to this case:

[Hall] prescribed lithium, in addition to other medications, to his patient while treating him for a medical condition. Factual disputes exist[ ] as to whether [Hall] properly monitored his patient's lithium levels. Failure to do so allegedly could cause the patient to suffer toxicity with side effects that could impair one's driving ability. Factual disputes also exist as to whether [Hall] warned the patient concerning the side-effects of the lithium and the effects that lithium toxicity may have on the patient's ability to perform certain activities, including driving. Five days after [Hall] last treated him, the patient, allegedly in an impaired condition resulting from toxic levels of lithium in his system, drove a motor vehicle and caused an accident in which [Lester] was injured.
{3} The District Court noted that the facts in this case are outside the narrow factual scope of the duty we recognized in Wilschinsky and that the holding of that case should not be construed to create a general duty to the "entire public for any injuries suffered for which an argument of causation can be made." Id. at 515, 775 P.2d at 717. We narrowly drew our holding in order to emphasize that courts should consider with great caution whether the facts of particular cases are appropriate for recognizing physicians' duties to third parties under the principles articulated in Wilschinsky. See id.; see also Turpie v. Southwest Cardiology Assocs., 1998-NMCA-042, ¶ 11, 124 N.M. 787, 955 P.2d 716 (noting that "the Court intended to limit Wilschinsky to its specific circumstance" and declining to "extend its rationale, as such, to the medical malpractice arena"). "[W]e specifically decline[d] to address the issue of whether under any facts, negligently prescribing drugs could give rise to third-party liability." Wilschinsky 108 N.M. at 514, 775 P.2d at 716. We conclude that, under the principles articulated in Wilschinsky and the public policy of New Mexico, Hall does not owe a duty to Lester on the facts of this case, and we therefore join a substantial number of jurisdictions declining to extend physicians' duties to non-patients for prescription-involved situations.

*592 Wilschinsky v. Medina: Physicians' Duty to Third Persons in New Mexico
{4} "Whether a practicing physician in New Mexico owes a duty to third persons who foreseeably may be harmed by the physician's negligence in treatment of his [or her] patient" is addressed under very specific facts in Wilschinsky, 108 N.M. at 513, 775 P.2d at 715. In Wilschinsky, a physician injected two drugs, including a narcotic, into his patient, Medina, who had already ingested a third drug. Id. at 512, 775 P.2d at 714. These "drugs could cloud a person's judgment and physical abilities and create a risk to that person in driving a car." Id. Medina was involved in a serious car accident within a short time (approximately seventy minutes) of receiving the drugs, injuring Wilschinsky, a third party. Id. This Court framed the issue under those facts as "whether a doctor owes a duty to third parties from treatment of an outpatient when the doctor has given the patient an injection of drugs that could clearly impair the patient's ability to reason and to operate an automobile." Id. at 514, 775 P.2d at 716.

{5} Our determination that a duty existed involved a "careful balancing," taking "`into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.'" Id. at 513, 775 P.2d at 715 (quoting Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill. 2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 396 (Ill.1987)). We then applied the balancing test of Kirk and concluded: (1) that the likelihood of a car accident "immediately following injection of a narcotic in combination with other drugs is high;" (2) that when the physician administers the narcotic in his or her office the burden of "guarding against that foreseeable danger is not unreasonable if the doctor is judged by standards of normal medical procedures, rather than subjected to after-the-fact speculative attack;" and (3) that "if the scope of the doctor's duty is limited to the professional standards of acceptable medical practice, the additional burden on the doctor's treatment decisions is negligible." Wilschinsky, 108 N.M. at 515, 775 P.2d at 717. These principles, as applied with caution to cases involving defendant physicians and third party non-patients, establish a general framework under which a court may determine the existence of a duty.

Application of the Wilschinsky Balancing Test
{6} Based on the District Court's statement of relevant facts, we determine that the likelihood of injury to Lester is not foreseeable to the degree required in order to warrant a duty. The likelihood that a patient using prescription lithium will cause a car accident five days after contact with the doctor is considerably more remote in comparison to a patient who, injected with a narcotic, will cause an accident while driving away from the doctor's office. The effects of lithium on driving abilities is far less certain on this record than the effects of narcotics in Wilschinsky.

{7} Although it is not unreasonably burdensome for a physician to guard against injury to the patient or third parties when he or she injects a patient with medication in his or her office, based on this record, we determine that the magnitude of the burden a duty to third parties places upon a physician prescribing lithium is too high. As we stated in Wilschinsky, "unlike the prescription cases, the administration of [narcotic] drugs was within the doctor's presence, in the doctor's office under his direction and timing, making reasonable preventative measures of whatever type easier to implement, and, at the same time, creating a higher degree of patient reliance on the doctor's professional judgment." 108 N.M. at 514-15, 775 P.2d at 716-17 (emphasis added). In this prescription case, Andersen's taking of the drug outside of Hall's control made preventative measures more difficult and reliance on professional judgment more remote. This is a fundamental distinction between a physician medicating a patient in his or her office, where the physician is liable to third parties when he or she is directly aware of the effect of the medication, and here, where the patient takes the medication while not under the direct control and supervision of the physician. The physician in Wilschinsky had the opportunity to directly observe the *593 effects of the medication which he was injecting into his patient. The involvement of the doctor in directly administering the medication and the amount of control he had over his office and the patient in Wilschinsky were much greater relative to this case, in which Hall last saw his patient five days earlier. Further, considering that lithium is not a narcotic (which has a clearer effect on driving) requiring injection (indicative of the doctor's control) but instead is a prescription non-narcotic medication, Hall had significantly less control over how the patient would take it.

{8} The consequences of placing upon Hall the burden of guarding against Lester's injury also militates against extension of the duty. To extend a duty from Hall to Lester under the circumstances presented by this case would have a potentially serious chilling effect on the use of prescription medication in medical care. Another consequence would be the potential intrusion upon the indispensable loyalty which physicians must maintain towards their patients regarding their medical care and treatment decisions. As we stated in Wilschinsky, doctors "should not be asked to weigh notions of liability in their already complex universe of patient care." 108 N.M. at 516, 775 P.2d at 718. In view of these conclusions, together with the other factors of the Wilschinsky analysis reviewed above and the public policy considerations that we discuss below, we reject the extension of Hall's duty.

Public Policy Considerations
{9} Whether Hall owed a duty to Lester "is a question of law and is based upon policy considerations." See Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) (citation omitted). Even if we held that Lester is a foreseeable party to Hall's treatment of Andersen, this would not end the inquiry for the imposition of a duty. "By reference to existing statutes, rules of court, judicial precedent, and other principles comprising the law, we must determine whether the public policy of New Mexico supports a duty that runs" from Hall to Lester. Id.

{10} "Policy determines duty." Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995).

[I]t is the particular domain of the legislature, as the voice of the people, to make public policy.... The judiciary, however, is not as directly and politically responsible to the people as are the legislative and executive branches of government. Courts should make policy in order to determine duty only when the body politic has not spoken and only with the understanding that any misperception of the public mind may be corrected shortly by the legislature.
Id.

{11} The Legislature has clearly demonstrated a concern for the health of the citizens of New Mexico as it is affected by the availability of practicing physicians and assured by the availability of malpractice insurance; thus, the Legislature has acted to limit health care providers' liability. See NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 1997); see also Wilschinsky, 108 N.M. at 516, 775 P.2d at 718 (discussing the purpose of the Medical Malpractice Act). The Legislature's stated "purpose of the Medical Malpractice Act is to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico." NMSA 1978, § 41-5-2 (1976). The Legislature's determination that health care providers' liability must be limited in order to assure New Mexicans' access to medical care is demonstrated by damage caps, see NMSA 1978, § 41-5-6 (1992), a shorter statute of limitations, compare NMSA 1978, § 41-5-13 (1976) (three years), with NMSA 1978, § 37-1-4 (1880) (four years), and required evaluation and decision by the medical review commission, see NMSA 1978, § 41-5-15 (1976). The Legislature's judgment to circumscribe the malpractice liability of health care providers emphasizes the appropriateness of reserving for legislative consideration the expansion of providers' liability to third parties. Although, as with Wilschinsky, we have the authority to recognize a duty, we believe this authority must be exercised sparingly, especially *594 when the Legislature has spoken in a manner inconsistent with the expansion of tort liability for health care providers. Thus, while the factual circumstances of Wilschinsky necessitated our recognition of a duty to third parties for that specific type of situation, the present case does not warrant expansion of that duty.

{12} Lester argues that a duty exists under these facts analogous to the duty of an attorney to a statutory beneficiary of wrongful death proceeds, see Leyba, 120 N.M. at 775-78, 907 P.2d at 179-82, or a contractor's duty to a subsequent owner of a home, Steinberg v. Coda Roberson Constr. Co., 79 N.M. 123, 124-25, 440 P.2d 798, 799-800 (1968). Lester emphasizes foreseeability and predefined standards of conduct as applied to an "unknown but foreseeable third party" and argues that Leyba holds that when elements of foreseeability and a pre-defined standard of conduct are present, the court will allow liability. However, the test adopted in Leyba, if applied to these facts, is actually detrimental to Lester. This Court adopted a combined "threshold third-party-beneficiary test and [a] multi-factor balancing test" for "analyzing the duty owed to statutory beneficiaries by an attorney for the personal representative prosecuting a wrongful death claim." Leyba, 120 N.M. at 775, 907 P.2d at 179. "`[U]nder the modified multi-factor balancing test, the threshold question is whether the plaintiff is an intended beneficiary of the transaction to which the advice pertained. While the answer to the threshold question does not totally resolve the issue, no further inquiry need be made unless such an intent exists.'" Id. (quoting Trask v. Butler, 123 Wash. 2d 835, 872 P.2d 1080, 1084 (Wash.1994)) (emphasis added). In Leyba, we noted that "[i]t is not, of course, the foreseeability of injury that gives rise to duty. It is the intent of attorney and client to benefit the third party that gives rise to a duty imposed by law." Id. at 773 n. 2, 907 P.2d at 177 n. 2. Here, Lester is clearly not the intended beneficiary of Hall's advice to Andersen. Lester focuses only on the foreseeability and standard of conduct discussions of Leyba, but the holding and reasoning of that case fail to support her position. Steinberg is similarly unavailing to Lester, because that case involved an intended class of beneficiaries, i.e. "prospective home buyers." 79 N.M. at 125, 440 P.2d at 800.

{13} Lester argues that Yount v. Johnson, 121 N.M. 585, 915 P.2d 341 (Ct.App. 1996), dispelled any inclination to favor physicians as a class or protect them for damage claims when their negligence injures others. Lester's reliance on Yount is misplaced because Yount did not concern medical malpractice; instead, Yount addressed holding minors to a standard of ordinary care. See id. at 586, 915 P.2d at 342 ("We are asked to decide whether, as a matter of policy, minors who engage in horseplay ... have no duty of reasonable care to one another."). In any case, this Court's conclusion that Hall does not owe Lester a duty under the facts of this case does not favor or protect physicians any more than Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 761, 750 P.2d 118, 122 (1988) (holding that attorneys do not owe a duty to adverse parties), favored or protected attorneys. Instead, Garcia and this case are a recognition of the realities of practice in these two fields and the long-standing proposition that these professionals owe a duty to their clients and that only under particularly limited circumstances are exceptions created for expanding the duty beyond those clients.[1]Leyba and Wilschinsky are exceptions to the general rule articulated in Garcia and the present case. In Garcia, we stated:

*595 A majority of jurisdictions do not hold attorneys liable for professional negligence to third party non-clients.... A duty of care toward non-clients has been found to exist only in those situations where the non-client was an intended beneficiary of the attorney's services, or where it was reasonably foreseeable that negligent service or advice to or on behalf of the client could cause harm to others.
106 N.M. at 761, 750 P.2d at 122 (citations omitted). Similarly, in Wilschinsky, we stated that "courts have recognized two sources of duty for the medical profession to third parties: when a doctor exerts control over a patient, or when a doctor is aware of threats against specific, identifiable third parties." 108 N.M. at 513, 775 P.2d at 715. In Wilschinsky, we concluded that "[l]iability under these facts must stem from the doctor's control over his offices and the administration of powerful drugs in those offices." Id. In other words, we made an exception from the general rule that a physician does not owe a duty to third party non-patients. We decline to extend this exception to prescription cases.

{14} Lester argues that this Court's judgment in Lopez v. Maez, 98 N.M. 625, 631, 651 P.2d 1269, 1275 (1982) (concluding that tavern-keepers have a duty to foreseeable third parties harmed when the tavern-keeper serves an intoxicated individual alcohol), supports a holding that there is a duty in the present case. As Lester notes, however, the duty of such servers stems from their violation of a regulation which prohibits the selling or serving of alcohol to an obviously intoxicated person. See id. at 631, 651 P.2d at 1275. Amicus New Mexico Trial Lawyer's Association (NMTLA) argues that our language regarding "the use of automobiles and the increasing frequency of accidents involving drunk drivers," id. at 632, 651 P.2d at 1275, applies to the problem of using automobiles under the influence of drugs. However, while driving under the influence of alcohol and resulting accidents is a well-documented problem which plagues New Mexico, it is evident that no similar problem exists with respect to lithium toxicity. Further, the results of individuals serving alcohol to an inebriated patron is much more similar to the situation in Wilschinsky, because of the degree of control and direct effects, than the present case, illustrating again the reasoning behind Wilschinsky and why this Court made an exception to the general rule that physicians are not liable to non-patients. It is not similar enough to the present case, however, to justify extending Wilschinsky beyond its facts.

{15} Under the test we articulated in Wilschinsky, we conclude that the injury to Lester was too remote in relation to Hall's actions to warrant extending a duty under these facts. We also conclude that the public policy of New Mexico, as expressed by the Legislature and our earlier cases, is inconsistent with the recognition of a duty in this case. Therefore, we determine as a matter of New Mexico law that Hall's duty to Andersen does not extend to Lester on the facts presented by the District Court.

Third Party Liability: Other Jurisdictions
{16} Lester contends that we should recognize a duty in this case because "the jurisdictions which have addressed this question have almost unanimously found that such a duty does exist." NMTLA supports this assertion,[2] and further argues that jurisdictions *596 which do not extend physicians' duties are either so different from New Mexico in terms of policy or "are so far out of the mainstream that they do not merit consideration." However, a review of foreign jurisdictions that have addressed the narrow question presented under these facts, whether a physician owes a duty to third party non-patients for negligently prescribing medication, reveal a split in authority.

{17} At least four courts have concluded that physicians owe a duty to injured third parties to warn their patients about side effects of prescription medication. See Watkins v. United States, 589 F.2d 214, 219 (5th Cir.1979) (finding a physician owed a duty, based upon Alabama law, to a third party when prescribing Valium, in spite of the fact that the patient had a .16 blood alcohol level); Zavalas v. State Dep't of Corrections, 124 Or.App. 166, 861 P.2d 1026, 1027-29 (Or.Ct. App.1993) (finding physician who negligently prescribed Xanax to his heroin-addicted patient owed duty to third parties); Kaiser v. Suburban Transp. Sys., 65 Wash. 2d 461, 398 P.2d 14, 16 (Wash.1965) (concluding, without a discussion of duty, that physician who failed to warn bus driver of side effects of medication which may cause drowsiness owed a duty to injured bus passenger); Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159, 161-63 (Wis.1988). Schuster involved a psychiatric patient who was killed while driving in a single-car accident that paralyzed her daughter. 424 N.W.2d at 160-61. The court stated that a defendant therapist was negligent by failing to warn of a medication's side effects, failing to warn the patient's family, and failing to seek commitment of the patient. Schuster, 424 N.W.2d at 175. The Court held that "in Wisconsin, a psychotherapist may be held liable in negligence for failure to warn of the side effects of a medication if the side effects were such that a patient should have been cautioned against driving, because it was foreseeable that an accident could result, causing harm to the patient or third parties if the patient drove while using the medication." Id. at 163. Apparently, few courts have created as broad a duty as the Wisconsin court, and it did so based upon very few facts. Id. at 160 (noting that "the facts presented are sparse"). The allegations of the plaintiff in Schuster seem to indicate that the patient was in a psychotic state, placing this case in the category of a duty to warn identifiable third parties of a patient with known dangerous propensities rather than within categories of prescription cases with a duty to warn of side effects. See id.

{18} Lester also relies on Gooden v. Tips, 651 S.W.2d 364, 369-70 (Tex.App.1983), in which the court held that a physician may be liable to third parties injured by the conduct of a patient when the physician failed to warn the patient about the effects of a drug that the doctor prescribed. However, recently, the Supreme Court of Texas significantly narrowed physicians' duties to third parties. In Praesel v. Johnson, 967 S.W.2d 391, 396 (Tex.1998), the court noted that it had "generally limited the scope of the duty owed by physicians in providing medical care to their patients."[3] The court "decline[d] to impose on physicians a duty to third parties to warn an epileptic patient not to drive." Praesel, 967 S.W.2d at 398. Somewhat similarly *597 to our analysis, the court "weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant," and also considered "whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm." Id. at 397-98 (citation omitted). Further, the court noted:

In determining whether to erect a legal duty to warn, we must also consider the efficacy of that warning in preventing injury to third parties. We cannot simply assume that a person who is advised not to drive will actually respond and refrain from driving. The consequences of placing a legal duty on physicians to warn may subject them to substantial liability even though their warnings may not be effective to eliminate the risk in many cases. Unfortunately, many patients do not heed the admonitions of their physicians even though the consequences may be life-threatening to the patient or others.
Id. at 398 (citation omitted). Although the court's language is somewhat ambiguous[4] as to whether or not Gooden is still good law, the recent trend in Texas has limited physicians' duties to third parties. Additionally, Justice Enoch, concurring, asserted that "[w]hen stripped of its duty-to-warn language, Gooden simply holds that a physician owes a duty to a third party to not negligently treat a patient.... Gooden cannot be good authority and we should make that clear to the courts of this state." Id. at 399.

{19} At least four courts have rejected the proposition that physicians owe a duty to third parties for the negligent prescription of drugs to their patients. See Werner, 659 So.2d at 1309-10; Webb v. Jarvis, 575 N.E.2d 992, 995-97 (Ind.1991); Conboy, 567 N.Y.S.2d at 961-62; Kirk, 111 Ill.Dec. 944, 513 N.E.2d at 395-99; see also Estate of Warner, 669 F.Supp. at 235-37; Rebollal v. Payne, 145 A.D.2d 617, 536 N.Y.S.2d 147, 148 (App.Div.1988) (analogizing a county to a physician, finding no duty to a third party killed in an auto accident when the patient received methadone, reasoning that a physician "does not undertake a duty to the public at large"). In Werner, a third party motorist sued a physician, alleging that the doctor failed to warn the patient not to drive while under the influence of an epilepsy medication. Werner, 659 So. 2d at 1309. The court, relying upon Pate, 661 So. 2d at 282, noted that the Florida Supreme Court "specifically limited the physician's duty to known and identifiable third parties as [in Pate] the patient and plaintiff were mother and child," and also noted that even assuming a duty to warn, there was no allegation that the failure to warn the patient not to drive while medicated proximately caused the accident. Id. at 1310-11. In Conboy, a mother sued her physician on behalf of her children, who were passengers in her car when she lost consciousness after taking prescription medication, alleging that he advised her that she could drive. 567 N.Y.S.2d at 961. The court held that the physician had no ability or authority to control his patient's conduct "to give rise to a duty on his part to protect the children." Id.

{20} The Kirk case, from which we adopted the test applied in Wilschinsky, involved a psychiatric patient using prescription drugs in combination with alcohol on the day he was discharged from a hospital. See 111 Ill.Dec. 944, 513 N.E.2d at 390-91. The plaintiff was a passenger injured in the patient's car when it collided with a tree. The court noted that "no patient-doctor relationship" between the defendant doctors and the plaintiff existed, and no "special relationship" (as in another case between a mother-patient and her baby) existed between the patient and the plaintiff. Id. 111 Ill.Dec. 944, 513 N.E.2d at 399. The court also observed that "[o]ther jurisdictions have limited the scope of the physician's duty to warn to situations in which there is, apart from the patient, a specifically identifiable potential victim, rather than holding that a duty exists to the *598 public generally." Id. 111 Ill.Dec. 944, 513 N.E.2d at 398.

{21} The court, in Kirk, held that "a plaintiff cannot maintain a medical malpractice action absent a direct physician-patient relationship between the doctor and plaintiff or a special relationship ... between the patient and the plaintiff." Id. 111 Ill.Dec. 944, 513 N.E.2d at 399. While the plaintiff contended that the doctor need only warn and advise the patient, the court observed that "[t]he plaintiff overlooks that [a duty by doctors to warn] explicitly extends the duties of the doctors ... beyond the patient to the general public." Id. Thus, the court held that a recognized duty, the "first essential" component of a negligence action, was not met by the plaintiff. Id.

{22} The court, in Estate of Warner, relied upon Kirk, and held that a physician who allegedly prematurely released a psychiatric patient that was experiencing barbiturate intoxication did not owe a duty to a third party non-patient because no patient-doctor or special relationship existed. 669 F. Supp. at 237. The court stated that "social and public policy considerations dictate that a duty by members of the medical profession not be expanded to the public in general where liability would be virtually limitless." Id.

{23} Finally, Webb involved a doctor prescribing anabolic steroids to a patient, who, without the doctor's knowledge, battered his wife. 575 N.E.2d at 994. The patient shot the plaintiff, a police officer. Id. The court discussed duty in terms of the relationship between the defendant and plaintiff, foreseeability, and public policy. Id. at 995. The court held that there was no contract, special relationship, privity or reliance between the plaintiff and the doctor, and thus no relationship, that the connection between steroids and violent behavior was not well established, and that on public policy grounds the doctor must be loyal to the patient. Webb, 575 N.E.2d at 995-97. The plaintiff, as does Lester, compared the situation to dram shop cases, but the court rejected this argument because the causal connection is much greater between alcohol and its physical effects. Id. at 997. The court in Webb concluded, and we agree, that the "social utility derived from prescription medication can hardly be disputed and far outweighs the risk of harm to third parties." Id. at 997.

{24} The foregoing cases illustrate the numerous grounds upon which courts have rejected imposing on physicians a duty to third parties for negligently prescribing medication. While we find it unnecessary to adopt specific factors enumerated in these cases, we note that we find the policy considerations underlying these cases to be much more compelling than those cases that operate to extend a general duty from physicians to third parties in prescription cases. Under Wilschinsky and public policy considerations, we hold that Hall's duty to Andersen does not extend to Lester.

Conclusion
{25} We developed an analysis as to whether a physician owes a duty to a non-patient third party in Wilschinsky. Our recognition of a duty in Wilschinsky is an exception to the general rule that a physician owes a duty to his or her patient, and not to third party non-patients. Even assuming, as we do here, that the facts presented by Lester are accurate, we conclude that the likelihood of injury to Lester is too remote from Hall's conduct towards Andersen to warrant expansion of the Wilschinsky duty. Further, public policy considerations, the legislative limitations upon malpractice by health care providers, and the reasoning of other jurisdictions argue against extending the duty which Lester advances. Hall clearly owes a duty to Andersen to act according to the professional standards of acceptable medical practice. However, we hold that under these facts, this duty does not extend to Lester. As a result, we answer the District Court's certified question in the negative.

{26} IT IS SO ORDERED.

FRANCHINI, C.J., BACA, and McKINNON, JJ., concur.

NOTES
[1] Cf. Estate of Warner v. United States, 669 F. Supp. 234, 237 (N.D.Ill.1987) (noting that "a plaintiff cannot maintain a medical malpractice action absent [a] direct ... patient-doctor relationship," with limited exceptions); Werner v. Varner, Stafford & Seaman, P.A., 659 So. 2d 1308, 1309 (Fla.Dist.Ct.App.1995) (noting that "[g]enerally, in Florida, in order to maintain a cause of action against a physician, privity must exist between the plaintiff and physician," except in limited circumstances); Conboy v. Mogeloff, 172 A.D.2d 912, 567 N.Y.S.2d 960, 961-62 (App.Div. 1991) (holding that a doctor had no duty to a non-patient because "a defendant has no legal duty to control the conduct of third persons so as to prevent them from harming others" except when the defendant has the ability and authority to control the third persons' conduct, and noting that privity or some reliance is necessary from the physician to the third party).

[2] We note that some of the cases upon which NMTLA relies do not support the finding of a duty in this case. For example, in Appendix A of its amicus brief, NMTLA lists Mississippi among the jurisdictions which impose a duty on physicians to third parties for the negligent care and treatment of their patients. However, the cited case, Meena v. Wilburn, 603 So. 2d 866, 867-68 (Miss.1992), involved a doctor and nurse who negligently performed a procedure on the incorrect patient, who then sued them; thus, the plaintiff was not a third party injured by a patient who was negligently treated by the doctor, but instead was a plaintiff directly injured by the actions of the defendant. NMTLA also relies upon Pate v. Threlkel, 661 So. 2d 278, 282 (Fla. 1995) even though that case found a duty "when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of [them]." See Hawkins v. Pizarro, 713 So. 2d 1036, 1038 (Fla.Dist.Ct.App.1998) (holding physician had no duty to third party in negligently advising a patient infected with hepatitis because the patient's husband met and married her after the testing, and he was thus not identified or known to the physician). Further, in Krejci v. Akron Pediatric Neurology, Inc., 31 Ohio App.3d 273, 511 N.E.2d 129, 131 (Ohio Ct.App.1987), another case cited by NMTLA, although the court concluded that a physician owed a third party a duty, this conclusion was based upon a statute which the court decided was intended to protect the public, creating a special duty by doctors to use reasonable care in the certification of the driving ability of a patient suffering from epileptic seizures. The court stated that "[i]t is well-established in Ohio that liability in negligence will not lie in the absence of a special duty owed by the defendant[,]" and noted that a physician cannot force a patient not to drive or to take medication properly. Id. at 130-31.

[3] See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 79 (Tex.1997) (declining to permit bystander recovery, holding that a physician did not owe a duty to a husband "to provide competent medical care to [his wife] or [her] fetus"); Bird v. W.C.W., 868 S.W.2d 767, 770 (Tex.1994) (holding that a psychologist who mistakenly concluded that a child had been molested by her father did not owe a duty to the third party father, who had been criminally charged as a result, in part because of the absence of a physician-patient relationship, even though it was foreseeable).

[4] See Praesel, 967 S.W.2d at 398 ("[I]t does not necessarily follow that there is no duty to give a warning. As we observed in Bird, there is little utility in failing to warn patients about effects of a drug or condition that are known to the physician but are likely to be unknown to the patient.").

Wilschinsky v. Medina (N.M. 1989)
Court: New Mexico Supreme Court
Citations: 108 N.M. 511, 775 P.2d 713
Docket Number: 17658
Date Decided: June 29, 1989
775 P.2d 713 (1989)

108 N.M. 511

Tui WILSCHINSKY, Irene Rokstad Wilschinsky, in their own behalf and as Parents and next friends of Zoe Wilschinsky, Taflyn Wilschinsky, and Tara Rokstad, Plaintiffs, v. Helen MEDINA and Michael Straight, M.D., Defendants.

No. 17658.

Supreme Court of New Mexico.

June 29, 1989.

*714 Stephen Durkovich, Albuquerque, for plaintiffs.

Rodey, Dickason, Sloan, Akin & Robb, P.A. and W. Mark Mowery, Santa Fe, for defendant, Medina.

Campbell & Black, P.A., John H. Bemis and Bradford C. Berge, Santa Fe, for defendant, Straight.

Hatch, Beitler, Allen & Shepherd, P.A. and Phyllis A. Dow, Albuquerque, amicus curiae, New Mexico Medical Soc.

OPINION
BACA, Justice.

This certification from the United States District Court raises a fundamental question whether a third party, who is injured by a person under the influence of medications administered to her as an outpatient in a doctor's office, can recover directly from the doctor when and if the doctor failed to follow proper medical procedures, and when and if it can be proven the third party suffered injuries which proximately resulted from that doctor's act of malpractice. The district court certified the following three questions to this court:

1. Does the legal duty of a physician practicing in New Mexico to use reasonable care in treating a patient extend only to the patient or also to others who may foreseeably be harmed by the physician's negligent treatment of the patient? 2. If the legal duty extends to others in addition to the patient, what is the nature and extent of the duty owed to the plaintiffs in this case? 3. If the legal duty extends to others in addition to the patient, does the New Mexico Medical Malpractice Act ... [NMSA 1978, §§ 41-5-1 to 41-5-28 (Repl.Pamp. 1986)] apply to claims based on malpractice asserted by nonpatients against a physician who is qualified under the provisions of the Medical Malpractice Act?
The issues certified arose under the following circumstances. Plaintiffs Tui Wilschinsky and members of his family filed suit in the United States District Court against Helen Medina, alleging Medina was the driver of a car that struck and injured Wilschinsky in the presence of his family. Plaintiffs then filed an amended complaint seeking to join Dr. Michael Straight as an additional defendant, alleging Dr. Straight was negligent in administering to Medina two drugs that have known side effects causing drowsiness and impairment of judgment. Dr. Straight moved to dismiss.

The facts, as developed by depositions of the parties, indicate on the morning of the accident Medina was suffering from a debilitating migraine headache. She had taken the drug Percodan at about 8:00 a.m. Dr. Straight had previously prescribed this drug for Medina's headache problems, which Dr. Straight had been treating since October 1983. On the morning of August 7, 1985, Medina went to Dr. Straight's office and complained the Percodan was not helping. Dr. Straight administered by injection a drug named Meperidine, which is composed of equal parts of Phenergan and Demerol. When Medina complained of nausea, Dr. Straight administered a second drug, either Vistaril or Tigan, to combat Medina's nausea. It is unclear exactly how long Medina remained in the office, and exactly how much time elapsed between the administration of these drugs and her accident. According to Dr. Straight, roughly seventy minutes may have passed between the first injection and Medina's accident. Again according to Dr. Straight, the drug Meperidine would have peaked in Medina's system between thirty and fifty minutes after the injection. Meperidine's effects may have been enhanced by both prior and subsequent drugs.

The above facts taken together show that Dr. Straight administered drugs in his office to Medina, which drugs could cloud a person's judgment and physical abilities and create a risk to that person in driving a car; that Medina was involved in a serious car accident within a short time of receiving medication; and that Wilschinsky suffered injuries from that accident. Based on these facts, we granted certification because whether a doctor may owe a duty to *715 a third person such as Wilschinsky involves an important interpretation of New Mexico law, and our answer to that question would materially advance the federal litigation by resolving whether Dr. Straight can be joined in the Wilschinskys' lawsuit.[1]

I
Whether a practicing physician in New Mexico owes a duty to third persons who foreseeably may be harmed by the physician's negligence in treatment of his patient is an issue of first impression in this state. In addressing this question generally, we focus on the patient-care setting that gave rise to this certification. The recent growth in use of outpatient clinics, day surgery units, and extensive office procedures is a new development in health care, unforeseen at the time when most state legislatures adopted malpractice legislation. It is encouraged by insurance policies that offer only partial coverage for patients admitted into hospitals over night. As more extensive medical procedures are shifted to an outpatient setting, the risk of injuries to the general public from patients driving under the influence of drugs increases.

The existence of duty is a question of law. Schear v. Board of County Comm'rs, 101 N.M. 671, 687 P.2d 728 (1984). In analyzing whether a duty exists we note the following language from Prosser:

Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.
W. Page Keeton, Prosser & Keeton on the Law of Torts, § 53, at 359 (5th ed. 1984) (footnote omitted).

The finding of a duty involves the court in a careful balancing. We must "take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant." Kirk v. Michael Reese Hosp. & Medical Center, 117 Ill. 2d 507, 526, 111 Ill.Dec. 944, 953, 513 N.E.2d 387, 396 (1987). At the outset we note the salient alleged facts: testimony was offered to show the drugs administered included at least one narcotic; this narcotic's effect may have been enhanced by two additional drugs in Medina's blood stream; the effect of the narcotic would have peaked near the time of the accident; and the drugs have side effects that could impair a person's ability to make rational judgments and impair a person's ability to drive an automobile.

Heretofore, courts have recognized two sources of duty for the medical profession to third parties: when a doctor exerts control over a patient, or when a doctor is aware of threats against specific, identifiable third parties. In the control cases, courts have relied upon Section 315 of the Restatement (Second) of Torts to find a special relationship between doctor and patient, which creates a special duty to control that patient's actions. Restatement (Second) of Torts § 315 (1965). This doctrine, holding institutions and doctors potentially liable for patients with known "dangerous propensities" has been recognized in New Mexico. See Kelly v. Board of Trustees, 87 N.M. 112, 529 P.2d 1233 (Ct.App.), cert. denied, 87 N.M. 111, 529 P.2d 1232 (1974); see also Stake v. Woman's Div. of Christian Serv., 73 N.M. 303, 387 P.2d 871 (1963). We do not find the facts here to raise an issue of patient control. Liability under these facts must stem from the doctor's control over his offices and the administration of powerful drugs in those offices, not from a duty to control a patient with known dangerous propensities.

A second, though not mutually exclusive, line of cases has followed from Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976). In Tarasoff, a psychiatrist, aware of specific threats to the life of an individual, *716 abided by professional ethics in failing to disclose his patient's threats to authorities or to the person threatened. The court found the doctor breached a duty to warn when a specific, identifiable third party was known to the doctor. Again, this duty to warn specific, identifiable third parties is not an issue raised by the facts of this certification. The only issue raised by these facts is whether a doctor owes a duty to third parties from treatment of an outpatient when the doctor has given the patient an injection of drugs that could clearly impair the patient's ability to reason and to operate an automobile.

Cases from other jurisdictions have addressed similar, though not precisely equivalent facts. In Gooden v. Tips, 651 S.W.2d 364 (Tex. Ct. App. 1983), the Texas Court of Appeals concluded that a doctor, who had prescribed quaaludes to a patient with a known propensity to abuse drugs, might be liable to a third party injured in an automobile accident. The Gooden court specifically found no duty "to control the actions of the patient," but only a duty to warn the patient. Gooden, 651 S.W.2d at 371. The Gooden court relied upon authority from several jurisdictions. See Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521 (Tenn. 1980) (cause of action for indemnity by trucking company for doctor's negligent failure to perform an adequate physical upon company's driver); Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973) (cause of action by injured pedestrian against doctor for failing to diagnose patient's epileptic condition); Kaiser v. Suburban Transp. Sys., 65 Wash. 2d 461, 398 P.2d 14 (1965) (cause of action for failing to warn patient of dangerous side effects of drug prescribed to bus driver).

Both Gooden and Kaiser created third-party liability when a doctor apparently had negligently prescribed a potentially dangerous drug. The Illinois Supreme Court, however, recently declined to find third-party liability for the allegedly negligent prescription of drugs to a psychiatric patient whose accident on the morning of his release injured a passenger. Kirk, 117 Ill. 2d at 53, 111 Ill.Dec. at 956, 513 N.E.2d at 399. That case may be distinguishable from an evolving policy to create a duty in that the driver-patient had consumed an alcoholic beverage after his release and prior to the accident. In any case, we note the facts before us do not involve prescription and we specifically decline to address the issue of whether under any facts, negligently prescribing drugs could give rise to third-party liability. This case raises the third-party liability issue in the context of injections given in a doctor's office and we turn, therefore, to those few cases which have discussed injuries involving patients who have been treated or injected in the doctor's care.

In Joy v. Eastern Maine Medical Center, 529 A.2d 1364 (Me. 1987), the Supreme Court of Maine allowed a third-party cause of action against a doctor whose treatment included fitting his patient with an eyepatch. The court wrote "when a doctor knows, or reasonably should know that his patient's ability to drive has been affected, he has a duty to the driving public." Id. at 1366. In Welke v. Kuzilla, 144 Mich.App. 245, 375 N.W.2d 403 (1985), the Michigan Court of Appeals found that an injection given on the evening prior to the accident created a cause of action in malpractice for the third-party victim. The facts in these two cases are markedly different from the present case.

The facts of this certification present a stronger argument for finding a duty than any of the cases described above. Unlike Joy, facts here do not suggest that Medina should have known the extent of her risk in accepting medication. In Joy, the doctor argued the eyepatch created an obvious impairment for which no reasonable person required a warning. Here, one side effect of the drugs may have been impairment of the patient's ability to reason. In addition, it will require medical testimony to explain the probable diminishment of capacity when Demerol is administered, either by itself, or in combination with other drugs. Unlike Welke, facts here also suggest a stronger argument for proximate cause, as Dr. Straight injected Medina within seventy minutes of the accident. Finally, unlike the prescription *717 cases, the administration of these drugs was within the doctor's presence, in the doctor's office under his direction and timing, making reasonable preventative measures of whatever type easier to implement, and, at the same time, creating a higher degree of patient reliance on the doctor's professional judgment.

Having canvassed other jurisdictions, we return to the balance set forth from the Kirk opinion: the likelihood of injury, the reasonableness of the burden of guarding against it, and the consequences of burdening the defendant. The likelihood of a vehicular accident immediately following injection of a narcotic in combination with other drugs is high. When the narcotic is administered by a doctor in his office, the burden of guarding against that foreseeable danger is not unreasonable if the doctor is judged by standards of normal medical procedures, rather than subjected to after-the-fact speculative attack. Finally, if the scope of the doctor's duty is limited to the professional standards of acceptable medical practice, the additional burden on the doctor's treatment decisions is negligible.

The dissent reaches a different conclusion concerning the burdens placed on doctors by this opinion. The dissent expresses concern about the burdens already placed on a doctor's practice by threat of litigation from patients. We are not, however, addressing the larger issues of malpractice in this opinion, and by recognizing a duty based on standards for malpractice we are attempting to balance fairness to the innocent injured person with fairness to the doctor's treatment decisions. The dissent also claims lawyers are not subject to liability to third parties and are treated differently. The comparison to lawyers is not apt. Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988), cited by the dissent, involved a litigant's attempt to sue his adversary's attorney for that attorney's alleged bad acts during a trial. This court specifically weighed the harm suffered by the litigant against the policy of holding lawyers to a single standard of behavior. Lawyers are bound to zealously represent their clients, with ethical codes and rules to define the limits of that representation, and disciplinary proceedings to punish lawyers' excesses. To have held lawyers liable to the party opposing the lawyers' clients would have been to imply representation in direct conflict with the representation actually undertaken. The dissent's analogy to Garcia might have been apt for a situation more like Tarasoff, when the court imposed on psychiatrists a duty to warn third parties despite their professional code of client confidentiality. Here, however, we have defined the doctor's duty in terms of medical standards already in place. Finally, contrary to the dissent's characterization of Garcia, that opinion recognized third-party causes of action against lawyers when lawyers were engaged in will drafting and examination of titles. The case, therefore, cannot be cited for the overbroad interpretation that this court rejected all third-party causes of action against lawyers.

The additional burden placed on doctors by this opinion is negligible because the duty we recognize is consistent with professional standards in the medical community and the liability falls under the rubric of the Medical Malpractice Act (see below). Applying the Kirk balance, therefore, we find Dr. Straight owed a duty to the driving public when he administered these drugs to Helen Medina under these particular circumstances.

II
Having recognized a duty under these facts, we next address the scope of that duty. First, we re-emphasize the narrow factual scope of the duty recognized. The duty is not to the entire public for any injuries suffered for which an argument of causation can be made. The duty specifically extends to persons injured by patients driving automobiles from a doctor's office when the patient has just been injected with drugs known to affect judgment and driving ability. No other facts are before us, and this case may not be construed to create a general duty to the public.

Second, we note factual issues that preclude our finding as a matter of law the *718 duty would be adequately discharged by a warning. The parties contest whether Dr. Straight did warn his patient, but even if he did the adequacy of a warning is a fact issue when evidence suggests the drugs may have affected the patient's ability to comprehend the warning. It is claimed the physician should have explained that the patient would have to remain under observation until fit to drive, or that no injection would be given until transportation was available, or that other similar measures should have been taken to safeguard the patient. The timing and adequacy of any warnings, if given, are fact questions for the jury to decide in order to determine the proportionate fault, if any, of the physician.

In determining what measures might have been taken, we find the standard for argument to the jury should be that which the medical community has determined. We cannot intrude on the medical profession's own careful balancing of treatment and risk. We endorse, therefore, those policies which already exist for the administration of powerful drugs in outpatient settings. Medical standards for the administration of drugs must define the duty owed by Dr. Straight, both as to his patient, and to the Wilschinskys. We do not live in a risk-free society, but rather a risk-allocative one. Where doctors are bound to administer to the sick and take an oath to that effect, they should not be asked to weigh notions of liability in their already complex universe of patient care. If, on the other hand, a doctor fails to meet the standards of his own community in caring for his patient, his liability is defined by the Medical Malpractice Act, with limits set regardless of the injuries suffered or the parties affected.

III
The final question certified to this court is whether the Medical Malpractice Act applies to this action. No language in the Act specifically addresses the issue of third-party recovery for an act of malpractice. In reviewing the Act, we construe all of its provisions together in order to determine the intent of the legislature on this issue. Quintana v. New Mexico Dep't of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983), rev'd on other grounds sub nom. Devine v. New Mexico Dep't of Corrections, 866 F.2d 339 (10th Cir.1989).

The New Mexico Medical Malpractice Act was enacted by the legislature in order to meet an insurance crisis, to promote health care in New Mexico by providing a framework for tort liability with which the insurance industry could operate. See NMSA 1978, § 41-5-2 (Repl.Pamp. 1986); see also Medical Malpractice Legislation in New Mexico, 7 N.M.L.Rev. 5 (1976-77). Through several procedural measures and by establishing a limitation on full recovery for malpractice injury, the Act restricted and limited plaintiffs' rights under the common law. The established principle of strict statutory construction for acts passed in derogation of the common law would apply. 3 N. Singer, Sutherland Statutory Construction, § 61.01 (4th ed. 1985).

While the legislature did not directly address potential recovery by third parties, one provision of the Act might be read to exclude third-party actions from the Act's ambit. Under paragraph C of the definitional section, 41-5-3, the legislature wrote: "`[M]alpractice claim' includes any cause of action arising in this state against a health care provider for medical treatment, lack of medical treatment or other claimed departure from accepted standards of health care which proximately results in injury to the patient[.]" Read to this point, the legislature's definition clearly extends the Act's coverage to acts of malpractice resulting in injury to the patient.

After language explicating the range of allowable patient claims, the definition under Section 41-5-3(C) continues: "`[M]alpractice claim' does not include a cause of action arising out of the driving, flying or nonmedical acts involved in the operation, use or maintenance of a vehicular or aircraft ambulance[.]" By this language, the legislature created a specific exception or a negative definition for "malpractice claim."

The facts of this certification arise from a health care provider's potentially negligent *719 acts in the administration of medical treatment resulting in an injury to a third party. Thus, the activity at issue falls neither within the articulated ambit of the statutory definition, nor within the ambit of the exclusion. Under principles of narrow construction, generally we would find this cause of action is not covered by the definitional section and is therefore outside the Act. See 1A, N. Singer, Sutherland Statutory Construction, § 20.08 (4th ed. 1985) (definitions of legislature binding on the courts).

Here, however, we note several factors which should affect our analysis. First, the nonmedical nature of the articulated exclusion in paragraph C is at least some evidence the legislature foresaw and intended broad application of the concept of a "malpractice claim." Second, the specific cause of action recognized by this court did not exist in 1976. Therefore, the legislature did not intentionally fail to address this issue. Third, if we recognize a third-party cause of action for the Wilschinskys and it is not covered by the Act, a third party would be placed in a better position to achieve full recovery from an act of malpractice than would the patient malpracticed upon. Finally, the clear intent of the legislature, as articulated in Section 41-5-2, was to make malpractice insurance available to health care providers.

While courts normally are bound to follow legislative definitions, they are not bound when a definition would result in an unreasonable classification. 1A, N. Singer, Sutherland Statutory Construction § 20.08 (4th ed. 1985). Here, an unreasonable classification would result, as only patients with direct injuries from acts of malpractice would be denied full recovery under the Act. The Supreme Court of Arkansas has stated that courts must follow statutory definitions "unless the definition is arbitrary, creates obvious incongruities in the statute, defeats a major purpose of the legislation or is so discordant to common usage as to generate confusion." Bird v. Pan Western Corp., 261 Ark. 56, 60, 546 S.W.2d 417, 419 (1977). A major purpose of the Medical Malpractice Act was to meet a perceived insurance crisis and to regulate the tort liability of medical professionals for acts of medical malpractice. When we find, as we do here, a clash between the intent of the legislature and its own definitional section, we seek to harmonize the two. Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968). We, therefore, read the language "which proximately results in injury to the patient" as not having been intended to restrict the definition of "malpractice claim" to only those instances resulting in injury to patients. Instead, based on the causes of actions that were known to the legislature at the time this act was adopted, we find this language to refer to the legal standards of proximate cause, requiring causes of action to survive that test. We find the legislature intended to cover all causes of action arising in New Mexico that are based on acts of malpractice.

Other jurisdictions, faced with questions about the coverage of malpractice procedures to third-party actions have required those actions to proceed through malpractice. See Faden v. Robbins, 88 A.D.2d 631, 450 N.Y.S.2d 238 (1982) (chiropractor's third-party complaint against physicians for alleged malpractice on chiropractor's patient); Gobble v. Baton Rouge Hosp., 415 So. 2d 425 (La. Ct. App. 1982) (loss of consortium claim to proceed through malpractice where alleged malpractice caused death); Davis v. Acton, 373 So. 2d 952 (Fla. Dist. Ct. App. 1979) (third-party complaint against consulting physician). While both New York and Florida have different statutory language than New Mexico, the Louisiana court interpreted language almost identical to that found in the New Mexico Medical Malpractice Act. See LA.Rev.Stat. Ann. §§ 40:1299.31-40:1299.48 (West 1977). The Louisiana court found language allowing claims to be brought by "a patient or his representative" did not restrict the class of persons who might bring an action. Gobble, 415 So. 2d at 426. Even when the language reviewed by other courts has not been identical to that reviewed by this court, the thrust of those decisions has been similar. The Florida court wrote, "the gravamen of the third-party action is *720 predicated upon the allegation of professional negligence by a practicing physician." Davis, 373 So. 2d at 953. We find this underlying logic compelling. See also Welke v. Kuzilla, 144 Mich. App. 245, 375 N.W.2d 403 (1985); Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983).

SUMMARY
We find, as a matter of law, a duty was owed to the public who might be injured by a patient's impaired ability to drive when a doctor administered powerful drugs in his office. The doctor had an obligation to follow acceptable medical procedures. The Wilschinskys' cause of action falls within the purpose of the New Mexico Medical Malpractice Act and should be pursued according to its guidelines.

SOSA, C.J., concurs.

RANSOM, J., specially concurs.

SCARBOROUGH, J., dissents.

RANSOM, Justice (specially concurring).

I specially concur to express chagrin that seeds of further interprofessional discord needlessly may be sewn by certain language in the dissent. Justice Scarborough asserts that the majority opinion has extended the liability burden of physicians despite this Court's having rejected extension of the burden of lawyers to include liability to the courtroom adversary of an attorney's client. In point of fact, the opinion of this Court to which the dissent refers, Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988), was decided on public policy considerations that support preservation of a lawyer's special allegiance to a client in an adversary proceeding. As Garcia specifically observes, appropriate means do exist to redress a grievance concerning an attorney's alleged misconduct toward the adversary. "Within the action out of which a grievance arises, remedies are provided for the benefit and relief of parties wronged through reasonable reliance upon misrepresentations of an adversary's attorney." 106 N.M. at 763, 750 P.2d at 124.

It is certainly no extension of the liability burden of physicians under tort law to say that a doctor has a duty to refrain from optional outpatient administration of mind altering medication that, under the circumstances, gives rise to an unreasonable risk of injury to others. Reasonableness turns on the foreseeability of injury and the options available to the doctor in treatment of the patient. The conduct of the physician is measured by what a reasonably well-qualified doctor may do under similar circumstances.

With respect to the propriety of our accepting certification from the federal court, we have recently held by per curiam opinion that:

The intent of the certification of facts and determinative answer requirements is that this Court avoid rendering advisory opinions. Relative to the first requirement, it is sufficient if the certification of facts and the record contain the necessary factual predicates to our resolution of the question certified, and it is clear that evidence admissible at trial may be resolved in a manner requiring application of the law in question.
Schlieter v. Carlos, 108 N.M. 507, 508, 775 P.2d 709, 710 (1989). Here, it is absolutely clear from the record that evidence admissible at trial will require a jury instruction in accordance with the law of this opinion, and that the jury's findings in accordance with that law will determine the proportionate liability, if any, of the defendant doctor. Our resolution of this legal issue will materially advance the ultimate termination of the litigation. See id.

SCARBOROUGH, Justice, dissenting.

I respectfully dissent from the majority opinion. The majority expand the scope of a physician's duty to third parties and thus significantly enlarge a physician's potential liability. In assessing the consequences of their holding, the majority conclude that "the burden on the doctor's treatment decisions is negligible." In fact, one can readily assume just the opposite: the burdens already imposed on treatment decisions by physicians have driven many from the practice *721 of medicine, and the majority opinion will further exacerbate the existing medical liability crisis. Along this same line of reasoning, the majority note that we live in a "risk-allocative" society. While this may be true, consideration of such issues is a task best left to the legislature rather than to the judiciary. There are no data before us from which this Court can appropriately determine "risk-allocative" issues.

The majority assume that there are facts before us. This is not so. There has been no fact finding by the trial court. We do not know what the facts are or will be. The majority opinion, therefore, is little more than an advisory opinion decided in a factual vacuum in contravention of our longstanding rule that appellate decisions be fact specific.

The majority's assumption that the "recent growth" of new and unforeseen practices by physicians somehow justifies the destruction of patient-client liability constraints finds no support in the facts before us, or in any facts of which we could properly take judicial notice. From time immemorial, patients have been treated in their homes or in the offices of physicians and clinics of physicians. There is no factual basis upon which this court can extend tort liability of physicians to include third parties.

We have declined to burden attorneys with tort liability to third parties. Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988). This Court in Garcia v. Rodey was not prepared to extend the legal duty of an attorney to non-client thirty parties who may be injured by the services or advice of the attorney to this client. I am not prepared to extend the liability burden of physicians which the majority opinion would impose.

While I agree with the majority that the limits imposed on a physician's liability are appropriately set by the Medical Malpractice Act, I believe this issue is not ripe for our resolution. The question of liability limits is not before us by certification, and the issue has not been addressed by the parties in any manner.

My disagreement with the majority opinion notwithstanding, I further conclude that the instant case is not properly before us. Three legal questions were certified to this Court for our response, but the certification request entered by the U.S. District Court was not accompanied by a sufficient factual predicate in the form of findings or stipulated facts. And for this reason I would decline to accept certification.

In New Mexico, the process of certification from federal courts is governed by SCRA 1986, 12-607, which implements NMSA 1978, Section 34-2-8 (Repl.Pamp. 1981). SCRA 12-607 requires a certification request to include "either a statement by the certifying court of the facts relevant to the question certified, showing the nature of the controversy in which the questions arose, or a stipulation of such facts by the parties, which has been approved by the certifying court." SCRA 12-607(C)(3). The certification request before us does not include a stipulation of the facts, nor does the certifying court provide sufficient nondisputed facts relevant to the questions of law certified to us. It is essential that the material facts have been either agreed upon or determined by the certifying court before we attempt to form an authoritative statement of New Mexico law on the issues. I strongly disfavor giving an advisory opinion unless it is fact intensive.

I find considerable support for my conclusion. "Certification would be a pointless exercise unless the state court's answers are regarded as an authoritative and binding statement of state law." 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4248 at 179 (2d ed. 1988). Without sufficient, nondisputed facts we cannot authoritatively answer the questions of law before us. I would not go as far in this regard as the Supreme Court of Wyoming which has said it will not answer a certified question of state law "until there is nothing left for the [federal] court to do but apply our answer to the question and enter judgment consistent with the answer or answers." In re Certified Question from the District Court, 549 P.2d 1310, 1311 (Wyo. 1976). Instead, I *722 would look to the Supreme Court of Maine, which was one of the first state courts to adopt certification procedures more than twenty-five years ago. In 1966, the Maine court held:

If we are to participate and yet not render purely advisory opinions, we think it will be incumbent upon us to respond to questions only when it is apparent from the certification itself that all material facts have been either agreed upon or found by the court and that the case is in such posture in all respects that our decision as to the applicable Maine law will in truth and in fact be "determinative of the cause" as the statute conferring jurisdiction upon us requires.
In re Richards, 223 A.2d 827, 833 (Me. 1966). See also R. Field, V. McKusick & L. Wroth, Maine Civil Practice § 76B Commentary (1967 Supp.).

The absence of sufficient nondisputed facts occurs most often in certifications from federal district courts. Certification requests from federal appellate courts will normally include findings of facts. The burden to provide sufficient nondisputed facts rests with the district courts:

Due regard for the interests of the states in conserving their judicial resources requires that the district courts be careful in their use of certification procedures. This is particularly true in cases in which the unclear legal issue is identified in advance of trial and there are factual disputes to be resolved. (Emphasis added)
1A J. Moore, W. Taggart, A. Vestal, J. Wicker & B. Ringle, Moore's Federal Practice § 0.203[5] Pt. 2 at 2162 (2d ed. 1989). Whether a certification request provides sufficient nondisputed facts must of necessity be determined on a case-by-case basis. An example of an effective certification request from a district court to this Court can be seen in Hamilton Test Systems, Inc. v. City of Albuquerque, 103 N.M. 226, 704 P.2d 1102 (1985), which provided stipulated facts. This Court should not make common law in a vacuum. It is, therefore, imperative that we preserve the procedural parameters for certification we have set forth in SCRA 1986, 12-607.

Absent a certification request providing sufficient, nondisputed facts, I do not believe we should contemplate rendering an opinion in the instant case. I dissent.

NOTES
[1] We note that while certification was granted in this case prior to this court's per curiam opinion in Schlieter v. Carlos, ___ N.M ___, 775 P.2d 709 (1989), we could have granted certification in this case by applying the standards articulated in Schlieter.

Lester Ex Rel. Mavrogenis v. Hall (N.M. 1998)
Court: New Mexico Supreme Court
Citations: 126 N.M. 404, 970 P.2d 590
Docket Number: 24,653
Date Decided: November 23, 1998
970 P.2d 590 (1998)

126 N.M. 404

1998-NMSC-047

Barbara LESTER, by and through her guardian and conservator, Leo MAVROGENIS, Plaintiff, v. E.B. HALL, M.D., Defendant.

No. 24,653.

Supreme Court of New Mexico.

November 23, 1998.

Plotsky & Dougherty, P.C., David L. Plotsky, Albuquerque, for plaintiff.

*591 Rodey, Dickason, Sloan, Akin & Robb, P.A., Mark C. Meiering, Albuquerque, for defendant.

Miller, Stratvert & Torgerson, P.A., Alice Tomlinson Lorenz, Albuquerque, for Amicus N.M. Medical Society.

William H. Carpenter, Michael B. Browde, Albuquerque, for Amicus N.M. Trial Lawyers Association.

OPINION
SERNA, Justice.

8B1} Plaintiff Barbara Lester, a third party non-patient, alleges that Defendant physician E.B. Hall's negligent treatment of his patient, Merlin Andersen, caused Andersen to injure Lester in an automobile accident. The United States District Court for the District of New Mexico certified the case to this Court pursuant to Rule 12-607 NMRA 1998 (certification from federal courts) on the question of whether Hall owes a legal duty to Lester. This Court has previously held that a physician owes a duty to "persons injured by patients driving automobiles from a doctor's office when the patient has just been injected with drugs known to affect judgment and driving ability" in Wilschinsky v. Medina, 108 N.M. 511, 515, 775 P.2d 713, 717 (1989). Because we do not extend the duty articulated in Wilschinsky to prescription cases under this fact pattern, we answer the certified question in the negative.

Facts and Procedural Background
{2} The District Court certified the case to this Court on the following question of law:

Does a physician owe a legal duty to a non-patient who is injured in a collision with a motor vehicle, operated by the physician's patient, who was last treated by the physician five days before the collision, and whose ability to drive a vehicle allegedly was impaired by medications prescribed by the physician, who (1) allegedly improperly monitored his patient's medication and (2) allegedly failed to warn his patient that the medication could impair the patient's driving ability?
The District Court included a statement of facts relevant to this case:

[Hall] prescribed lithium, in addition to other medications, to his patient while treating him for a medical condition. Factual disputes exist[ ] as to whether [Hall] properly monitored his patient's lithium levels. Failure to do so allegedly could cause the patient to suffer toxicity with side effects that could impair one's driving ability. Factual disputes also exist as to whether [Hall] warned the patient concerning the side-effects of the lithium and the effects that lithium toxicity may have on the patient's ability to perform certain activities, including driving. Five days after [Hall] last treated him, the patient, allegedly in an impaired condition resulting from toxic levels of lithium in his system, drove a motor vehicle and caused an accident in which [Lester] was injured.
{3} The District Court noted that the facts in this case are outside the narrow factual scope of the duty we recognized in Wilschinsky and that the holding of that case should not be construed to create a general duty to the "entire public for any injuries suffered for which an argument of causation can be made." Id. at 515, 775 P.2d at 717. We narrowly drew our holding in order to emphasize that courts should consider with great caution whether the facts of particular cases are appropriate for recognizing physicians' duties to third parties under the principles articulated in Wilschinsky. See id.; see also Turpie v. Southwest Cardiology Assocs., 1998-NMCA-042, ¶ 11, 124 N.M. 787, 955 P.2d 716 (noting that "the Court intended to limit Wilschinsky to its specific circumstance" and declining to "extend its rationale, as such, to the medical malpractice arena"). "[W]e specifically decline[d] to address the issue of whether under any facts, negligently prescribing drugs could give rise to third-party liability." Wilschinsky 108 N.M. at 514, 775 P.2d at 716. We conclude that, under the principles articulated in Wilschinsky and the public policy of New Mexico, Hall does not owe a duty to Lester on the facts of this case, and we therefore join a substantial number of jurisdictions declining to extend physicians' duties to non-patients for prescription-involved situations.

*592 Wilschinsky v. Medina: Physicians' Duty to Third Persons in New Mexico
{4} "Whether a practicing physician in New Mexico owes a duty to third persons who foreseeably may be harmed by the physician's negligence in treatment of his [or her] patient" is addressed under very specific facts in Wilschinsky, 108 N.M. at 513, 775 P.2d at 715. In Wilschinsky, a physician injected two drugs, including a narcotic, into his patient, Medina, who had already ingested a third drug. Id. at 512, 775 P.2d at 714. These "drugs could cloud a person's judgment and physical abilities and create a risk to that person in driving a car." Id. Medina was involved in a serious car accident within a short time (approximately seventy minutes) of receiving the drugs, injuring Wilschinsky, a third party. Id. This Court framed the issue under those facts as "whether a doctor owes a duty to third parties from treatment of an outpatient when the doctor has given the patient an injection of drugs that could clearly impair the patient's ability to reason and to operate an automobile." Id. at 514, 775 P.2d at 716.

{5} Our determination that a duty existed involved a "careful balancing," taking "`into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.'" Id. at 513, 775 P.2d at 715 (quoting Kirk v. Michael Reese Hosp. & Med. Ctr., 117 Ill. 2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 396 (Ill.1987)). We then applied the balancing test of Kirk and concluded: (1) that the likelihood of a car accident "immediately following injection of a narcotic in combination with other drugs is high;" (2) that when the physician administers the narcotic in his or her office the burden of "guarding against that foreseeable danger is not unreasonable if the doctor is judged by standards of normal medical procedures, rather than subjected to after-the-fact speculative attack;" and (3) that "if the scope of the doctor's duty is limited to the professional standards of acceptable medical practice, the additional burden on the doctor's treatment decisions is negligible." Wilschinsky, 108 N.M. at 515, 775 P.2d at 717. These principles, as applied with caution to cases involving defendant physicians and third party non-patients, establish a general framework under which a court may determine the existence of a duty.

Application of the Wilschinsky Balancing Test
{6} Based on the District Court's statement of relevant facts, we determine that the likelihood of injury to Lester is not foreseeable to the degree required in order to warrant a duty. The likelihood that a patient using prescription lithium will cause a car accident five days after contact with the doctor is considerably more remote in comparison to a patient who, injected with a narcotic, will cause an accident while driving away from the doctor's office. The effects of lithium on driving abilities is far less certain on this record than the effects of narcotics in Wilschinsky.

{7} Although it is not unreasonably burdensome for a physician to guard against injury to the patient or third parties when he or she injects a patient with medication in his or her office, based on this record, we determine that the magnitude of the burden a duty to third parties places upon a physician prescribing lithium is too high. As we stated in Wilschinsky, "unlike the prescription cases, the administration of [narcotic] drugs was within the doctor's presence, in the doctor's office under his direction and timing, making reasonable preventative measures of whatever type easier to implement, and, at the same time, creating a higher degree of patient reliance on the doctor's professional judgment." 108 N.M. at 514-15, 775 P.2d at 716-17 (emphasis added). In this prescription case, Andersen's taking of the drug outside of Hall's control made preventative measures more difficult and reliance on professional judgment more remote. This is a fundamental distinction between a physician medicating a patient in his or her office, where the physician is liable to third parties when he or she is directly aware of the effect of the medication, and here, where the patient takes the medication while not under the direct control and supervision of the physician. The physician in Wilschinsky had the opportunity to directly observe the *593 effects of the medication which he was injecting into his patient. The involvement of the doctor in directly administering the medication and the amount of control he had over his office and the patient in Wilschinsky were much greater relative to this case, in which Hall last saw his patient five days earlier. Further, considering that lithium is not a narcotic (which has a clearer effect on driving) requiring injection (indicative of the doctor's control) but instead is a prescription non-narcotic medication, Hall had significantly less control over how the patient would take it.

{8} The consequences of placing upon Hall the burden of guarding against Lester's injury also militates against extension of the duty. To extend a duty from Hall to Lester under the circumstances presented by this case would have a potentially serious chilling effect on the use of prescription medication in medical care. Another consequence would be the potential intrusion upon the indispensable loyalty which physicians must maintain towards their patients regarding their medical care and treatment decisions. As we stated in Wilschinsky, doctors "should not be asked to weigh notions of liability in their already complex universe of patient care." 108 N.M. at 516, 775 P.2d at 718. In view of these conclusions, together with the other factors of the Wilschinsky analysis reviewed above and the public policy considerations that we discuss below, we reject the extension of Hall's duty.

Public Policy Considerations
{9} Whether Hall owed a duty to Lester "is a question of law and is based upon policy considerations." See Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) (citation omitted). Even if we held that Lester is a foreseeable party to Hall's treatment of Andersen, this would not end the inquiry for the imposition of a duty. "By reference to existing statutes, rules of court, judicial precedent, and other principles comprising the law, we must determine whether the public policy of New Mexico supports a duty that runs" from Hall to Lester. Id.

{10} "Policy determines duty." Torres v. State, 119 N.M. 609, 612, 894 P.2d 386, 389 (1995).

[I]t is the particular domain of the legislature, as the voice of the people, to make public policy.... The judiciary, however, is not as directly and politically responsible to the people as are the legislative and executive branches of government. Courts should make policy in order to determine duty only when the body politic has not spoken and only with the understanding that any misperception of the public mind may be corrected shortly by the legislature.
Id.

{11} The Legislature has clearly demonstrated a concern for the health of the citizens of New Mexico as it is affected by the availability of practicing physicians and assured by the availability of malpractice insurance; thus, the Legislature has acted to limit health care providers' liability. See NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 1997); see also Wilschinsky, 108 N.M. at 516, 775 P.2d at 718 (discussing the purpose of the Medical Malpractice Act). The Legislature's stated "purpose of the Medical Malpractice Act is to promote the health and welfare of the people of New Mexico by making available professional liability insurance for health care providers in New Mexico." NMSA 1978, § 41-5-2 (1976). The Legislature's determination that health care providers' liability must be limited in order to assure New Mexicans' access to medical care is demonstrated by damage caps, see NMSA 1978, § 41-5-6 (1992), a shorter statute of limitations, compare NMSA 1978, § 41-5-13 (1976) (three years), with NMSA 1978, § 37-1-4 (1880) (four years), and required evaluation and decision by the medical review commission, see NMSA 1978, § 41-5-15 (1976). The Legislature's judgment to circumscribe the malpractice liability of health care providers emphasizes the appropriateness of reserving for legislative consideration the expansion of providers' liability to third parties. Although, as with Wilschinsky, we have the authority to recognize a duty, we believe this authority must be exercised sparingly, especially *594 when the Legislature has spoken in a manner inconsistent with the expansion of tort liability for health care providers. Thus, while the factual circumstances of Wilschinsky necessitated our recognition of a duty to third parties for that specific type of situation, the present case does not warrant expansion of that duty.

{12} Lester argues that a duty exists under these facts analogous to the duty of an attorney to a statutory beneficiary of wrongful death proceeds, see Leyba, 120 N.M. at 775-78, 907 P.2d at 179-82, or a contractor's duty to a subsequent owner of a home, Steinberg v. Coda Roberson Constr. Co., 79 N.M. 123, 124-25, 440 P.2d 798, 799-800 (1968). Lester emphasizes foreseeability and predefined standards of conduct as applied to an "unknown but foreseeable third party" and argues that Leyba holds that when elements of foreseeability and a pre-defined standard of conduct are present, the court will allow liability. However, the test adopted in Leyba, if applied to these facts, is actually detrimental to Lester. This Court adopted a combined "threshold third-party-beneficiary test and [a] multi-factor balancing test" for "analyzing the duty owed to statutory beneficiaries by an attorney for the personal representative prosecuting a wrongful death claim." Leyba, 120 N.M. at 775, 907 P.2d at 179. "`[U]nder the modified multi-factor balancing test, the threshold question is whether the plaintiff is an intended beneficiary of the transaction to which the advice pertained. While the answer to the threshold question does not totally resolve the issue, no further inquiry need be made unless such an intent exists.'" Id. (quoting Trask v. Butler, 123 Wash. 2d 835, 872 P.2d 1080, 1084 (Wash.1994)) (emphasis added). In Leyba, we noted that "[i]t is not, of course, the foreseeability of injury that gives rise to duty. It is the intent of attorney and client to benefit the third party that gives rise to a duty imposed by law." Id. at 773 n. 2, 907 P.2d at 177 n. 2. Here, Lester is clearly not the intended beneficiary of Hall's advice to Andersen. Lester focuses only on the foreseeability and standard of conduct discussions of Leyba, but the holding and reasoning of that case fail to support her position. Steinberg is similarly unavailing to Lester, because that case involved an intended class of beneficiaries, i.e. "prospective home buyers." 79 N.M. at 125, 440 P.2d at 800.

{13} Lester argues that Yount v. Johnson, 121 N.M. 585, 915 P.2d 341 (Ct.App. 1996), dispelled any inclination to favor physicians as a class or protect them for damage claims when their negligence injures others. Lester's reliance on Yount is misplaced because Yount did not concern medical malpractice; instead, Yount addressed holding minors to a standard of ordinary care. See id. at 586, 915 P.2d at 342 ("We are asked to decide whether, as a matter of policy, minors who engage in horseplay ... have no duty of reasonable care to one another."). In any case, this Court's conclusion that Hall does not owe Lester a duty under the facts of this case does not favor or protect physicians any more than Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 761, 750 P.2d 118, 122 (1988) (holding that attorneys do not owe a duty to adverse parties), favored or protected attorneys. Instead, Garcia and this case are a recognition of the realities of practice in these two fields and the long-standing proposition that these professionals owe a duty to their clients and that only under particularly limited circumstances are exceptions created for expanding the duty beyond those clients.[1]Leyba and Wilschinsky are exceptions to the general rule articulated in Garcia and the present case. In Garcia, we stated:

*595 A majority of jurisdictions do not hold attorneys liable for professional negligence to third party non-clients.... A duty of care toward non-clients has been found to exist only in those situations where the non-client was an intended beneficiary of the attorney's services, or where it was reasonably foreseeable that negligent service or advice to or on behalf of the client could cause harm to others.
106 N.M. at 761, 750 P.2d at 122 (citations omitted). Similarly, in Wilschinsky, we stated that "courts have recognized two sources of duty for the medical profession to third parties: when a doctor exerts control over a patient, or when a doctor is aware of threats against specific, identifiable third parties." 108 N.M. at 513, 775 P.2d at 715. In Wilschinsky, we concluded that "[l]iability under these facts must stem from the doctor's control over his offices and the administration of powerful drugs in those offices." Id. In other words, we made an exception from the general rule that a physician does not owe a duty to third party non-patients. We decline to extend this exception to prescription cases.

{14} Lester argues that this Court's judgment in Lopez v. Maez, 98 N.M. 625, 631, 651 P.2d 1269, 1275 (1982) (concluding that tavern-keepers have a duty to foreseeable third parties harmed when the tavern-keeper serves an intoxicated individual alcohol), supports a holding that there is a duty in the present case. As Lester notes, however, the duty of such servers stems from their violation of a regulation which prohibits the selling or serving of alcohol to an obviously intoxicated person. See id. at 631, 651 P.2d at 1275. Amicus New Mexico Trial Lawyer's Association (NMTLA) argues that our language regarding "the use of automobiles and the increasing frequency of accidents involving drunk drivers," id. at 632, 651 P.2d at 1275, applies to the problem of using automobiles under the influence of drugs. However, while driving under the influence of alcohol and resulting accidents is a well-documented problem which plagues New Mexico, it is evident that no similar problem exists with respect to lithium toxicity. Further, the results of individuals serving alcohol to an inebriated patron is much more similar to the situation in Wilschinsky, because of the degree of control and direct effects, than the present case, illustrating again the reasoning behind Wilschinsky and why this Court made an exception to the general rule that physicians are not liable to non-patients. It is not similar enough to the present case, however, to justify extending Wilschinsky beyond its facts.

{15} Under the test we articulated in Wilschinsky, we conclude that the injury to Lester was too remote in relation to Hall's actions to warrant extending a duty under these facts. We also conclude that the public policy of New Mexico, as expressed by the Legislature and our earlier cases, is inconsistent with the recognition of a duty in this case. Therefore, we determine as a matter of New Mexico law that Hall's duty to Andersen does not extend to Lester on the facts presented by the District Court.

Third Party Liability: Other Jurisdictions
{16} Lester contends that we should recognize a duty in this case because "the jurisdictions which have addressed this question have almost unanimously found that such a duty does exist." NMTLA supports this assertion,[2] and further argues that jurisdictions *596 which do not extend physicians' duties are either so different from New Mexico in terms of policy or "are so far out of the mainstream that they do not merit consideration." However, a review of foreign jurisdictions that have addressed the narrow question presented under these facts, whether a physician owes a duty to third party non-patients for negligently prescribing medication, reveal a split in authority.

{17} At least four courts have concluded that physicians owe a duty to injured third parties to warn their patients about side effects of prescription medication. See Watkins v. United States, 589 F.2d 214, 219 (5th Cir.1979) (finding a physician owed a duty, based upon Alabama law, to a third party when prescribing Valium, in spite of the fact that the patient had a .16 blood alcohol level); Zavalas v. State Dep't of Corrections, 124 Or.App. 166, 861 P.2d 1026, 1027-29 (Or.Ct. App.1993) (finding physician who negligently prescribed Xanax to his heroin-addicted patient owed duty to third parties); Kaiser v. Suburban Transp. Sys., 65 Wash. 2d 461, 398 P.2d 14, 16 (Wash.1965) (concluding, without a discussion of duty, that physician who failed to warn bus driver of side effects of medication which may cause drowsiness owed a duty to injured bus passenger); Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159, 161-63 (Wis.1988). Schuster involved a psychiatric patient who was killed while driving in a single-car accident that paralyzed her daughter. 424 N.W.2d at 160-61. The court stated that a defendant therapist was negligent by failing to warn of a medication's side effects, failing to warn the patient's family, and failing to seek commitment of the patient. Schuster, 424 N.W.2d at 175. The Court held that "in Wisconsin, a psychotherapist may be held liable in negligence for failure to warn of the side effects of a medication if the side effects were such that a patient should have been cautioned against driving, because it was foreseeable that an accident could result, causing harm to the patient or third parties if the patient drove while using the medication." Id. at 163. Apparently, few courts have created as broad a duty as the Wisconsin court, and it did so based upon very few facts. Id. at 160 (noting that "the facts presented are sparse"). The allegations of the plaintiff in Schuster seem to indicate that the patient was in a psychotic state, placing this case in the category of a duty to warn identifiable third parties of a patient with known dangerous propensities rather than within categories of prescription cases with a duty to warn of side effects. See id.

{18} Lester also relies on Gooden v. Tips, 651 S.W.2d 364, 369-70 (Tex.App.1983), in which the court held that a physician may be liable to third parties injured by the conduct of a patient when the physician failed to warn the patient about the effects of a drug that the doctor prescribed. However, recently, the Supreme Court of Texas significantly narrowed physicians' duties to third parties. In Praesel v. Johnson, 967 S.W.2d 391, 396 (Tex.1998), the court noted that it had "generally limited the scope of the duty owed by physicians in providing medical care to their patients."[3] The court "decline[d] to impose on physicians a duty to third parties to warn an epileptic patient not to drive." Praesel, 967 S.W.2d at 398. Somewhat similarly *597 to our analysis, the court "weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant," and also considered "whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm." Id. at 397-98 (citation omitted). Further, the court noted:

In determining whether to erect a legal duty to warn, we must also consider the efficacy of that warning in preventing injury to third parties. We cannot simply assume that a person who is advised not to drive will actually respond and refrain from driving. The consequences of placing a legal duty on physicians to warn may subject them to substantial liability even though their warnings may not be effective to eliminate the risk in many cases. Unfortunately, many patients do not heed the admonitions of their physicians even though the consequences may be life-threatening to the patient or others.
Id. at 398 (citation omitted). Although the court's language is somewhat ambiguous[4] as to whether or not Gooden is still good law, the recent trend in Texas has limited physicians' duties to third parties. Additionally, Justice Enoch, concurring, asserted that "[w]hen stripped of its duty-to-warn language, Gooden simply holds that a physician owes a duty to a third party to not negligently treat a patient.... Gooden cannot be good authority and we should make that clear to the courts of this state." Id. at 399.

{19} At least four courts have rejected the proposition that physicians owe a duty to third parties for the negligent prescription of drugs to their patients. See Werner, 659 So.2d at 1309-10; Webb v. Jarvis, 575 N.E.2d 992, 995-97 (Ind.1991); Conboy, 567 N.Y.S.2d at 961-62; Kirk, 111 Ill.Dec. 944, 513 N.E.2d at 395-99; see also Estate of Warner, 669 F.Supp. at 235-37; Rebollal v. Payne, 145 A.D.2d 617, 536 N.Y.S.2d 147, 148 (App.Div.1988) (analogizing a county to a physician, finding no duty to a third party killed in an auto accident when the patient received methadone, reasoning that a physician "does not undertake a duty to the public at large"). In Werner, a third party motorist sued a physician, alleging that the doctor failed to warn the patient not to drive while under the influence of an epilepsy medication. Werner, 659 So. 2d at 1309. The court, relying upon Pate, 661 So. 2d at 282, noted that the Florida Supreme Court "specifically limited the physician's duty to known and identifiable third parties as [in Pate] the patient and plaintiff were mother and child," and also noted that even assuming a duty to warn, there was no allegation that the failure to warn the patient not to drive while medicated proximately caused the accident. Id. at 1310-11. In Conboy, a mother sued her physician on behalf of her children, who were passengers in her car when she lost consciousness after taking prescription medication, alleging that he advised her that she could drive. 567 N.Y.S.2d at 961. The court held that the physician had no ability or authority to control his patient's conduct "to give rise to a duty on his part to protect the children." Id.

{20} The Kirk case, from which we adopted the test applied in Wilschinsky, involved a psychiatric patient using prescription drugs in combination with alcohol on the day he was discharged from a hospital. See 111 Ill.Dec. 944, 513 N.E.2d at 390-91. The plaintiff was a passenger injured in the patient's car when it collided with a tree. The court noted that "no patient-doctor relationship" between the defendant doctors and the plaintiff existed, and no "special relationship" (as in another case between a mother-patient and her baby) existed between the patient and the plaintiff. Id. 111 Ill.Dec. 944, 513 N.E.2d at 399. The court also observed that "[o]ther jurisdictions have limited the scope of the physician's duty to warn to situations in which there is, apart from the patient, a specifically identifiable potential victim, rather than holding that a duty exists to the *598 public generally." Id. 111 Ill.Dec. 944, 513 N.E.2d at 398.

{21} The court, in Kirk, held that "a plaintiff cannot maintain a medical malpractice action absent a direct physician-patient relationship between the doctor and plaintiff or a special relationship ... between the patient and the plaintiff." Id. 111 Ill.Dec. 944, 513 N.E.2d at 399. While the plaintiff contended that the doctor need only warn and advise the patient, the court observed that "[t]he plaintiff overlooks that [a duty by doctors to warn] explicitly extends the duties of the doctors ... beyond the patient to the general public." Id. Thus, the court held that a recognized duty, the "first essential" component of a negligence action, was not met by the plaintiff. Id.

{22} The court, in Estate of Warner, relied upon Kirk, and held that a physician who allegedly prematurely released a psychiatric patient that was experiencing barbiturate intoxication did not owe a duty to a third party non-patient because no patient-doctor or special relationship existed. 669 F. Supp. at 237. The court stated that "social and public policy considerations dictate that a duty by members of the medical profession not be expanded to the public in general where liability would be virtually limitless." Id.

{23} Finally, Webb involved a doctor prescribing anabolic steroids to a patient, who, without the doctor's knowledge, battered his wife. 575 N.E.2d at 994. The patient shot the plaintiff, a police officer. Id. The court discussed duty in terms of the relationship between the defendant and plaintiff, foreseeability, and public policy. Id. at 995. The court held that there was no contract, special relationship, privity or reliance between the plaintiff and the doctor, and thus no relationship, that the connection between steroids and violent behavior was not well established, and that on public policy grounds the doctor must be loyal to the patient. Webb, 575 N.E.2d at 995-97. The plaintiff, as does Lester, compared the situation to dram shop cases, but the court rejected this argument because the causal connection is much greater between alcohol and its physical effects. Id. at 997. The court in Webb concluded, and we agree, that the "social utility derived from prescription medication can hardly be disputed and far outweighs the risk of harm to third parties." Id. at 997.

{24} The foregoing cases illustrate the numerous grounds upon which courts have rejected imposing on physicians a duty to third parties for negligently prescribing medication. While we find it unnecessary to adopt specific factors enumerated in these cases, we note that we find the policy considerations underlying these cases to be much more compelling than those cases that operate to extend a general duty from physicians to third parties in prescription cases. Under Wilschinsky and public policy considerations, we hold that Hall's duty to Andersen does not extend to Lester.

Conclusion
{25} We developed an analysis as to whether a physician owes a duty to a non-patient third party in Wilschinsky. Our recognition of a duty in Wilschinsky is an exception to the general rule that a physician owes a duty to his or her patient, and not to third party non-patients. Even assuming, as we do here, that the facts presented by Lester are accurate, we conclude that the likelihood of injury to Lester is too remote from Hall's conduct towards Andersen to warrant expansion of the Wilschinsky duty. Further, public policy considerations, the legislative limitations upon malpractice by health care providers, and the reasoning of other jurisdictions argue against extending the duty which Lester advances. Hall clearly owes a duty to Andersen to act according to the professional standards of acceptable medical practice. However, we hold that under these facts, this duty does not extend to Lester. As a result, we answer the District Court's certified question in the negative.

{26} IT IS SO ORDERED.

FRANCHINI, C.J., BACA, and McKINNON, JJ., concur.

NOTES
[1] Cf. Estate of Warner v. United States, 669 F. Supp. 234, 237 (N.D.Ill.1987) (noting that "a plaintiff cannot maintain a medical malpractice action absent [a] direct ... patient-doctor relationship," with limited exceptions); Werner v. Varner, Stafford & Seaman, P.A., 659 So. 2d 1308, 1309 (Fla.Dist.Ct.App.1995) (noting that "[g]enerally, in Florida, in order to maintain a cause of action against a physician, privity must exist between the plaintiff and physician," except in limited circumstances); Conboy v. Mogeloff, 172 A.D.2d 912, 567 N.Y.S.2d 960, 961-62 (App.Div. 1991) (holding that a doctor had no duty to a non-patient because "a defendant has no legal duty to control the conduct of third persons so as to prevent them from harming others" except when the defendant has the ability and authority to control the third persons' conduct, and noting that privity or some reliance is necessary from the physician to the third party).

[2] We note that some of the cases upon which NMTLA relies do not support the finding of a duty in this case. For example, in Appendix A of its amicus brief, NMTLA lists Mississippi among the jurisdictions which impose a duty on physicians to third parties for the negligent care and treatment of their patients. However, the cited case, Meena v. Wilburn, 603 So. 2d 866, 867-68 (Miss.1992), involved a doctor and nurse who negligently performed a procedure on the incorrect patient, who then sued them; thus, the plaintiff was not a third party injured by a patient who was negligently treated by the doctor, but instead was a plaintiff directly injured by the actions of the defendant. NMTLA also relies upon Pate v. Threlkel, 661 So. 2d 278, 282 (Fla. 1995) even though that case found a duty "when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of [them]." See Hawkins v. Pizarro, 713 So. 2d 1036, 1038 (Fla.Dist.Ct.App.1998) (holding physician had no duty to third party in negligently advising a patient infected with hepatitis because the patient's husband met and married her after the testing, and he was thus not identified or known to the physician). Further, in Krejci v. Akron Pediatric Neurology, Inc., 31 Ohio App.3d 273, 511 N.E.2d 129, 131 (Ohio Ct.App.1987), another case cited by NMTLA, although the court concluded that a physician owed a third party a duty, this conclusion was based upon a statute which the court decided was intended to protect the public, creating a special duty by doctors to use reasonable care in the certification of the driving ability of a patient suffering from epileptic seizures. The court stated that "[i]t is well-established in Ohio that liability in negligence will not lie in the absence of a special duty owed by the defendant[,]" and noted that a physician cannot force a patient not to drive or to take medication properly. Id. at 130-31.

[3] See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 79 (Tex.1997) (declining to permit bystander recovery, holding that a physician did not owe a duty to a husband "to provide competent medical care to [his wife] or [her] fetus"); Bird v. W.C.W., 868 S.W.2d 767, 770 (Tex.1994) (holding that a psychologist who mistakenly concluded that a child had been molested by her father did not owe a duty to the third party father, who had been criminally charged as a result, in part because of the absence of a physician-patient relationship, even though it was foreseeable).

[4] See Praesel, 967 S.W.2d at 398 ("[I]t does not necessarily follow that there is no duty to give a warning. As we observed in Bird, there is little utility in failing to warn patients about effects of a drug or condition that are known to the physician but are likely to be unknown to the patient.").

2025 New Mexico Statutes
Chapter 26 - Drugs and Cosmetics
Article 2B - Lynn and Erin Compassionate Use Act
Section 26-2B-4 - Exemption from criminal and civil penalties for the medical use of cannabis.
Universal Citation:
NM Stat § 26-2B-4 (2025)
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A. A qualified patient or a qualified patient's primary caregiver shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the medical use of cannabis if the quantity of cannabis does not exceed an adequate supply; provided that a qualified patient or the qualified patient's primary caregiver may possess that qualified patient's harvest of cannabis.

B. A reciprocal participant shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the medical use of cannabis if the quantity of cannabis does not exceed the limit identified by department rule.

C. The following conduct is lawful and shall not constitute grounds for detention, search or arrest of a person or for a violation of probation or parole, and cannabis products that relate to the conduct are not contraband or subject to seizure or forfeiture pursuant to the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978] or the Forfeiture Act [Chapter 31, Article 27 NMSA 1978]:

(1) a qualified patient or primary caregiver possessing or transporting not more than an adequate supply or a reciprocal participant possessing or transporting not more than the limit identified by department rule;

(2) a qualified patient or primary caregiver purchasing or obtaining not more than an adequate supply from a lawful source or a reciprocal participant purchasing or obtaining not more than the limit identified by department rule;

(3) a qualified patient or reciprocal participant using or being under the influence of cannabis; provided that the qualified patient or reciprocal participant is acting consistent with law; or

(4) a qualified patient, primary caregiver or reciprocal participant transferring, without financial consideration, to a qualified patient, primary caregiver or reciprocal participant not more than two ounces of cannabis, sixteen grams of cannabis extract and eight hundred milligrams of edible cannabis.

D. Subsection A of this section shall not apply to a qualified patient under the age of eighteen years, unless:

(1) the qualified patient's practitioner has explained the potential risks and benefits of the medical use of cannabis to the qualified patient and to a parent, guardian or other person having legal custody of the qualified patient; and

(2) a parent, guardian or other person having legal custody consents in writing to:

(a) allow the qualified patient's medical use of cannabis;

(b) serve as the qualified patient's primary caregiver; and

(c) control the dosage and the frequency of the medical use of cannabis by the qualified patient.

E. A qualified patient or a primary caregiver shall be granted the full legal protections provided in this section if the qualified patient or primary caregiver is in possession of a registry identification card. If the qualified patient or primary caregiver is not in possession of a registry identification card, the qualified patient or primary caregiver shall be given an opportunity to produce the registry identification card before any arrest or criminal charges or other penalties are initiated.

F. A practitioner shall not be subject to arrest or prosecution, penalized in any manner or denied any right or privilege for recommending the medical use of cannabis or providing written certification for the medical use of cannabis pursuant to the Lynn and Erin Compassionate Use Act.

G. Any property interest that is possessed, owned or used in connection with the medical use of cannabis, or acts incidental to such use, shall not be harmed, neglected, injured or destroyed while in the possession of state or local law enforcement officials. Such property interest shall not be forfeited under any state or local law providing for the forfeiture of property except as provided in the Forfeiture Act. Cannabis, paraphernalia or other property seized from a qualified patient, primary caregiver or reciprocal participant in connection with the claimed medical use of cannabis shall be returned immediately upon the determination by a court or prosecutor that the qualified patient, primary caregiver or reciprocal participant is entitled to the protections of the provisions of the Lynn and Erin Compassionate Use Act, as may be evidenced by a failure to actively investigate the case, a decision not to prosecute, the dismissal of charges or acquittal.

H. A person shall not be subject to arrest or prosecution for a cannabis-related offense for simply being in the presence of the medical use of cannabis as allowed under the provisions of the Lynn and Erin Compassionate Use Act.

History: Laws 2007, ch. 210, § 4; 2019, ch. 247, § 4; 2021 (1st S.S.), ch. 4, § 59.

ANNOTATIONS
The 2021 (1st S.S.) amendment, effective June 29, 2021, made amendments to conform the Lynn and Erin Compassionate Use Act with the newly enacted Cannabis Regulation Act; in Subsection C, Paragraph C(3), added "or reciprocal participant" after each occurrence of "qualified patient", in Paragraph C(4), added "or reciprocal participant" after each occurrence of "primary caregiver", after "two ounces of cannabis", added "sixteen grams of cannabis extract and eight hundred milligrams of edible cannabis", and deleted former Paragraph C(5); deleted former Subsection G and redesignated former Subsection H as new Subsection G; in Subsection G, added "or reciprocal participant" after each occurrence of "primary caregiver"; and deleted former Subsection I and redesignated former Subsection J as Subsection H.

The 2019 amendment, effective June 14, 2019, revised provisions related to the exemption of the medical use of cannabis from criminal and civil penalties; in Subsection A, after "qualified patient", added "or a qualified patient's primary caregiver", and after "adequate supply;", added "provided that a qualified patient or the qualified patient's primary caregiver may possess that qualified patient's harvest of cannabis"; deleted former Subsection B, added new Subsections B and C and redesignated former Subsections C through G as Subsections D through H, respectively; in Subsection E, added "qualified" preceding each occurrence of "patient" and added "primary" preceding each occurrence of "caregiver"; in Subsection G, after "A", deleted "licensed producer" and added "licensee or licensee representative", after "possession", added "manufacture", after "dispensing", added "testing", and added the last sentence; and added a new Subsection I and redesignated former Subsection H as Subsection J.