McKenzie v. Hawaii Permanente Medical Group

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

—o0o—

CAROLE McKENZIE, Individually and as
Prochein Ami for KATHRYN McKENZIE, a minor;
and ROGER McKENZIE, Plaintiffs,
vs.
HAWAII PERMANENTE MEDICAL GROUP, INC.;
KAISER FOUNDATION HEALTH PLAN, INC.; and
JERRY I. WILSON, Defendants.

NO. 23268
CERTIFIED QUESTION FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF HAWAI#I
(CIV. NO. 98-00726 DAE)

JUNE 10, 2002

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, AND ACOBA, JJ.

OPINION OF THE COURT BY MOON, C.J.
Plaintiffs Carole McKenzie, individually and as
Prochein Ami for Kathyrn McKenzie, a minor, and Roger McKenzie
[hereinafter, collectively, the McKenzies] filed an action in the
United States District Court for the District of Hawai#i (the
district court) against defendants Hawai#i Permanente Medical
Group, Inc., Kaiser Foundation Health Plan, Inc. [hereinafter,
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collectively, Kaiser], and Jerry I. Wilson for negligence arising
out of an incident in which plaintiff Kathryn McKenzie, a
pedestrian, was seriously injured when she was struck by an
automobile driven by Wilson. The McKenzies and Wilson claim that
the accident was caused by a fainting episode precipitated by the
negligent prescription of medication to Wilson by Robert
Washecka, M.D. (Dr. Washecka), an employee of Kaiser.1 Kaiser is
being sued under the doctrine of respondeat superior.
Recognizing that there is no clear Hawai#i precedent concerning
whether a physician could be sued for negligence by a third party
who is not the physician’s patient, the district court certified
the following question to this court pursuant to Hawai#i Rules of
Appellate Procedure (HRAP) Rule 13 (2000)2:

D o e s a p h y s i c i a n o w e a l e g a l d u t y w h i c h w o u l d c r e a t e a
c a u s e o f a c t i o n l e g a l l y c o g n i z a b l e i n t h e c o u r t s o f H a w a i #i
f o r p e r s o n a l i n j u r y o f a t h i r d p a r t y w h o w a s i n j u r e d i n a n
a c c i d e n t c a u s e d b y h i s o r h e r p a t i e n t ’ s a d v e r s e r e a c t i o n t o
a m e d i c a t i o n t h a t t h e p h y s i c i a n n e g l i g e n t l y p r e s c r i b e d t h r e e
d a y s p r i o r t o t h e a c c i d e n t ?
We answer the certified question with a qualified “yes”
as discussed herein.

1 W i l s o n f i l e d a c r o s s – c l a i m a g a i n s t K a i s e r .

2 H R A P R u l e 1 3 ( a ) s t a t e s :

W h e n a f e d e r a l d i s t r i c t o r a p p e l l a t e c o u r t c e r t i f i e s
t o t h e H a w a i #i S u p r e m e C o u r t t h a t t h e r e i s i n v o l v e d i n a n y
p r o c e e d i n g b e f o r e i t a q u e s t i o n c o n c e r n i n g t h e l a w o f
H a w a i #i t h a t i s d e t e r m i n a t i v e o f t h e c a u s e a n d t h a t t h e r e i s
n o c l e a r c o n t r o l l i n g p r e c e d e n t i n t h e H a w a i #i j u d i c i a l
d e c i s i o n s , t h e H a w a i #i S u p r e m e C o u r t m a y a n s w e r t h e
c e r t i f i e d q u e s t i o n b y w r i t t e n o p i n i o n .

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I. BACKGROUND
The following background information is derived from
the portion of the district court’s order entitled “Facts and
Prior Proceedings[.]”
This case involves a medical malpractice and personal
injury action to recover damages for injuries suffered by Kathryn
McKenzie, a minor, who was injured on August 8, 1997 when she was
hit by a vehicle driven by Wilson. The McKenzies and Wilson
claim the accident occurred because Wilson fainted while driving
due to an adverse reaction to a medication negligently prescribed
by Wilson’s physician, Dr. Washecka.
On August 5, 1997, Dr. Washecka, a Kaiser physician,
prescribed prazosin hydrochloride, a generic form of the drug
Minipress [hereinafter, prazosin], to treat a medical condition
that Wilson had. Wilson was instructed to take a two milligram
(mg.) tablet of prazosin at bedtime for three days, starting on
August 5, 1997. Wilson was further instructed that, if he did
not experience any side effects during the first three days, he
was to take a 2 mg. tablet of prazosin twice a day, once in the
morning and once at bedtime beginning the fourth day, August 8,
1997. Factual disputes exist as to whether the prescribed
dosages were proper. Wilson was verbally warned by Dr. Washecka
(presumably on August 5), and also through the medication’s

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warning labels, of potential side effects and precautions
regarding driving while on the medication.
Wilson alleges that he took his first three bedtime-
doses of prazosin on August 5, 6, and 7 without incident. Wilson
also contends that he took his August 7 bedtime dose at
approximately 2:00 a.m., i.e., in the early morning hours of
August 8. On August 8, 1997, Wilson alleges that he took his
first morning dose of prazosin at approximately 7:45 a.m. and
then drove to work.
As Wilson approached Vineyard Boulevard from Pali
Highway, heading towards downtown Honolulu, he began to feel
nauseated and dizzy and began to hyperventilate. A few blocks
later, as he proceeded southbound on Bishop Street, he allegedly
fainted and hit the car in front of him. Wilson’s car then
veered right and entered onto the sidewalk striking Kathryn
McKenzie.

Prazosin has several known side effects, including
fainting. The McKenzies’ expert states that Kaiser doctors were
the only physicians in Honolulu who prescribed prazosin.
According to the McKenzies’ expert, prazosin was not the
preferred drug to prescribe in 1997 for the treatment of Wilson’s
condition; other available medications should have been used to
treat Wilson because the use of these other medications would
have reduced the risk of an adverse reaction. The McKenzies also
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state that prazosin is three times cheaper than the other
preferred medications. The McKenzies and Wilson argue that
Wilson fainted because he took prazosin that morning. Thus, the
McKenzies and Wilson allege that Dr. Washecka negligently
prescribed prazosin, negligently prescribed an excessive dose of
prazosin, and failed to give Wilson sufficient warning of its
side effects. Kaiser disputes liability and the contentions of
the McKenzies’ expert witness and claims that the accident was
not in any way caused by the prazosin prescribed to Wilson.
This case was set to begin trial on March 7, 2000.
However, on March 6, 2000, Kaiser filed a memorandum requesting
certification to this court. Following a hearing that day, the
district court postponed the trial pending certification of the
aforementioned question.

II. DISCUSSION
A prerequisite to any negligence action is the
existence of a duty owed by the defendant to the plaintiff that
requires the defendant to conform to a certain standard of
conduct for the protection of the plaintiff against unreasonable
risks. Lee v. Corregedore, 83 Hawai#i 154, 158-59, 925 P.2d 324,
328-29 (1996). This court ordinarily addresses whether a
defendant owes a duty of care to a particular plaintiff as a
question of law. See Blair v. Ing, 95 Hawai#i 247, 253, 21 P.3d
452, 458 (2001); Lee, 83 Hawai#i at 158, 925 P.2d at 328. The
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existence of a duty concerns “whether such a relation exists
between the parties that the community will impose a legal
obligation upon one for the benefit of the other — or, more
simply, whether the interest of a plaintiff who has suffered
invasion is entitled to legal protection at the expense of a
defendant[.]” Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 353,
944 P.2d 1279, 1296 (1997). Because our task is to ascertain
whether Dr. Washecka owes a duty to the McKenzies, it necessarily
requires a presumption that Dr. Washecka was negligent in his
treatment of Wilson. We, therefore, assume, for the purpose of
our analysis, that Dr. Washecka was negligent.
The parties to this case present several arguments.
Kaiser essentially argues that: (1) it owes no duty to the
McKenzies because they are not patients of Dr. Washecka; (2) Dr.
Washecka does not have a “special relationship” with Wilson
mandating that Dr. Washecka control Wilson’s behavior for the
McKenzies’ benefit; and (3) public policy concerns further compel
the conclusion that physicians do not owe a duty to non-patient
third parties. According to Kaiser, the social utility of
medication usage far outweighs the risk of harm to unrelated non-
patients. Kaiser maintains that exposing physicians to liability
for harm to such persons would discourage beneficial medication
prescriptions and would create “divided loyalties” between
physicians and their patients, requiring physicians to choose
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between the interests of their patients and those of unknown non-
patients. The McKenzies, on the other hand, argue that: (1)
where — as here — the defendant’s conduct in negligently
prescribing prazosin creates the injury, pursuant to Restatement
(Second) of Torts (1965) [hereinafter, Restatement (Second)] §
302, foreseeability, rather than the existence of a “special
relationship” between the physician and patient, is the major
criterion determining whether a duty is owed them by Dr.
Washecka; (2) even if a “special relationship” is necessary to
create a duty entitling them to protection, a physician-patient
relationship is such a relationship; and (3) policy
considerations, including deterrence of negligent conduct, the
fair allocation of the costs of harm, and fair compensation for
victims, mandate that Kaiser owes a duty to them. The McKenzies
further contend that Kaiser’s policy concerns are exaggerated and
that imposition of a duty in this case would impose no more of a
duty upon physicians than they presently owe to their own
patients. Wilson agrees with the McKenzies and also generally
asserts that it is sound public policy to hold physicians
accountable to the general public for negligent prescribing
practices when it is foreseeable that a member of the public will
be harmed by such practices.
In addition to the parties to this case, amicus curiae
briefs submitted by the Hawai#i Pharmacists Association, the
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Hawai#i Dental Association, and the Hawai#i Medical Association
(HMA) generally support the policy considerations cited by
Kaiser. The HMA emphasizes in particular the potential effect
that imposition of a duty in this case could have on the
prescription practices of psychiatrists and the welfare of
psychiatric patients.
Applicability of the “Special Relationship” Analysis and
A.
Restatement (Second) § 302
1.
“Special Relationship”
The parties dispute whether Dr. Washecka has a “special
relationship” with Wilson that entitles the McKenzies to
protection. The Restatement (Second) § 315 (1965) states:

T h e r e i s n o d u t y s o t o c o n t r o l t h e c o n d u c t o f a t h i r d p e r s o n
a s t o p r e v e n t h i m f r o m c a u s i n g p h y s i c a l h a r m t o a n o t h e r
u n l e s s
( a ) a s p e c i a l r e l a t i o n e x i s t s b e t w e e n t h e a c t o r a n d
t h e t h i r d p e r s o n w h i c h i m p o s e s a d u t y u p o n t h e a c t o r t o
c o n t r o l t h e t h i r d p e r s o n ’ s c o n d u c t , o r
( b ) a s p e c i a l r e l a t i o n e x i s t s b e t w e e n t h e a c t o r a n d
t h e o t h e r w h i c h g i v e s t o t h e o t h e r a r i g h t t o p r o t e c t i o n .
Section 315 is a special application of the general rule stated
in Restatement (Second) § 314 (1965) that a person does not have
a duty to act affirmatively to protect another person from harm.3
See Restatement (Second) § 315 (1965) comment a (“[Section 315]
is a special application of the general rule stated in § 314.”);
see also Lee, 83 Hawai#i at 159, 925 P.2d at 329 (citing

3 R e s t a t e m e n t ( S e c o n d ) § 3 1 4 s t a t e s :
T h e f a c t t h a t t h e a c t o r r e a l i z e s o r s h o u l d r e a l i z e t h a t
a c t i o n o n h i s p a r t i s n e c e s s a r y f o r a n o t h e r ’ s a i d o r
p r o t e c t i o n d o e s n o t o f i t s e l f i m p o s e u p o n h i m a d u t y t o t a k e
s u c h a c t i o n .
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Restatement (Second) § 314). Section 314 applies “only where the
peril in which the actor knows the other is placed is not due to
any active force which is under the actor’s control. If a force
is within the actor’s control, his failure to control it is
treated as though he were actively directing it and not as a
breach of duty to take affirmative steps[.]” Restatement
(Second) § 314 (1965) comment d; see also Touchette v. Ganal, 82
Hawai#i 293, 302, 922 P.2d 347, 356 (1996) (Noting that the
considerations pertaining to “special relationships” are “based
on the concept that a person should not be liable for
‘nonfeasance’ in failing to act as a ‘good Samaritan.’ [Such
considerations have] no application where the defendant, through
his or her own action (misfeasance) has made the plaintiff’s
position worse and has created a foreseeable risk of harm from
the third person. In such cases the question of duty is governed
by the standards of ordinary care.”) (Citing Pamela L. v. Farmer,
169 Cal. Rptr. 282, 284 (1980).) (internal emphases and citations
omitted). Accordingly, the “special relationship” arguments put
forth by the parties are inapplicable to this case because
medical malpractice involving the negligent prescription of
medication is “misfeasance” that is not analogous to the
“nonfeasance” in failing to act as a “Good Samaritan” or failing

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to take affirmative “action” as the term is used by Restatement
(Second) § 314.4
2.
Applicability of Restatement § 302
Relying upon Touchette and Restatement (Second) § 302,
the McKenzies contend that the proper framework for analyzing
this case is whether Dr. Washecka’s action in negligently
prescribing prazosin created a risk of harm to them through the
action of a third party — his patient Wilson. The McKenzies are
correct, although Touchette and the language of Restatement
(Second) § 302 do not necessarily mandate that Dr. Washecka owes
a duty to them.
Restatement (Second) § 302 states:

A n e g l i g e n t a c t o r o m i s s i o n m a y b e o n e w h i c h i n v o l v e s a n
u n r e a s o n a b l e r i s k o f h a r m t o a n o t h e r t h r o u g h e i t h e r
( a ) t h e c o n t i n u o u s o p e r a t i o n o f a f o r c e s t a r t e d o r
c o n t i n u e d b y t h e a c t o r o m i s s i o n , o r
( b ) t h e f o r e s e e a b l e a c t i o n o f t h e o t h e r , a t h i r d
p e r s o n , a n a n i m a l , o r a f o r c e o f n a t u r e .
Ostensibly, Kaiser could be liable to the McKenzies pursuant to
subsection (b) because it is foreseeable that Wilson would drive
after ingesting a negligently prescribed medication and therefore
subject them to harm. When the tortfeasor instigates the act
causing harm — such as by prescribing medication — Restatement

4 I n S e i b e l v . C i t y a n d C o u n t y o f H o n o l u l u , 6 1 H a w . 2 5 3 , 2 6 1 , 6 0 2 P . 2 d
5 3 2 , 5 3 8 ( 1 9 7 9 ) , t h i s c o u r t r e f e r r e d i n d i c t u m t o t h e p o s s i b l e e x i s t e n c e o f a
s p e c i a l r e l a t i o n s h i p b e t w e e n a p h y s i c i a n a n d p a t i e n t “ t o w a r n f o r e s e e a b l y
e n d a n g e r e d p e r s o n s o f t h e r i s k o f h a r m c r e a t e d b y a p a t i e n t ’ s c o n d u c t [ , ] ”
r e f e r r i n g t o , i n t e r a l i a , T a r a s o f f v . R e g e n t s o f t h e U n i v e r s i t y o f C a l i f o r n i a ,
5 5 1 P . 2 d 3 3 4 ( 1 9 7 6 ) . T h e p r e s e n t c a s e d o e s n o t i n v o l v e c i r c u m s t a n c e s s i m i l a r
t o t h e d a n g e r o u s p a t i e n t i n T a r a s o f f w h o t h r e a t e n e d t o k i l l a r e a d i l y
i d e n t i f i a b l e p a r t y . S e e i d . a t 3 4 1 .
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(Second) § 302 generally applies. See Restatement (Second) § 314
comment d. Consistent with this view, we held in Touchette that,
under Restatement (Second) § 302, the defendant might owe a duty
to the plaintiffs, family members of her extramarital lover who
were harmed by the assaultive behavior of the defendant’s husband
(the third party), where the husband’s behavior was ostensibly
caused by the defendant’s affirmative “misfeasance” of taunting
her husband and causing him to suffer extreme emotional distress
leading to the assaults. Touchette, 82 Hawai#i at 304, 922 P.2d
at 358; cf. Lee, 83 Hawai#i at 156-58, 162, 925 P.2d at 326-28,
332 (veterans counselor who did not provide psychiatric or
psychological counseling services did not owe a duty, pursuant to
Restatement (Second) § 302, for alleged “nonfeasance” in failing
to warn a veteran’s father of the veteran’s threat to commit
suicide).
However, Restatement (Second) § 302 by itself does not
create or establish a legal duty; it merely describes a type of
negligent act. Comment a to this section states in relevant part
that:

[ S e c t i o n 3 0 2 ] i s c o n c e r n e d o n l y w i t h t h e n e g l i g e n t
c h a r a c t e r o f t h e a c t o r ’ s c o n d u c t , a n d n o t w i t h [ t h e a c t o r ’ s ]
d u t y t o a v o i d t h e u n r e a s o n a b l e r i s k . I n g e n e r a l , a n y o n e w h o
d o e s a n a f f i r m a t i v e a c t i s u n d e r a d u t y t o o t h e r s t o
e x e r c i s e t h e c a r e o f a r e a s o n a b l e [ p e r s o n ] t o p r o t e c t t h e m
a g a i n s t a n u n r e a s o n a b l e r i s k o f h a r m t o t h e m a r i s i n g o u t o f
t h e a c t . . . . I f t h e a c t o r i s u n d e r n o d u t y t o t h e o t h e r t o
a c t , h i s f a i l u r e t o d o s o m a y b e n e g l i g e n t c o n d u c t w i t h i n
t h e r u l e s t a t e d i n t h i s S e c t i o n , b u t i t d o e s n o t s u b j e c t h i m
t o l i a b i l i t y , b e c a u s e o f t h e a b s e n c e o f d u t y .
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(Emphases added). See also Restatement (Second) (1965) table of
contents (the structure of which indicates that the conduct
described in § 302 is one of several “types of negligent acts”).
Accordingly, the fact that Dr. Washecka’s negligent conduct falls
under the rubric of Restatement § 302 does not establish per se
that he owes a duty to the McKenzies; it only describes the
manner in which he may be negligent if he owed a duty to the
McKenzies.5 To determine whether the negligent prescription of
prazosin created an “unreasonable risk of harm” to the McKenzies
— and thus whether Dr. Washecka owed a duty to them — we turn
to the usual considerations that constitute an analysis of
whether a duty exists.
Determining Whether to Impose a Duty
B.
Regarding the imposition of a duty of care, this court
has noted generally that:

I n c o n s i d e r i n g w h e t h e r t o i m p o s e a d u t y o f r e a s o n a b l e
c a r e o n a d e f e n d a n t , w e r e c o g n i z e t h a t d u t y i s n o t
s a c r o s a n c t i n i t s e l f , b u t o n l y a n e x p r e s s i o n o f t h e s u m
t o t a l o f t h o s e c o n s i d e r a t i o n s o f p o l i c y w h i c h l e a d t h e l a w
t o s a y t h a t t h e p a r t i c u l a r p l a i n t i f f i s e n t i t l e d t o
p r o t e c t i o n . W a u g h v . U n i v e r s i t y o f H a w a i i , 6 3 H a w . 1 1 7 ,
1 3 5 , 6 2 1 P . 2 d 9 5 7 , 9 7 0 ( 1 9 8 0 ) ; K e l l e y v . K o k u a S a l e s &
S u p p l y , L t d . , 5 6 H a w . 2 0 4 , 2 0 7 , 5 3 2 P . 2 d 6 7 3 , 6 7 5 ( 1 9 7 5 ) .
L e g a l d u t i e s a r e n o t d i s c o v e r a b l e f a c t s o f n a t u r e , b u t
m e r e l y c o n c l u s o r y e x p r e s s i o n s t h a t , i n c a s e s o f a p a r t i c u l a r
t y p e , l i a b i l i t y s h o u l d b e i m p o s e d f o r d a m a g e d o n e . I d .
( q u o t i n g T a r a s o f f [ v . R e g e n t s o f t h e U n i v . o f C a l i f o r n i a ] , ] ,
. . . 1 7 C a l . 3 d 4 2 5 , 1 3 1 C a l . R p t r . 1 4 , 5 5 1 P . 2 d [ 3 3 4 , ] 3 4 2

5 S i m i l a r l y , w e d i d n o t h o l d i n T o u c h e t t e t h a t t h e d e f e n d a n t o w e d a
d u t y t o t h e p l a i n t i f f s o n t h e g r o u n d s t h a t t h e d e f e n d a n t ’ s a f f i r m a t i v e c o n d u c t
i n t a u n t i n g h e r h u s b a n d ( t h e t h i r d p a r t y ) c a u s e d h e r h u s b a n d t o a s s a u l t t h e
p l a i n t i f f s . W e m e r e l y h e l d t h a t t h e t r i a l c o u r t e r r e d i n d i s m i s s i n g t h e
p l a i n t i f f s ’ c a u s e o f a c t i o n f o r f a i l u r e t o s t a t e a c l a i m w i t h o u t c o n s i d e r i n g
t h e p l a i n t i f f s ’ c o n t e n t i o n t h a t t h e r e m i g h t b e a d u t y p u r s u a n t t o R e s t a t e m e n t
( S e c o n d ) § 3 0 2 . S e e T o u c h e t t e , 8 2 H a w a i #i a t 3 0 3 – 0 4 , 9 2 2 P . 2 d 3 4 7 , 3 5 7 – 7 8 .
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[ ( C a l . 1 9 7 6 ) ] ) . I n d e t e r m i n i n g w h e t h e r o r n o t a d u t y i s
o w e d , w e m u s t w e i g h t h e c o n s i d e r a t i o n s o f p o l i c y w h i c h f a v o r
t h e a p p e l l a n t s ’ r e c o v e r y a g a i n s t t h o s e w h i c h f a v o r l i m i t i n g
t h e a p p e l l e e s ’ l i a b i l i t y . W a u g h , 6 3 H a w . a t 1 3 5 , 6 2 1 P . 2 d
a t 9 7 0 ; K e l l e y, 5 6 H a w . a t 2 0 7 , 5 3 2 P . 2 d a t 6 7 5 . T h e
q u e s t i o n o f w h e t h e r o n e o w e s a d u t y t o a n o t h e r m u s t b e
d e c i d e d o n a c a s e – b y – c a s e b a s i s . W a u g h , 6 3 H a w . a t 1 3 5 , 6 2 1
P . 2 d a t 9 7 0 . H o w e v e r , w e a r e r e l u c t a n t t o i m p o s e a n e w d u t y
u p o n m e m b e r s o f o u r s o c i e t y w i t h o u t a n y l o g i c a l , s o u n d , a n d
c o m p e l l i n g r e a s o n s t a k i n g i n t o c o n s i d e r a t i o n t h e s o c i a l a n d
h u m a n r e l a t i o n s h i p s o f o u r s o c i e t y . B i r m i n g h a m v . F o d o r ’ s
T r a v e l P u b l i c a t i o n s , I n c . , 7 3 H a w . 3 5 9 , 3 7 0 – 7 1 , 8 3 3 P . 2 d 7 0 ,
7 6 ( 1 9 9 2 ) ( h o l d i n g t h a t “ a p u b l i s h e r o f a w o r k o f g e n e r a l
c i r c u l a t i o n , t h a t n e i t h e r a u t h o r s n o r e x p r e s s l y g u a r a n t e e s
t h e c o n t e n t s o f i t s p u b l i c a t i o n , h a s n o d u t y t o w a r n t h e
r e a d i n g p u b l i c o f t h e a c c u r a c y o f t h e c o n t e n t s o f i t s
p u b l i c a t i o n ” ) ; J o h n s t o n v . K F C N a t ’ l M a n a g e m e n t C o . , 7 1 H a w .
2 2 9 , 2 3 2 – 3 3 , 7 8 8 P . 2 d 1 5 9 , 1 6 1 ( 1 9 9 0 ) ( d e c l i n i n g t o i m p o s e a
d u t y u p o n n o n – c o m m e r c i a l s u p p l i e r s o f a l c o h o l , i . e . , s o c i a l
h o s t s , t o p r o t e c t t h i r d p a r t i e s f r o m r i s k o f i n j u r i e s t h a t
m i g h t b e c a u s e d b y a d u l t s w h o c o n s u m e t h e s o c i a l h o s t s ’
a l c o h o l ) .

Blair, 95 Hawai#i at 259-60, 21 P.3d at 464-65 (citing Lee, 83
Hawai#i at 166, 925 P.2d at 336). We now turn to these policy
considerations and the cases from other jurisdictions that the
parties call to our attention.
We begin by noting that, although the certified
question inquires whether a duty is owed to a third party injured
in an accident caused by an adverse effect of negligently
prescribed medication, the facts supplied by the district court
suggest that the McKenzies’ negligence claim appears to rest on
three general theories. First, the McKenzies claim that the
decision to prescribe prazosin in the first instance constituted
negligence. Second, the McKenzies claim that the manner in which
Dr. Washecka prescribed the prazosin was negligent, namely, that
the dosages were too high. Third, the McKenzies claim that Dr.
Washecka was negligent because he did not provide Wilson with
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adequate warning of the danger associated with driving an
automobile while taking the medication. The first two theories
involve decisions such as whether to prescribe a medication at
all, which particular medication to prescribe, and the particular
dosage level or schedule to prescribe [hereinafter, prescribing
decisions]; the latter theory involves failure to warn. Although
the cases relied upon by the parties do not always expressly
delineate this distinction, the distinction is often a key factor
in their outcome. Accordingly, we consider the question of duty
with respect to negligent prescribing decisions and negligent
failure to warn separately. For each issue, we shall “weigh the
considerations of policy which favor” recovery “against those
which favor limiting” liability to determine if any logical,
sound, or compelling reason exists to impose a new duty.6

6 T h e M c K e n z i e s s u g g e s t t h a t t h i s q u e s t i o n w a s a l r e a d y a n s w e r e d i n
K a i l i e h a v . H a y e s, 5 6 H a w . 3 0 6 , 5 3 6 P . 2 d 5 6 8 ( 1 9 7 5 ) . I n K a i l i e h a , a H a w a i #i
r e s i d e n t v i s i t i n g i n V i r g i n i a s a w a p h y s i c i a n t h e r e a n d r e c e i v e d a
p r e s c r i p t i o n . I d . a t 3 0 6 , 5 3 6 P . 2 d a t 5 6 9 . S h o r t l y t h e r e a f t e r , t h e r e s i d e n t
r e t u r n e d h o m e a n d w a s i n v o l v e d i n a n a u t o m o b i l e a c c i d e n t i n H o n o l u l u , i n j u r i n g
t h e p l a i n t i f f , a n u n r e l a t e d t h i r d p a r t y w h o w a s a l s o a H a w a i #i r e s i d e n t . I d .
T h e p l a i n t i f f s u e d t h e V i r g i n i a p h y s i c i a n i n t h e c i r c u i t c o u r t o n t h e g r o u n d s
t h a t h i s n e g l i g e n t d i a g n o s i s a n d t r e a t m e n t w a s a p r o x i m a t e c a u s e o f t h e
a c c i d e n t . I d . a t 3 0 7 , 5 3 6 P . 2 d a t 5 6 9 . T h e n o n r e s i d e n t d e f e n d a n t p h y s i c i a n
f i l e d a s p e c i a l a p p e a r a n c e i n c i r c u i t c o u r t t o c o n t e s t p e r s o n a l j u r i s d i c t i o n .
I d . a t 3 0 7 , 5 3 6 P . 2 d a t 5 6 9 . T h i s c o u r t r e a s o n e d t h a t , f o r p u r p o s e s o f
e x e r c i s i n g j u r i s d i c t i o n p u r s u a n t t o H a w a i i ’ s “ l o n g a r m ” s t a t u t e , t h e
d e f e n d a n t ’ s c o n d u c t f e l l w i t h i n t h e d e f i n i t i o n o f t h e t e r m “ t o r t ” a s t h a t t e r m
w a s u s e d i n t h e s t a t u t e . S e e i d . H o w e v e r , t h e c o u r t c o n c l u d e d t h a t t h e
a s s e r t i o n o f j u r i s d i c t i o n o v e r t h e d e f e n d a n t w o u l d v i o l a t e h i s d u e p r o c e s s
r i g h t s u n d e r t h e f e d e r a l c o n s t i t u t i o n . S e e i d . a t 3 1 2 , 5 3 6 P . 2 d a t 5 7 2 . T h i s
c o u r t d i d n o t d e t e r m i n e w h e t h e r t h e c o m p l a i n t s t a t e d a l e g a l l y c o g n i z a b l e
c l a i m f o r r e l i e f – – i . e ., w h e t h e r t h e p h y s i c i a n o w e d a d u t y t o t h e n o n – p a t i e n t
p l a i n t i f f – – n o r w a s i t r e q u i r e d t o d o s o i n o r d e r t o r e a c h t h e j u r i s d i c t i o n
q u e s t i o n . A c c o r d i n g l y , K a i l i e h a i s i n a p p o s i t e t o t h i s c a s e .
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1.

Negligent Prescribing Decisions
The McKenzies argue that the fair allocation of the
costs of harm and the need for fair compensation to victims
mandates that physicians owe a duty to non-patient third parties
injured as a result of negligent prescribing decisions. Wilson
suggests that physicians owe a duty to the public generally.
Indeed, other courts have recognized that imposition of a tort
duty upon physicians for the benefit of the general public is not
new. See generally Gooden v. Tips, 651 S.W.2d 364, 370-71 (Tex.
Ct. App. 1983) (discussing statutory requirement that physicians
report the existence of certain sexually transmitted diseases to
health authorities); Welke v. Kuzilla, 375 N.W.2d 403, 406 (Mich.
Ct. App. 1986) (noting generally in discussion of duty that
highway safety is an important public concern). All of the
foregoing policy considerations are important. In addition, the
McKenzies cite to a number of cases, discussed infra, where other
courts appear to have permitted actions involving allegations of
negligent prescribing decisions to proceed.
In support of its argument that a physician never owes
a duty to non-patients, Kaiser cites to, inter alia, Lester v.
Hall, 970 P.2d 590 (N.M. 1998). In Lester, the plaintiff, a non-
patient of the defendant physician, was injured by the
physician’s patient in an auto accident. See id. at 591. The
plaintiff alleged that the physician negligently monitored his
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patient’s medication and failed to warn his patient that the
medication, lithium, could impair the patient’s driving ability.
Id. The patient had last seen the physician five days before the
accident. Id. Answering a certified question from the United
States District Court for the District of New Mexico, the New
Mexico Supreme Court held that the doctor owed no duty to the
non-patient plaintiff. Id. In so holding, the court considered
several important policies in balancing “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 592 (citations omitted), a duty analysis similar to our
own. Most significantly, the court was concerned that the
extension of a duty to non-patients “would have a potentially
serious chilling effect on the use of prescription medication in
medical care” and that it would intrude “upon the indispensable
loyalty which physicians must maintain towards their patient
regarding their medical care and treatment decisions” insofar as
physicians would have to choose between prescribing beneficial
medications to their patients and the risk that their prescribing
decisions may result in liability to unknown third parties. See
id. at 593; accord Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind.
1991).

Prescribing decisions must take into account
complicated issues concerning the potential benefits and risks to
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individual patients. Moreover, although we do not believe that
doctors would altogether stop prescribing beneficial medications
to their patients because of the risk of liability to third
parties, an expansion of such liability would certainly
discourage some prescriptions — particularly, as amicus curiae
HMA points out, the prescription of psychiatric medications that
necessarily have behavioral effects. The social utility of these
medications is enormous, and we do not want to discourage their
use. The risk of tort liability to individual patients should be
enough to discourage negligent prescribing decisions. As
discussed infra, the risk of injury to non-patient third parties
can be readily addressed through the more narrow question of
whether there is a duty to warn patients against driving while
under the influence of the medication.
Moreover, controversially but realistically, physicians
and patients must consider factors such as cost, cost-
effectiveness, and availability of insurance coverage in
prescribing decisions. Insurers likewise must consider treatment
effectiveness and cost in determining which treatments to pay for
and which medications to include on hospital and clinic
formularies. A decision to cover one type of treatment may
preclude funding for another. In this case, for example, the
McKenzies seek to hold Kaiser accountable for what they suggest
is Kaiser’s decision to require its physicians to prescribe
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prazosin instead of other preferable but more expensive
medications. Health care policy decisions require a complicated
array of considerations by a variety of private and public
decision makers, which include physicians, other professionals,
regulators, employers, patients, and other health care consumer
representatives who have a stake in such decisions. We believe
that these policy decisions are better left to the aforementioned
stakeholders than to judges and juries, at least with respect to
non-patient third parties injured in automobile accidents.
Similarly, individual treatment decisions are best left to
patients and their physicians. “[D]octors should not be asked to
weigh notions of liability in their already complex universe of
patient care.” Lester, 970 P.2d at 593 (internal quotation marks
omitted). Accordingly, considering the social utility of
medications, the multitude of issues that already must be
considered in prescribing decisions, the reality that existing
tort law which is applicable to the individual patient should be
sufficient to discourage negligent prescribing decisions, and the
fact that imposing a duty to warn may readily reduce the risk to
third parties, we discern no logical, sound, or compelling
reasons, under the present circumstances, to introduce into the
“already complex universe of patient care” the additional risk of
tort liability to non-patient third parties injured in automobile
accidents.

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To the extent that certain cases relied upon by the
McKenzies involve negligent prescribing decisions, we believe
they are distinguishable from the instant case. The cases cited
by the McKenzies involve the prescription of controlled
substances, which are well-known — even to the lay observer —
to be commonly abused and, when abused, to cause impairment in
many respects, including the impairment of driving ability.
Further, the cases involve circumstances where it is obvious from
the context that the “third party” presented an unreasonable
hazard to others.
For example, in Zavalas v. Olivares, 861 P.2d 1026
(Ore. Ct. App. 1993), the plaintiffs were killed or injured in an
automobile accident caused by a patient who overdosed on heroin
and Xanax (alprazolam), a controlled substance similar to Valium
(diazepam).7 Id. at 1026-27. The physician was purportedly
“easy” about prescribing Xanax and prescribed one hundred tablets
to the patient the first time he met her without obtaining a
complete history because he was pressed for time. Id. at 1027.
The physician also did not examine the patient’s arms and, thus,
did not notice the needle marks thereon. Id. Three days later,
the physician refilled the prescription, and several days
thereafter, the patient caused the accident. Id. At the time of

7 S e e , e . g . , D a n J . T e n n e n h o u s e , A t t o r n e y s M e d i c a l D e s k b o o k 3 D § 2 4 : 6
( 1 9 9 3 ) ( d e s c r i b i n g d r u g c l a s s i f i c a t i o n s ) a n d H a w a i #i R e v i s e d S t a t u t e s § 3 2 9 – 2 0
( S u p p . 2 0 0 1 ) ( i d e n t i f y i n g C l a s s I V c o n t r o l l e d s u b s t a n c e s ) .
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the accident the patient was found to have Xanax, heroin,
cocaine, and marijuana in her system. Id. Reversing a grant of
summary judgment in favor of the physician, the Oregon Court of
Appeals held that it was unwilling to categorically state, as a
matter of law, that the physician did not owe a duty to the
plaintiffs under any set of facts. Id. at 1029.
Similarly, in Welke, the Michigan Court of Appeals
reversed a grant of summary judgment in favor of the defendant
doctor where the doctor had allegedly improperly prescribed
controlled substances to a patient who killed the plaintiff in an
auto accident. Welke, 375 N.W.2d at 404; see also Welke v.
Kuzilla, 365 N.W.2d 205, 208 (Mich. App. 1985) (Bronson, J.,
dissenting).8 The doctor had also injected his patient, a friend
who was driving the doctor’s car at the time of the accident,
with an “unknown substance” the night before. Welke, 375 N.W.2d
at 404.

Finally, in Watkins v. United States, 589 F.2d 214 (5th
Cir. 1979), the United States Court of Appeals for the Fifth
Circuit, applying Alabama law and considering a challenge to the
sufficiency of the evidence, affirmed a verdict in favor of a
plaintiff who was injured in an automobile accident proximately
caused by the defendant physician’s prescription to the driver of

8 T h e l a t t e r c a s e , i n w h i c h t h e p l a i n t i f f s ’ a l l e g a t i o n s c o n c e r n i n g
c o n t r o l l e d s u b s t a n c e s a r e d i s c u s s e d , i s a n e a r l i e r a p p e l l a t e d e c i s i o n
i n v o l v i n g t h e s a m e c a s e .
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a large amount of Valium several days earlier. Id. at 217. In
so doing, the Fifth Circuit emphasized the trial court’s finding
that the prescribing physician had failed to inquire into the
patient’s recent psychiatric history, which the appeals court
implied would have “plainly preclude[d] the prescription.” See
id.

It is widely known, even among the lay public, that
individuals who abuse controlled substances can be impaired by
those substances. It is also widely known that individuals who
abuse controlled substances often seek to obtain access to these
substances by a variety of means, including misrepresenting their
need for the drugs to physicians and other health care providers.
The facts in the cases relied upon by the McKenzies implicate the
foregoing concerns where it was foreseeable that the patient
“could not be expected to take the medicine prescribed . . . in
the manner intended.” See Gooden, 651 S.W.2d at 365. Finally,
the serious adverse effects of drug abuse and the fact that
abusers of controlled substances can be dangerous to themselves
and others cannot be seriously disputed; for this reason, the
prescribing of controlled substances is already highly regulated
to a degree not present with other medical interventions. Thus,
the prescribing of controlled substances represents a unique set
of circumstances and implicates policy considerations not

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applicable to the case at bar.9 Accordingly, without deciding
whether we would carve out an exception in a case involving
controlled substances, we hold that a physician does not owe a
duty to non-patient third parties injured in an automobile
accident caused by the patient’s adverse reaction to a medication
negligently prescribed by the physician three days earlier where
the negligence involves prescribing decisions as that term is
used in this opinion.
Negligent Failure to Warn of Driving Risks
2.
If Dr. Washecka owes any duty to the McKenzies in this
case, such a duty arises from negligently failing to warn Wilson

9 I n a d d i t i o n , o t h e r c a s e s r e l i e d u p o n b y t h e M c K e n z i e s a r e
i n a p p l i c a b l e t o t h e i n s t a n t c a s e . I n F r e e s e v . L e m o n, 2 1 0 N . W . 2 d 5 7 6 ( I o w a
1 9 7 3 ) , t h e I o w a S u p r e m e C o u r t h e l d t h a t a d e f e n d a n t p h y s i c i a n m i g h t o w e a d u t y
t o u n k n o w n t h i r d p a r t i e s i n j u r e d i n a a u t o m o b i l e a c c i d e n t c a u s e d b y a s e i z u r e
p a t i e n t w h e r e i t w a s a l l e g e d t h a t t h e p h y s i c i a n h a d f a i l e d t o p r o p e r l y
d i a g n o s e a n d t r e a t a n e a r l i e r s e i z u r e s u f f e r e d b y t h e p a t i e n t a n d n e g l i g e n t l y
f a i l e d t o a d v i s e h i s p a t i e n t o f t h e r i s k s a s s o c i a t e d w i t h d r i v i n g a n
a u t o m o b i l e . I d . a t 5 7 8 – 8 0 . T h e c o u r t ’ s p r i m a r y r e a s o n i n g , h o w e v e r , a p p e a r e d
t o r e s t o n t h e f a c t t h a t t h e p h y s i c i a n r e p o r t e d l y f a i l e d t o w a r n h i s p a t i e n t
o f t h e r i s k o f d r i v i n g . S e e i d . a t 5 7 9 – 8 0 . T h e r e f o r e , F r e e s e i s m o r e o f a
“ f a i l u r e t o w a r n ” c a s e . S e e a l s o D u v a l l v . G o l d i n , 3 6 2 N . W . 2 d 2 7 5 , 2 7 9 ( M i c h
C t . A p p . 1 9 8 5 ) ( s e i z u r e p a t i e n t ) ; M y e r s v . Q u e s e n b e r r y, 1 9 3 C a l . R p t r . 7 3 3
( C a l . C t . A p p . 1 9 8 3 ) ( e m o t i o n a l l y u p s e t p a t i e n t w i t h u n s t a b l e d i a b e t e s ;
d i s c u s s e d i n f r a ) .
O t h e r c a s e s a r e s i m i l a r l y n o t a n a l o g o u s t o t h e i n s t a n t c a s e . S c h u s t e r
v . A l t e n b e r g , 4 2 4 N . W . 2 d 1 5 9 ( W i s . 1 9 8 8 ) , p r i m a r i l y i n v o l v e d t h e f a i l u r e t o
c o n t r o l a d a n g e r o u s p s y c h i a t r i c p a t i e n t . W h a r t o n T r a n s p o r t C o r p . v . B r i d g e s ,
6 0 6 S . W . 2 d 5 2 1 ( T e n n . 1 9 8 0 ) , i n v o l v e d a s u i t f o r i n d e m n i t y o r , a l t e r n a t i v e l y ,
c o n t r i b u t i o n , b y a p l a i n t i f f t r u c k i n g c o m p a n y a g a i n s t i t s o w n a g e n t , a n
i n d u s t r i a l m e d i c i n e p h y s i c i a n , f o r f a i l u r e t o d i s c o v e r a t r u c k d r i v e r ’ s
m e d i c a l p r o b l e m s – – i n c l u d i n g p o o r v i s i o n – – t h a t o s t e n s i b l y l e d t o t h e t r u c k
c o m p a n y p a y i n g c l a i m s t o s e t t l e a l a w s u i t b r o u g h t b y p e r s o n s i n j u r e d b y t h e
d r i v e r . S e e i d . a t 5 2 2 . B e c a u s e t h e e x p r e s s p u r p o s e o f t h e p h y s i c i a n ’ s
e x a m i n a t i o n w a s t o c e r t i f y t h e d r i v e r a s s a f e t o d r i v e , s e e i d . a t 5 2 6 – 2 8 ,
W h a r t o n i s n o t a n a l o g o u s t o t h i s c a s e . F i n a l l y , H a r d e n v . A l l s t a t e I n s . C o . ,
8 8 3 F . S u p p . 9 6 3 , 9 7 1 – 7 2 ( D . D e l . 1 9 9 5 ) , w h i c h c o n c l u d e d t h a t t h e d e f e n d a n t
p h y s i c i a n o w e d a d u t y t o a n o n – p a t i e n t o n t h e b a s i s o f t h e p h y s i c i a n ’ s
“ s p e c i a l r e l a t i o n s h i p ” w i t h a s e i z u r e p a t i e n t , i s b a s e d u p o n a n i n t e r p r e t a t i o n
o f R e s t a t e m e n t ( S e c o n d ) § 3 1 5 t h a t w e d o n o t s h a r e . S e e s u p r a S e c t i o n I I . A . 1 .
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about the risk of operating a vehicle while under the influence
of the medication. The strongest support for this proposition in
the case law can be found in Kaiser v. Suburban Transportation
System, 398 P.2d 14 (Wash. 1965). In Kaiser, the defendant
physician prescribed a sedating antihistamine to his patient,
whom the physician knew to be a bus driver. Id. at 15-16. After
taking the first dose of the medication the following morning,
the driver went to work and was involved in an accident after
falling asleep while driving the bus. Id. at 19 (Hale, J.,
dissenting). The driver had apparently felt groggy before the
accident but continued to drive nonetheless. Id. A passenger on
the bus was injured in the accident and sued the doctor and the
bus company. Id. at 15 (majority opinion). The trial court
dismissed the case against the doctor at the conclusion of the
evidence on the grounds that the evidence did not show any
standard of care to which the doctor was bound and that, even if
the doctor was negligent in not warning the driver that the
medication may cause sedation, the driver’s negligence in failing
to stop when he began to feel drowsy was an intervening cause.
Id. The trial court, therefore, directed a verdict against the
driver. Id. The Washington Supreme Court reversed. Id. at 19.
In so doing, the supreme court noted that the evidence
suggested that the doctor may not have informed his bus driver-
patient of “the dangerous side effects of drowsiness or
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lassitude” from the drug and that expert evidence suggested that
it was negligent not to do so. Id. at 16. The court also held
that the plaintiff was entitled to judgment as a matter of law on
the issue of liability against either the bus driver, the doctor,
or both, depending upon whether the doctor had informed the
driver of the risk of drowsiness and whether the driver was
contributorily negligent. Id. at 18-19. In remanding the case,
the court held that:

T h e j u r y s h o u l d b e d i r e c t e d t h a t ( a ) i n t h e e v e n t i t
f i n d s n o w a r n i n g w a s g i v e n t h e b u s d r i v e r a s t o t h e s i d e
e f f e c t s o f t h e d r u g , i t s h a l l b r i n g i n a v e r d i c t a g a i n s t
. . . t h e d o c t o r ; ( b ) i n t h e e v e n t t h e j u r y f i n d s t h e b u s
d r i v e r f a i l e d t o e x e r c i s e t h e h i g h e s t d e g r e e o f c a r e , e v e n
t h o u g h h e w a s g i v e n n o w a r n i n g a s t o t h e s i d e e f f e c t s o f t h e
d r u g , t h e j u r y s h a l l a l s o b r i n g i n a v e r d i c t a g a i n s t t h e b u s
c o m p a n y a n d t h e d r i v e r ; a n d ( c ) i n t h e e v e n t t h e j u r y f i n d s
t h a t a w a r n i n g o f t h e s i d e e f f e c t s o f t h e d r u g w a s g i v e n t o
t h e b u s d r i v e r , t h e n t h e v e r d i c t s h a l l b e a g a i n s t t h e b u s
c o m p a n y a n d t h e d r i v e r o n l y .
Id. at 19. Thus, the basis of the doctor’s duty to the non-
patient bus passenger stemmed solely from the need to warn his
patient, a bus driver, of the potential side effect of
drowsiness.
Indeed, in many of the cases discussed in the previous
section in which it was determined that a physician may owe a
duty to non-patients, it appears that the physician’s failure to
warn his or her patient of the potential effects of the patient’s
medication or condition on driving ability was the predominant
factor in the court’s decision. In Gooden, for example, the
Texas Court of Appeals reversed the trial court’s grant of
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judgment on the pleadings in favor of the physician defendant
where the physician allegedly prescribed Quaalude to a patient
who subsequently injured the plaintiff in an auto accident. See
Gooden, 651 S.W.2d at 365. The patient had been a patient of the
doctor for twenty years and the physician was aware of the
patient’s drug abuse problems. See id. The court held that the
physician “may have had a duty to warn his patient not to drive.”
Id. at 370 (emphasis in original); see also Freese, Myers, and
Duvall, supra note 9. Moreover, although the courts in Welke and
Schuster did not expressly discuss the failure to warn issue as a
predominant factor in their reasoning, failure to warn may have
played some role in the decision not to preclude all chance of
liability before trial. See Welke, 365 N.W.2d at 208 (decided at
summary judgment stage); Schuster, 424 N.W.2d at 229-30 (decided
on pleadings). In these cases, failure to warn was included
among several other claims which both courts allowed to proceed.
Kaiser relies primarily upon Lester, Webb, Werner v.
Varner, Stafford & Seaman, P.A., 659 So.2d 1308 (Fla. App. 1995),
Conboy v. Mogeloff, 567 N.Y.S.2d 960 (App. Div. 1991), and Kirk
v. Michael Reese Hospital & Medical Center, 513 N.E.2d 387 (Ill.
1987), to support its argument that there should never be a duty
to non-patient third parties. However, these cases offer weak
support for the proposition that there is never a duty to warn of
the risks of operating a vehicle while taking medication.
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Although the rationale relied upon in Lester and Webb (that the
beneficial use of medications will be chilled) and the other
considerations discussed earlier may be compelling justification
for refusing to extend a duty to non-patient third parties for
negligent prescribing decisions, these considerations are less
persuasive when applied to the question whether physicians owe a
duty to third parties to warn their patients of the potential
effect on driving ability.10 Whether there is a duty in such
circumstances must again be determined by balancing the
considerations in favor of — and against — imposing such a
duty.

It appears obvious that warning a patient not to drive
because his or her driving ability may be impaired by a
medication could potentially prevent significant harm to third
parties. There is “little [social] utility in failing to warn
patients about the effects of a drug or condition that are known
to the physician but are likely to be unknown to the patient.”
Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).
Furthermore, a physician already owes a duty to his or her
patient under existing tort law to warn the patient of such a
potential adverse effect. Thus, imposition of a duty for the

10 I n d e e d , i n W e b b , w h i c h i n v o l v e d a n a l l e g a t i o n t h a t t h e d e f e n d a n t
p h y s i c i a n n e g l i g e n t l y p r e s c r i b e d a n a b o l i c s t e r o i d s , c a u s i n g h i s p a t i e n t t o
b e c o m e v i o l e n t a n d i n j u r e t h e p l a i n t i f f , t h e c o u r t d i d n o t s e p a r a t e l y a d d r e s s
t h e i s s u e o f n e g l i g e n t f a i l u r e t o w a r n o f t h e s i d e e f f e c t s o f t h e
p r e s c r i p t i o n . S e e W e b b , 5 7 5 N . E . 2 d a t 9 9 5 – 9 7 .
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benefit of third parties is not likely to require significant
changes in prescribing behavior.
One consideration opposing imposition of a duty to warn
derives from the fact that warnings may not be effective in all
circumstances. Sometimes, the incremental benefit to be obtained
from requiring warnings may not be significant.11 For example,
the court in Lester expressed doubt about the effectiveness of
warnings:

I n d e t e r m i n i n g w h e t h e r t o e r e c t a l e g a l d u t y t o w a r n , w e
m u s t a l s o c o n s i d e r t h e e f f i c a c y o f t h a t w a r n i n g i n
p r e v e n t i n g i n j u r y t o t h i r d p a r t i e s . W e c a n n o t s i m p l y a s s u m e
t h a t a p e r s o n w h o i s a d v i s e d n o t t o d r i v e w i l l a c t u a l l y
r e s p o n d a n d r e f r a i n f r o m d r i v i n g . T h e c o n s e q u e n c e s o f
p l a c i n g a l e g a l d u t y o n p h y s i c i a n s t o w a r n m a y s u b j e c t t h e m
t o s u b s t a n t i a l l i a b i l i t y e v e n t h o u g h t h e i r w a r n i n g s m a y n o t
b e e f f e c t i v e t o e l i m i n a t e t h e r i s k i n m a n y c a s e s .
U n f o r t u n a t e l y , m a n y p a t i e n t s d o n o t h e e d t h e a d m o n i t i o n s o f
t h e i r p h y s i c i a n s e v e n t h o u g h t h e c o n s e q u e n c e s m a y b e l i f e –
t h r e a t e n i n g t o t h e p a t i e n t o r o t h e r s .
Id. at 597 (quoting Praesel, 967 S.W.2d at 398). In Lester,
however, the plaintiff did not claim that the medication had been
prescribed for the first time by the defendant physician five
days before the automobile accident; rather, the plaintiff
claimed that the physician had “last treated” the patient five
days before the accident. Lester, 970 P.2d at 591. A warning is
less necessary where a patient has previously taken the

11 I n s o m e c i r c u m s t a n c e s , a n i n c r e m e n t a l b e n e f i t m a y b e o f f s e t b y t h e
i n c r e a s e d b u r d e n t h a t i t w o u l d i m p o s e . F o r e x a m p l e , t h e “ d i v i d e d l o y a l t i e s ”
a r g u m e n t p u t f o r t h b y K a i s e r i s a l s o n o t i n s i g n i f i c a n t i n t h a t m a n y p h y s i c i a n s
a n d t h e i r p a t i e n t s – – w h o s h o u l d o r d i n a r i l y h a v e a c o n f i d e n t i a l r e l a t i o n s h i p
i n w h i c h t h e p h y s i c i a n i s l o y a l t o t h e p a t i e n t ’ s i n t e r e s t s – – m a y b e p l a c e d i n
t h e p o s i t i o n o f h a v i n g a d v e r s e l e g a l i n t e r e s t s a s t h i r d p a r t i e s s e e k t o s u e
b o t h t h e p a t i e n t a n d t h e p h y s i c i a n .
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prescribed medication and is presumably aware of the medication’s
effect upon himself or herself. From the perspective of the
physician, the foreseeability of injury to non-patients due to
automobile accidents is considerably less under such
circumstances.
Moreover, it cannot be assumed that warnings will
necessarily or usually be ineffective. For example, in Myers,
the California appeals court held that a complaint stated a cause
of action against the defendant doctors for negligently failing
to warn their patient against driving in an uncontrolled diabetic
condition complicated by the fact that the patient was
emotionally distraught after learning that she was carrying a
dead fetus. Meyers, 193 Cal. Rptr. at 733-34. The plaintiff was
injured in an accident caused by the patient shortly after she
left the clinic to drive to the hospital at the doctors’ behest.
Id. One of the reasons offered by the court for imposing a duty
was that the doctors could easily have warned their patient not
to drive in “her irrational and uncontrolled diabetic condition.”
Id. at 735. The court noted that such a warning would likely
have been effective: “[h]aving otherwise complied with her
doctors’ professional recommendations, [the patient] presumably

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would have continued to follow their advice had [the doctors]
warned her not to drive.” Id.12
In many circumstances, however, the dangers associated
with driving and a particular medication may already be commonly
known or already known to the individual patient. In a related
context, the court in Praesel, concluding that physicians do not
owe a duty to non-patients to warn seizure patients against
driving, reasoned:

B a l a n c i n g b o t h t h e n e e d f o r a n d t h e e f f e c t i v e n e s s o f a
w a r n i n g t o a p a t i e n t w h o a l r e a d y k n o w s t h a t h e o r s h e
s u f f e r s f r o m s e i z u r e s a g a i n s t t h e b u r d e n o f l i a b i l i t y t o
t h i r d p a r t i e s , w e c o n c l u d e t h a t t h e b e n e f i t o f w a r n i n g a n
e p i l e p t i c n o t t o d r i v e i s i n c r e m e n t a l b u t t h a t t h e
c o n s e q u e n c e s o f i m p o s i n g a d u t y a r e g r e a t . T h e
r e s p o n s i b i l i t y f o r s a f e o p e r a t i o n o f a v e h i c l e s h o u l d r e m a i n
p r i m a r i l y w i t h t h e d r i v e r w h o i s c a p a b l e o f a s c e r t a i n i n g
w h e t h e r i t i s l a w f u l t o c o n t i n u e t o d r i v e o n c e a d i s o r d e r
s u c h a s e p i l e p s y h a s b e e n d i a g n o s e d a n d s e i z u r e s h a v e
o c c u r r e d . A c c o r d i n g l y , w e d e c l i n e t o i m p o s e o n p h y s i c i a n s a
d u t y t o t h i r d p a r t i e s t o w a r n a n e p i l e p t i c p a t i e n t n o t t o
d r i v e .
Praesel, 967 S.W.2d at 398. Thus, the scope of the physician’s
duty may be limited in situations where the danger is obvious, a
warning would be futile, or the patient is already aware of the
risk through other means.
To summarize, we balance the considerations in favor of
imposing a duty to warn for the benefit of third parties against

12 T h e c o u r t i n M y e r s c h a r a c t e r i z e d t h e d o c t o r s ’ a c t i o n s a s
“ n o n f e a s a n c e ” a n d c o n c l u d e d t h a t t h e d o c t o r s h a d a “ s p e c i a l r e l a t i o n s h i p ” w i t h
t h e i r p a t i e n t e n t i t l i n g t h e t h i r d p a r t y p l a i n t i f f t o p r o t e c t i o n . S e e M y e r s ,
1 9 3 C a l R p t r . a t 7 3 4 – 3 5 . I n a s m u c h a s t h e i n s t a n t c a s e i n v o l v e s t h e
a f f i r m a t i v e a c t o f p r e s c r i b i n g m e d i c a t i o n w h e r e a s M y e r s d o e s n o t , t h e “ s p e c i a l
r e l a t i o n s h i p ” a s p e c t o f M y e r s i s i n a p p o s i t e t o t h e i n s t a n t c a s e .
N e v e r t h e l e s s , t h e o b s e r v a t i o n s o f t h e c o u r t i n M y e r s c o n c e r n i n g t h e e f f i c a c y
o f w a r n i n g s a r e a p p l i c a b l e h e r e .
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the considerations militating against imposition of a duty. The
primary considerations favoring a duty are that: (1) it is
evident that a patient who is unaware of the risk of driving
while under the influence of a particular prescription medication
will probably do so; (2) warning against such activity could
prevent substantial harm; (3) imposing a duty would create little
additional burden upon physicians because physicians already owe
their own patients the same duty; and (4) the majority of
jurisdictions appear to recognize a duty under some
circumstances. The primary consideration militating against the
imposition of a duty is that it may not be worth the marginal
benefit, in some circumstances, where the effectiveness of the
warning is minimal or where the reasonable patient should be
aware of the risk. Such circumstances may include, e.g.,
situations where patients have previously taken a particular
medication and where patients are prescribed medications commonly
known to affect driving ability. “[T]he relative knowledge of
the risk as between a patient and a physician is [a] factor to
consider in deciding the threshold question of whether a
physician owes a duty to third parties to warn a patient.”
Praesel, 967 S.W.2d at 398.13 Balancing these considerations, we

13 I n t h i s r e g a r d , w e d i s a g r e e w i t h t h e c a t e g o r i c a l r e a s o n i n g o f t h e
N e w Y o r k A p p e l l a t e D i v i s i o n i n C o n b o y. I n t h a t c a s e , t h e p l a i n t i f f s , w h o w e r e
c h i l d r e n i n j u r e d i n a n a u t o a c c i d e n t c a u s e d b y t h e d o c t o r ’ s p a t i e n t , a l l e g e d
t h a t t h e p a t i e n t h a d i n q u i r e d o f t h e p h y s i c i a n w h e t h e r s h e c o u l d d r i v e w h i l e
t a k i n g t h e m e d i c a t i o n , a n d t h e p h y s i c i a n a d v i s e d h e r t h a t s h e i n f a c t c o u l d
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believe that a logical reason exists to impose upon physicians,
for the benefit of third parties, a duty to advise their patients
that a medication may affect the patient’s driving ability when
such a duty would otherwise be owed to the patient.
As presented, the facts in this case do not suggest
that the adverse effects of prazosin are commonly known by the
lay public; nor do the facts suggest that Wilson was likely to
know the adverse effects without a warning. Dr. Washecka was in
a far better position to have such knowledge. Wilson had started
taking the medication only three days earlier and, from Dr.

13( . . . c o n t i n u e d )
d r i v e w i t h o u t t e l l i n g h e r t h a t t h e m e d i c a t i o n h a d a s e d a t i v e e f f e c t , w h i c h
p r e s u m a b l y c o n t r i b u t e d t o t h e a c c i d e n t . C o n b o y, 5 6 7 N . Y . S . 2 d a t 9 6 1 .
R e v e r s i n g t h e t r i a l c o u r t ’ s d e n i a l o f s u m m a r y j u d g m e n t o n b e h a l f o f t h e
d o c t o r , t h e a p p e l l a t e d i v i s i o n h e l d t h a t t h e p h y s i c i a n d i d n o t o w e a d u t y t o
t h e p l a i n t i f f s b e c a u s e t h e p h y s i c i a n d i d n o t h a v e s u f f i c i e n t a b i l i t y a n d
a u t h o r i t y t o c o n t r o l h i s p a t i e n t . I d . a t 9 6 1 – 6 2 . T h e c o u r t r e a s o n e d :
[ T h e p a t i e n t ] c o n s u l t e d w i t h [ t h e d e f e n d a n t p h y s i c i a n ] f o r
h e a d a c h e s . T h e s e r v i c e s r e n d e r e d b y d e f e n d a n t w e r e
e x a m i n a t i o n , d i a g n o s i s , p r e s c r i p t i o n a n d a d v i c e . [ T h e
p a t i e n t ] w a s f r e e t o a c c e p t o r r e j e c t d e f e n d a n t ’ s d i a g n o s i s
a n d a d v i c e a n d s h e w a s a t l i b e r t y t o s e e k a s e c o n d o p i n i o n .
I n s h o r t , s h e h a d t h e r i g h t t o d e c i d e w h a t t r e a t m e n t a n d
a d v i c e s h e w o u l d a c c e p t o r r e j e c t .
I d . ( c i t a t i o n o m i t t e d ) . A l t h o u g h i t i s t r u e t h a t t h e d o c t o r c o u l d n o t h a v e
“ c o n t r o l l e d ” h i s p a t i e n t , t h e p a t i e n t c o u l d n o t h a v e a c t e d u p o n t h e d o c t o r ’ s
a d v i c e i n a n i n f o r m e d m a n n e r i f t h e a d v i c e w a s i n a c c u r a t e o r i n c o m p l e t e .
W e a l s o d e c l i n e t o c o n s i d e r K i r k a n d W e r n e r a s p e r s u a s i v e a u t h o r i t y f o r
t h e p r o p o s i t i o n t h a t t h e r e i s n e v e r a d u t y t o w a r n o f t h e e f f e c t s o f d r i v i n g .
I n K i r k , t h e p a t i e n t i n v o l v e d i n a n a u t o m o b i l e a c c i d e n t i n w h i c h t h e p l a i n t i f f
w a s i n j u r e d h a d b e e n d i s c h a r g e d f r o m a p s y c h i a t r i c f a c i l i t y o n t h e s a m e d a y o f
t h e a c c i d e n t a n d c l a i m e d t h a t t h e d e f e n d a n t p h y s i c i a n s w e r e n e g l i g e n t i n n o t
w a r n i n g t h e p a t i e n t t h a t t h e a n t i p s y c h o t i c m e d i c a t i o n s h e w a s t a k i n g c o u l d
“ d i m i n i s h ” h i s “ m e n t a l a b i l i t i e s [ . ] ” I d . a t 5 1 4 – 1 5 . T h e I l l i n o i s S u p r e m e
C o u r t d e c l i n e d t o i m p o s e a d u t y o n t h e b r o a d e r g r o u n d s t h a t n o d u t y e x i s t s
a b s e n t a d i r e c t o r s p e c i a l r e l a t i o n s h i p a n d r e f u s e d t o s e p a r a t e l y a d d r e s s t h e
“ f a i l u r e t o w a r n ” a r g u m e n t . S e e i d . a t 5 3 2 . S i m i l a r l y , t h e c o u r t i n W e r n e r
d i d n o t i n d e p e n d e n t l y c o n s i d e r t h e “ f a i l u r e t o w a r n ” a r g u m e n t p r o f f e r e d b y t h e
p l a i n t i f f . S e e W e r n e r , 6 5 9 S o . 2 d a t 1 3 0 9 – 1 1 .
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Washecka’s instructions as they are presented to us, it appears
that the medication was still being adjusted to its effective
dosage. The facts presented to us thus do not indicate that
Wilson would be expected to have sufficient past familiarity with
its effects to preclude imposition of a duty. Under these
circumstances, if Dr. Washecka owed Wilson a duty to inform him
about the effects that prazosin may have on his driving ability
(i.e., if it would have been negligent not to inform his own
patient), then Dr. Washecka owes the McKenzies a duty to inform
Wilson about the possibility that prazosin would adversely affect
Wilson’s driving ability.
We emphasize that our answer to the certified question
is not intended, without more, to resolve the questions whether
Dr. Washecka in fact owed Wilson a duty to warn him regarding the
effects that prazosin may have on his driving ability, whether
any warnings that Wilson received were adequate, or whether Dr.
Washecka’s conduct was the legal cause of any injury. These must
be determined in the course of the subsequent proceedings.
III. CONCLUSION
Based on the foregoing, we answer the certified
question as follows. A physician does not owe a duty to non-
patient third parties injured in an automobile accident caused by
the patient’s adverse reaction to a medication that is not a
controlled substance and negligently prescribed by the physician
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three days earlier where the alleged negligence involves such
“prescribing decisions” as whether to prescribe the medication in
the first instance, which medication to prescribe, and the dosage
prescribed. A physician owes a duty to non-patient third parties
injured in an automobile accident caused by an adverse reaction
to the medication prescribed three days earlier where the
physician has negligently failed to warn the patient that the
medication may impair driving ability and where the circumstances
are such that the reasonable patient could not have been expected
to be aware of the risk without the physician’s warning. Factors
to consider in determining whether the reasonable patient could
have been expected to be aware of the risk include: (1) the
relative knowledge of the risk as between lay persons and
physicians; (2) whether the patient has previously used the
medication and/or experienced the adverse effect; and (3) whether
a warning would otherwise have been futile.

On the briefs:
George W. Playdon, Jr.,
Kelvin H. Kaneshiro, M. Lorena
Garwood, Celia A. Urion, and
Jeffrey K. Hester (of Reinwald,
O’Connor & Playdon) for
defendants Hawai#i Permanente
Medical Group, Inc. and Kaiser
Foundation Health Plan, Inc.
Kathy K. Higham (of Kessner,
Duca, Umebayashi, Bain &
Matsunaga) for defendant
Jerry I. Wilson

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 L. Richard Fried, Jr., John
D. Thomas, Jr., Bert S. Sakuda,
and Patrick F. McTernan (of
Cronin, Fried, Sekiya, Kekina
& Fairbanks) for plaintiffs
Thomas J. Wong and Ann S.
Isobe (of Devens, Nakano, Saito,
Lee, Wong & Ching) for amicus
curiae The Hawaii Dental
Association
Gary N. Hagerman for amicus
curiae Hawaii Medical Association
Paul Maki for amicus curiae
The Hawaii Pharmacists Association

____________________________________
No. 23268 McKenzie v. Hawaii Permanente Medical
Group, Inc. — Opinion of the Court
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