This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 163
Edwin Davis et al.,
            Appellants,
        v.
South Nassau Communities
Hospital, et al.,
            Respondents.




          Joseph G. Dell, for appellants.
          James W. Tuffin, for respondents Hammock et al.
          Robert G. Vizza, for respondent South Nassau
Communities Hospital.
          The Medical Society of the State of New York et al.;
Healthcare Association of New York State, Inc., amici curiae.




FAHEY, J.:
          This action arises from a motor vehicle accident that
occurred after nonparty Lorraine A. Walsh was treated at
defendant South Nassau Communities Hospital (Hospital) by
defendants Regina E. Hammock, D.O. and Christine DeLuca, RPA-C,

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that is, medical professionals employed by defendant Island
Medical Physicians, P.C. (collectively, Island Medical
defendants).   As a part of that treatment, defendants
intravenously administered to Walsh an opioid narcotic painkiller
and a benzodiazepine drug without warning her that such
medication either impaired or could impair her ability to safely
operate an automobile.   Shortly thereafter, Walsh drove herself
from the Hospital and, while allegedly impaired by the medication
administered to her at that facility, she was involved in an
accident.   The automobile she operated crossed a double yellow
line and struck a bus driven by Edwin Davis (plaintiff).
            Here we are confronted with the question whether third
party liability can attach when a hospital administered drugs to
a patient and then released her, in an impaired state, without
any warning that the drugs affected or could have affected her
ability to safely operate a motor vehicle.   Stated differently,
the main question is whether defendants owed a duty to plaintiff
and his wife, Dianna,1 to warn Walsh that the medication
defendants gave to Walsh either impaired or could have impaired
her ability to safely operate a motor vehicle following her
departure from the Hospital.
            We are mindful that in addressing the modification of a
legal duty, its reach must be limited by what is foreseeable.


     1
          Dianna Davis was not involved in the accident, but she
has asserted a derivative cause of action for loss of consortium.

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Any expansion of duty is a power to be exercised cautiously, but
it is a power that must be used if the changing needs of society
are to be met.   It was succinctly stated by Judge Cardozo that
"[t]he principle that the danger must be imminent does not
change, but the things subject to the principle do change.     They
are whatever the needs of life in a developing civilization
require them to be" (MacPherson v Buick Motor Co., 217 NY 382,
391 [1916]).   For the reasons that follow, we conclude that where
a medical provider has administered to a patient medication that
impairs or could impair the patient’s ability to safely operate
an automobile, the medical provider has a duty to third parties
to warn the patient of that danger.
                                 I.
          On March 4, 2009, Walsh sought treatment at the
Hospital’s emergency room.    According to plaintiffs, Walsh’s
medical records indicate that she drove herself to the Hospital,
where she was intravenously administered Dilaudid, an opioid
narcotic painkiller, and Ativan, a benzodiazepine drug, at 11:00
a.m.
          The record reflects that “[c]ommon side effects [of
Ativan] include sedation, dizziness, weakness, unsteadiness, and
disorientation.”   Plaintiffs’ expert averred that such drug has a
“sedative/hypnotic” effect.    Plaintiffs’ expert also explained
that “Dilaudid has two to eight times the painkilling effect of
morphine,” that the half-life of intravenously-administered


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Dilaudid is two to four hours, and that the Dilaudid package
label and package insert contain various cautionary instructions
pertinent to this matter.   For example, plaintiffs’ expert noted
that “the package label for Dialudid states that it ‘may impair
mental and/or physical ability needed to perform potentially
hazardous activities such as driving a car or operating
machinery.’ ”   The same expert further noted that the section of
the package insert for Dilaudid “titled Use in Ambulatory
Patients[] states that the drug ‘may impair mental and/or
physical ability required for the performance of potentially
hazardous tasks (e.g., driving, operating machinery).    Patients
should be cautioned accordingly.’ ”     In the words of that expert,
the “insert also states that the most common adverse effects of
[Dilaudid] are ‘more prominent in[, inter alia,] ambulatory
patients.’ ”
          Walsh was discharged from the Hospital at 12:30 p.m. on
the date in question.   She drove herself away from that facility.
Nineteen minutes after that discharge, Walsh was involved in a
motor vehicle accident in which the vehicle she was driving
crossed a double yellow line and struck an automobile operated by
plaintiff. According to plaintiffs, the accident occurred while
Walsh was in “a state of disorientation” and “under the influence
of the aforementioned drugs.”
          Plaintiffs subsequently commenced this action against
the Island Medical defendants and the Hospital.    The complaint


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alleges, in relevant part, that Walsh sought the professional
care of defendants on the date in question; that defendants
rendered medical care to Walsh at that time; that, in the course
of rendering such care to Walsh, defendants administered to Walsh
the medication at issue; that defendants did not warn Walsh of
the effects of such medication; and that the accident occurred
while Walsh was affected by such medication.   Based on those
allegations, plaintiffs seek damages for injuries they sustained
as the result of defendants’ alleged medical malpractice in
treating Walsh.
          After issue was joined, the Island Medical defendants
moved to dismiss the complaint for failure to state a cause of
action (see CPLR 3211 [a] [7]), essentially contending that they
did not owe plaintiffs a duty of care inasmuch as plaintiffs were
third parties to the treatment rendered to Walsh.   The Hospital
cross-moved for the same relief, while plaintiffs cross-moved for
an order both granting leave to serve an amended complaint
asserting a cause of action for negligence and consolidating this
action with two other actions arising from the subject accident.
Supreme Court granted the motion of the Island Medical defendants
and the cross motion of the Hospital seeking dismissal of the
complaint while concomitantly denying plaintiffs’ cross motion.
On appeal, the Appellate Division affirmed, reasoning that
because “only Walsh . . . had a physician-patient relationship
with the defendants[,] . . . the allegations did not support a


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duty of care owed by the defendants to the injured plaintiff”
(119 AD3d 512, 514 [2d Dept 2014]).      We granted plaintiffs leave
to appeal (24 NY3d 905 [2014]).
                                  II.
           Under these facts, defendants owed to plaintiffs a duty
to warn Walsh that the medication administered to her either
impaired or could have impaired her ability to safely operate an
automobile.   We begin our discussion of that issue with reference
to the principles of law that inform our review.
           In the context of a motion to dismiss pursuant to CPLR
3211, we “determine only whether the facts as alleged fit within
any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88
[1994]).   “[T]he criterion is whether the proponent of the
pleading has a cause of action, not whether he [or she] has
stated one” (id. at 88 [internal quotation marks omitted]).      We
“may freely consider affidavits submitted by the plaintiff to
remedy any defects in the complaint” (id.).
           Similarly germane is our jurisprudence with respect to
the recognition of a duty of care.      “The threshold question in
any negligence action is[] [whether the] defendant owe[s] a
legally recognized duty of care to [the] plaintiff” (Hamilton v
Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]).      “The question of
whether a member or group of society owes a duty of care to
reasonably avoid injury to another is [one] of law for the
courts” (Purdy v Public Adm’r of County of Westchester, 72 NY2d


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1, 8 [1988], rearg denied 72 NY2d 953 [1988]).     “Courts resolve
legal duty questions by resort to common concepts of morality,
logic and consideration of the social consequences of imposing
the duty” (Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90
NY2d 606, 612 [1997]; see Palka v Servicemaster Mgt. Servs.
Corp., 83 NY2d 579, 586 [1994]).     A critical consideration in
determining whether a duty exists is whether “the defendant’s
relationship with either the tortfeasor or the plaintiff places
the defendant in the best position to protect against the risk of
harm” (Hamilton, 96 NY2d at 233).
          Said another way, our calculus is such that we assign
the responsibility of care to the person or entity that can most
effectively fulfill that obligation at the lowest cost.     It is
against that backdrop that we conclude that, under the facts
alleged, defendants owed plaintiffs a duty to warn Walsh that the
medication defendants administered to Walsh impaired her ability
to safely operate a motor vehicle.
                                A.
          In evaluating duty questions we have historically
proceeded carefully and with reluctance to expand an existing
duty of care.   In a series of cases including Eiseman v State of
New York (70 NY2d 175 [1987]), Purdy (72 NY2d 1), Tenuto (90 NY2d
606), and McNulty v City of New York (100 NY2d 227 [2003]), we
declined to impose a broad duty of care extending from physicians
past their patients “to members of the . . . community


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individually” (Eiseman, 70 NY2d at 188).   That is, we declined to
recognize a duty to an indeterminate, faceless, and ultimately
prohibitively large class of plaintiffs, as opposed to “a known
and identifiable group” (Palka, 83 NY2d at 589; see McNulty, 100
NY2d at 232; Eiseman, 70 NY2d at 187).
           Specifically, in Eiseman we considered circumstances in
which “an ex-felon with a history of drug abuse and criminal
conduct” was released from incarceration and “accepted into a
special State college program for the disadvantaged” (id. at
180).   Following his acceptance into that program, the ex-felon
raped and murdered a fellow student (see id.).   The administrator
of the decedent’s estate sought recovery from the State on the
ground that a prison physician negligently ignored the ex-felon’s
emotional instability and history of mental disorder in
completing an examination report.   The report was submitted in
conjunction with that convict’s admission into the college
program (see id. at 182-183).   Although we concluded that “the
physician plainly owed a duty of care to his patient and to
persons he knew or reasonably should have known were relying on
him for this service to his patient,” we maintained that “[t]he
physician did not . . . undertake a duty to the community at
large,” and more specifically that the physician did not owe a
duty of care to “members of the . . . community individually”
(id. at 188).   Consequently, we determined that the State, as the
employer of the physician, had no duty to inform the victim of


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the convict’s medical history (see id. at 188-189).
          About a year after deciding Eiseman, we determined
Purdy (72 NY2d 1).   In that case the plaintiff was struck and
injured by a speeding car while he patronized a gas station.       The
offending vehicle was operated by a resident of the defendant-
nursing home, who had “a medical condition that left her
susceptible to fainting spells and blackouts” (id. at 6).     We
considered the question whether the nursing home and the
defendant-physician, who was merely the admitting physician at
the nursing home, “owed to [the] plaintiff--an unidentified
member of the public--a duty either to prevent [the resident]
from driving or to warn her of the dangers of driving given her
medical condition” (id.).   In doing so, we acknowledged that
“there exist special circumstances in which there is sufficient
authority and ability to control the conduct of third persons
that [have given rise to] a duty to do so” (id. at 8).   More
particularly, we indicated that those circumstances exist where
there is a special relationship, which we described as, inter
alia, “a relationship between [the] defendant and a third person
whose actions expose [the] plaintiff to harm such as would
require the defendant to attempt to control the third person’s
conduct” (id.).
          Nevertheless, on those facts we determined that there
was no “special relationship between [the] defendants and [the
resident] such as would require [the defendants] to control [the


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resident’s] conduct for the benefit of [the] plaintiff” (id.).
We specifically “conclude[d] . . . that neither [the nursing
home] nor [the physician] had the necessary authority or ability
to exercise such control over [the resident’s] conduct so as to
give rise to a duty on their part to protect [the] plaintiff--a
member of the general public” (id. at 8-9).
           After Purdy we heard Tenuto (90 NY2d 606), wherein we
concluded that, under the circumstances of that case, a physician
had a duty of reasonable care to the parents of a five-month-old
to whom he administered an oral polio vaccine.   The physician
allegedly did not advise the parents of their risk of exposure to
the polio virus following the administration of that vaccine, and
the plaintiff-father was subsequently afflicted with that
disease.   Relying on both foreign authorities and Eiseman (70
NY2d at 188), we indicated that members of a patient’s immediate
family or household who may suffer harm as a result of the
medical care a physician renders to that patient benefit from a
duty of care running to them from the physician (see Tenuto, 90
NY2d at 610-614).   In so concluding, we noted that there the
“existence of a special relationship sufficient to supply the
predicate for extending the duty to warn and advise [the]
plaintiffs of their peril [was] especially pointed [inasmuch as]
the physician [was] a pediatrician engaged by the parents to
provide medical services to their infant, and whose services, by
necessity, require[d] advising the patient’s parents” (id. at


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614).
          Tenuto was arguably constrained by our decision in
McNulty (100 NY2d 227).2   There we were called upon to decide
whether the defendant-physicians owed a duty of care to the
plaintiff, who was a friend of a woman they had treated for
infectious meningitis and who subsequently contracted that
disease herself.   In that case the physicians allegedly answered
in the negative the plaintiff’s question whether she needed
treatment after being in close contact with her infected friend
(id. at 229).   Significantly, we stated there was “no allegation
that [the] plaintiff’s injury arose from the [physicians’]
treatment of [the patient].”   We concluded that an extension of
the duty physicians owe their patients so as to cover the
plaintiff would have been unprecedented (McNulty, 100 NY2d at
234).3


     2
          After deciding Tenuto but before hearing McNulty we
determined Cohen v Cabrini Med. Ctr. (94 NY2d 639 [2000]),
wherein we refused to recognize a duty of care running from the
physician of the plaintiff’s husband to the plaintiff to prevent
the personal injuries complained of there, namely, the unwitting
diminishment of the ability of the plaintiff’s husband to
impregnate the plaintiff. We reasoned that a contrary holding
“would be an unwarranted extension of our narrowly drawn
jurisprudence with respect to malpractice liability to a
patient’s family member” (id. at 643).
     3
          Here we have specifically discussed the existence and
scope of duty in the context of the administration of medical
services. We note, however, that our caution in setting the
parameters of duty in that context is also evident in other
circumstances.
     For example, in D’Amico v Christie (71 NY2d 76 [1987]) we

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                               B.
          We left open the possibility of the recognition of a
duty in a case such as this through McNulty and Purdy.   In
McNulty, we observed that, “[i]n the limited circumstances where
we have expanded the duty [of care of a treating physician so as
to include a third party], the third party’s injury resulted from
the physician’s performance of the duty of care owed to the
patient” (McNulty, 100 NY2d at 233).   More importantly, in Purdy,
in addition to determining that neither the defendant-nursing
home nor the defendant-physician owed a duty to the public to


reiterated the rule that landowners “have a duty to control the
conduct of third persons on their premises when they have the
opportunity to control such persons and are reasonably aware of
the need for such control” (id. at 85). Through that opinion we
decided two appeals--D’Amico and Henry v Vann--and the second of
those appeals arose from circumstances in which an employer
detected an intoxicated employee, fired the employee, and told
the employee to leave the employer’s premises, whereupon the
dismissed employee drove approximately one-half mile away before
colliding with an oncoming vehicle (Henry, 71 NY2d at 82). On
those facts we concluded that the employer had no legal duty to
control the terminated employee’s conduct (id. at 89).
     Similarly, in Martino v Stolzman (18 NY3d 905 [2012]), we
applied the foregoing principles of D’Amico to social hosts,
ruling that such hosts owe no duty to protect third persons from
a guest who becomes intoxicated on and then drives from a
premises controlled by the hosts (id. at 908). Careful, too, was
our approach in Stiver v Good & Fair Carting & Moving, Inc. (9
NY3d 253 [2007]), in which we concluded that the inspector of a
motor vehicle involved in an accident attributable the mechanical
failure of that vehicle has no duty to third parties to properly
inspect that automobile (see id. at 255-257). We were likewise
circumspect in Hamilton (96 NY2d 222), wherein we concluded that
the defendant-handgun manufacturers did not owe “a duty [to the
plaintiffs, who were relatives of people killed by handguns,] to
exercise reasonable care in the marketing and distribution of the
handguns they manufacture”(id. at 230-231).

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warn the resident of the adverse effects of the medication that
had been prescribed to her, we acknowledged the plaintiff’s
citations to foreign authorities imposing a duty on a treating
physician in favor of unidentified members of the public to warn
a patient of the adverse effects of prescribed medication on the
safe operation of an automobile (see Purdy, 72 NY2d at 9-10).     In
concluding there that the defendant-physician bore no duty to the
general public to warn the resident of the dangers of driving
given her medical condition, we noted that such doctor
          “was not [the resident’s] treating physician,
          and therefore was under no legal obligation
          to warn [the resident] of possible dangers
          involved in activities in which she chose to
          engage off the premises of the facility.
          Nor[, we added,] ha[d] [the] plaintiff
          demonstrated that [the resident’s] impaired
          driving ability was attributable to any
          medication prescribed to her by [the
          physician] without appropriate warnings” (id.
          at 10).
          Our failure in Purdy to foreclose the prospect that a
treating physician who does not warn a patient of the dangers of
operating a motor vehicle in the face of a certain medical
condition could be held accountable for that omission by a member
of the general public logically left open the possibility that we
could one day recognize such a duty.
          This is an instance in which defendants' "relationship
with . . . the tortfeasor . . . place[d] [them] in the best
position to protect against the risk of harm" (Hamilton, 96 NY2d
at 233), and the balancing of factors such as the expectations of


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the parties and society in general, the proliferation of claims,
and public policies affecting the duty proposed herein (see
id. at 232) tilts in favor of establishing a duty running from
defendants to plaintiffs under the facts alleged in this case.
          In formulating duty,
          “[v]arious factors . . . have been given
          conscious or unconscious weight, including
          convenience of administration, capacity of
          the parties to bear the loss, a policy of
          preventing future injuries, [and] the moral
          blame attached to the wrongdoer. . . .
          Changing social conditions lead constantly to
          the recognition of new duties[, and] [n]o
          better general statement can be made than
          that the courts will find a duty where, in
          general, reasonable persons would recognize
          it and agree that it exists” (Prosser and
          Keaton, Torts § 54 at 359 [5th ed 1984]
          [footnotes omitted]).
          Here, put simply, to take the affirmative step of
administering the medication at issue without warning Walsh about
the disorienting effect of those drugs was to create a peril
affecting every motorist in Walsh’s vicinity.   Defendants are the
only ones who could have provided a proper warning of the effects
of that medication.   Consequently, on the facts alleged, we
conclude that defendants had a duty to plaintiffs to warn Walsh
that the drugs administered to her impaired her ability to safely
operate an automobile.4


     4
          There is support for our conclusion in other
jurisdictions. In Taylor v Smith (892 So2d 887 [Ala 2004]), the
Supreme Court of Alabama collected cases from seven jurisdictions
imposing a duty on physicians for the benefit of nonpatient
members of the driving public in support of its conclusion that

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“the duty of care owed by the director of a methadone-treatment
center to his patients extends to third-party motorists who are
injured in a foreseeable automobile accident with the patient
that results from the director’s administration of methadone”
(id. at 897; see id. at 893-894, citing McKenzie v Hawai’i
Permanente Med. Group, 98 Haw 296, 309, 47 P3d 1209, 1222 [2002]
[ruling that a physician “owes a duty to non-patient third
parties” to warn patients of possible adverse effects of
prescribed medication on their ability to safely operate a motor
vehicle, “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”]; Joy v Eastern Maine Med. Ctr.,
529 A2d 1364, 1365-1366 [Me 1987] [concluding that a physician
who treated a patient by placing a patch over one of the
patient’s eyes owed a duty to motorists to warn the patient
against driving while wearing the patch]; Welke v Kuzilla, 144
Mich App 245, 252, 375 NW2d 403, 406 [1985] [determining that a
physician who injected a patient with an “unknown substance” owed
a duty to a third-party motorist “within the scope of foreseeable
risk, by virtue of (the physician’s) special relationship with
(the patient)”]; Wilschinsky v Medina, 108 NM 511, 514-515, 775
P2d 713, 716-717 [1989] [concluding that physicians who inject a
patient “with drugs known to affect judgment and driving ability”
have “a duty to the driving public”]; Zavalas v State Dept. of
Corr., 124 Or App 166, 171, 861 P2d 1026, 1028 [1993], denying
review 319 Or 150, 877 P2d 86 [1994] [rejecting the contention
“that a physician has no duty to third parties ... who claim that
the physician's negligent treatment of a patient was the
foreseeable cause of their harm”]; Gooden v Tips, 651 SW2d 364,
369 [Tex App 1983] [“under proper facts, a physician can owe a
duty to use reasonable care to protect the driving public where
the physician's negligence in diagnosis or treatment of his
patient contributes to plaintiff's injuries”]; Schuster v
Altenberg, 144 Wis2d 223, 239–240, 424 NW2d 159, 166 [1988]
[rejecting the contention “that a psychotherapist (has no) duty
to warn third parties . . . .”]). The Taylor court also relied
on a case from an eighth jurisdiction, which distinguished “ ‘a
mere failure to warn’ ” from an affirmative act of failing to
take proper precautions where the physician has “ ‘administer[ed]
a drug which, when combined with other drugs or alcohol, may
severely impair the patient’ ”(id. at 894, quoting Cheeks v
Dorsey, 846 So2d 1169, 1173 [Fla 4th Dist Ct App 2003], denying
review 859 So2d 513 [Fla 2003] [emphases removed]). Similarly,
here, we have recognized a duty of care running from a physician

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to third parties where the physician fails to warn his or her
patient of potential physical impairments caused by a drug the
physician has administered, rather than merely prescribed, to the
patient.
     Moreover, our own canvas has revealed that at least eight
other jurisdictions appear to have recognized a duty running from
a physician past his or her patient to the general public to warn
the patient of the possible adverse effects of medication
administered or treatment rendered to the patient by the
physician (see Medina v Hochberg, 465 Mass 102, 107-108, 987 NE2d
1206, 1211 [2013] [acknowledging that the Supreme Judicial Court
of Massachusetts had previously “concluded that a physician may
be liable to a third party for failing to warn his or her patient
of the known side effects of medication prescribed by the
physician that might affect the patient’s ability to drive a
motor vehicle”]; Hardee v Bio-Medical Applications of South
Carolina, Inc., 370 SC 511, 516, 636 SE2d 629, 631-632 [2006] [“a
medical provider who provides treatment which it knows may have
detrimental effects on a patient's capacities and abilities owes
a duty to prevent harm to patients and to reasonably foreseeable
third parties by warning the patient of the attendant risks and
effects before administering the treatment”]; Burroughs v Magee,
118 SW3d 323, 333 [Tenn 2003] [holding, under the facts of that
case, that the defendant-physician “owed a duty of care (to
third-party motorists) to warn (a patient of the physician) of
the possible adverse effect of . . . two prescribed drugs on (the
patient’s) ability to safely operate a motor vehicle”]; Hoehn v
United States, 217 F Supp 2d 39, 41, 48-49 [DDC 2002] [deeming
viable a claim that “a hospital or physician owe(s) a duty to the
general public . . . to (warn) a heavily medicated patient . . .
about the danger of driving”]; Osborne v United States, 211 W Va
667, 669, 567 SE2d 677, 679 [2002] [recognizing that West
Virginia law permits a third party to bring a cause of action
against a health care provider for foreseeable injuries that were
proximately caused by the health care provider’s negligent
treatment of a tortfeasor patient]; Cram v Howell, 680 NE2d 1096,
1098 [Ind 1997] [concluding the defendant-physician had “a duty
of care to take reasonable precautions in monitoring, releasing,
and warning his patient for the protection of unknown third
persons potentially jeopardized by the patient’s driving upon
leaving the physician’s office” where the physician allegedly
administered to the patient certain immunizations or vaccinations
that caused the patient to experience “episodes of loss of
consciousness”]; Myers v Quesenberry, 144 Cal App 3d 888, 890,

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                               C.
          Our conclusion with respect to the duty owed in this
case is accompanied by three observations.   First, the “cost” of
the duty imposed upon physicians and hospitals should be a small
one: where a medical provider administers to a patient medication
that impairs or could impair the patient’s ability to safely
operate an automobile, the medical provider need do no more than
simply warn that patient of those dangers.   It is already the
function of a physician to advise the patient of the risks and
possible side effects of prescribed medication (see Wolfgruber v
Upjohn Co., 52 NY2d 768, 770 [1980], affg 72 AD2d 59, 61 [4th
Dept 1979] [“Since nonmedical consumers are legally precluded
from ‘self-prescribing’ prescription drugs, the physician's
function is to evaluate a patient's needs, assess the risks and


894, 193 Cal Rptr 733 [Ct App 4th Dist 1983] [observing, in the
context of concluding that “liability may be imposed against two
physicians for negligently failing to warn their patient of the
foreseeable and dangerous consequences of engaging in certain
conduct which proximately caused injuries to (the) plaintiff, a
third person,” that “(w)hen a physician furnishes medicine
causing drowsiness, he should warn his patient not to drive or
engage in other activities which are likely to cause injury”];
Kaiser v Suburban Transp. Sys., 65 Wash2d 461, 464, 398 P2d 14,
16 [1965], mod on other grounds 65 Wash2d 461, 401 P2d 350 [1965]
[concluding that the question whether the defendant-doctor was
negligent in failing to warn the patient-bus driver that a
prescribed drug could cause drowsiness was for a trier of fact]).
We note, however, that our decision herein is not grounded in
those foreign authorities inasmuch as our result is the product
not of “vote counting” but of our independent balancing of
factors including the expectations of the parties and of society,
the proliferation of claims, and public policies affecting the
duty we now recognize (see Hamilton, 96 NY2d at 232).

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                              - 18 -                        No. 163

benefits of available drugs and then prescribe a drug, advising
the patient of its risks and possible side effects”]; see also
Martin v Hacker, 83 NY2d 1, 9 [1993] [discussing the duty of a
prescription drug manufacturer to caution against a drug’s side
effects by giving adequate warning to the prescribing physician,
who “acts as an ‘informed intermediary’ . . . between the
manufacturer and the patient”]).   Our decision herein imposes no
additional obligation on a physician who administers prescribed
medication.5   Rather, we merely extend the scope of persons to
whom the physician may be responsible for failing to fulfill that
responsibility.
          Second, much as we are empowered to identify the duty
articulated herein, it is within our authority to clarify how
that obligation may be met.   In that vein we reiterate that
defendants and those similarly situated may comply with the duty
recognized herein merely by advising one to whom such medication
is administered of the dangers of that medication.   Indeed, this
case is not about preventing Walsh from leaving the Hospital, but
ensuring that when Walsh left the Hospital, she was properly
warned about the effects of the medication administered to her.



     5
          With respect to the minimal “cost” arising from the
duty imposed herein, we note that warnings that prescribed
medication impairs or could impair the patient’s ability to
safely operate an automobile are commonly administered when
filling a prescription at a pharmacy, and there is no reason why
a medical provider cannot take a similar, simple prophylactic
measure.

                              - 18 -
                              - 19 -                         No. 163

          Third, our decision herein should not be construed as
an erosion of the prevailing principle that courts should proceed
cautiously and carefully in recognizing a duty of care.    We have
previously noted that, “[w]hile the temptation is always great to
provide a form of relief to one who has suffered, . . . the law
cannot provide a remedy for every injury incurred” (Albala v City
of New York, 54 NY2d 269, 274 [1981]).   In other words, we have
said that “[n]ot all mistakes . . . result in liability”
(McNulty, 100 NY2d at 232).   This decision does not reflect a
retreat from those principles.
                                 III.
          We now turn to the remaining issue on appeal, which
pertains to the part of plaintiffs’ cross motion seeking leave to
serve an amended complaint.   That request was based on
plaintiffs’ desire to add a cause of action for negligence
against defendants based on plaintiffs’ theory that defendants
negligently caused Walsh to become “medically intoxicated and
cognitively impaired,” and that Walsh caused the accident because
of that impairment.
          As a general rule, “leave to amend a pleading should be
freely granted in the absence of prejudice to the nonmoving party
where the amendment is not patently lacking in merit . . . , and
the decision whether to grant leave to amend a complaint is
committed to the sound discretion of the court” (Pink v Ricci,
100 AD3d 1446, 1448 [4th Dept 2012] [internal quotation marks


                              - 19 -
                               - 20 -                       No. 163

omitted]; see CPLR 3025 [b]; Edenwald Contr. Co. v City of New
York, 60 NY2d 957, 959 [1983]).    “A complaint sounds in medical
malpractice rather than ordinary negligence where the challenged
conduct constitutes medical treatment or bears a substantial
relationship to the rendition of medical treatment by a licensed
physician to a particular patient” (1B NY PJI3d 2:150, at 46
[2015]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]
[“(A) claim sounds in medical malpractice when the challenged
conduct constitutes medical treatment or bears a substantial
relationship to the rendition of medical treatment by a licensed
physician.    By contrast, when the gravamen of the complaint is
not negligence in furnishing medical treatment to a patient, but
the hospital's failure in fulfilling a different duty, the claim
sounds in negligence”] [internal quotation marks and citation
omitted]).    Inasmuch as the “medical intoxication” of which
plaintiffs complain in the proposed new cause of action bears a
substantial relationship to the medical treatment administered by
defendants, we conclude that plaintiffs’ claims against
defendants sound in medical malpractice, rather than in
negligence.    Consequently, the part of the cross motion seeking
leave to serve an amended complaint asserting a cause of action
sounding in negligence was properly denied inasmuch as that
proposed cause of action lacks merit.6

     6
          We make a brief procedural point here. Plaintiffs
appeal to this Court from an Appellate Division order that
affirmed a Supreme Court judgment dismissing the complaint. This

                               - 20 -
                             - 21 -                       No. 163

          Accordingly, the order of the Appellate Division should
be modified, without costs, by denying the motions of the Island
Medical defendants and the Hospital to dismiss the complaint and,
as so modified, affirmed.




Court may review the propriety of the denial of plaintiffs’ cross
motion seeking leave to serve an amended complaint (see Oakes v
Patel, 20 NY3d 633, 644-645 [2013]). However, we do not address
the motion for consolidation, which was denied as academic below.
This Court is reinstating the complaint, so the request for
consolidation is no longer academic and may be raised again at
Supreme Court.

                             - 21 -
Davis v South Nassau Communities Hospital
No. 163




STEIN, J. (dissenting):
           The majority precipitously holds that medical
professionals working in a hospital emergency room owe a duty of
care to a non-patient member of the general public, requiring
medical professionals who administer medication that may affect a
patient's driving ability to warn the patient -- for the benefit
of a third-party motorist -- that he or she should not operate a
motor vehicle upon discharge.   Because I vehemently disagree that
a duty running from a physician to a non-patient should be
recognized under the circumstances presented here, I would
reaffirm our long-standing precedent holding that a physician's
duty of care does not extend beyond the patient to the community
at large, a result that is, I believe, mandated by any considered
weighing of the societal interests involved.   I, therefore,
dissent.
                                 I.
           I will begin with a recitation of the facts giving rise
to this action as recounted in the complaint -- which must be
accepted as true on this CPLR 3211 motion (see Leon v Martinez,
84 NY2d 83, 87-88 [1994]) -- and as supplemented by plaintiffs'
documentary submissions to the trial court.    One morning in March


                                - 1 -
                                - 2 -                          No. 163

2009, non-party Lorraine Walsh visited the emergency room of
defendant South Nassau Communities Hospital (the Hospital),
complaining of severe internal pain.    During intake, Walsh
informed emergency room staff that she had arrived at the
Hospital by car, but she did not specify whether she was the
driver of the vehicle.    Thereafter, Walsh was examined by
defendants Dr. Regina E. Hammock and Christine DeLuca (a
physician's assistant), both of whom were employed by defendant
Island Medical Physicians, P.C.    Because Walsh informed the
medical care providers that she was allergic to morphine, she was
administered Dilaudid and Ativan, intravenously, a few minutes
after 11:07 a.m.    According to plaintiffs' expert, Dr. Alan
Schechter, Dilaudid is an opioid narcotic painkiller and Ativan
is a benzodiazepine drug used, among other things, as a muscle
relaxant, a sedative, and to treat anxiety.    In Dr. Schechter's
opinion, any emergency room physician administering these
narcotic medications should be aware that they can impair a
patient's ability to drive, and the standard of care in the
medical community requires that physicians warn their patients
accordingly.
          Walsh was discharged, and she left the Hospital at
12:30 p.m., over one hour after the administration of Dilaudid
and Ativan.    Shortly thereafter, Walsh crossed a double yellow
line while operating her vehicle, striking an oncoming bus driven
by plaintiff Edwin Davis.    In a subsequent action commenced by


                                - 2 -
                                - 3 -                        No. 163

Walsh against defendants Hammock, DeLuca, and the Hospital, Walsh
claimed that the medications she was administered rendered her
"unconscious for a period of time" and caused or contributed to
the accident.
            Thereafter, Davis -- and his wife, derivatively --
commenced the instant action to recover damages for Davis's
personal injuries, asserting causes of action sounding in medical
malpractice and negligent hiring and training of medical
personnel against Hammock, DeLuca, and Island Medical Physicians,
P.C. (collectively the Island Medical defendants), as well as the
Hospital.    Plaintiffs alleged that defendants committed medical
malpractice by releasing Walsh from the Hospital "in severe pain,
a state of disorientation, under the influence of the
[administered drugs]" and without providing proper instructions
or "arranging her a safe method of travel home."
            After joinder of issue, the Hospital and the Island
Medical defendants moved to dismiss the complaint, asserting that
plaintiffs had failed to state a cause of action for medical
malpractice because the complaint did not plead the existence of
a cognizable duty of care inasmuch as there was no allegation of
a physician-patient relationship between Davis and defendants.
Plaintiffs opposed the motion to dismiss and cross-moved for,
among other things, leave to amend the complaint to add a cause
of action sounding in simple negligence, arguing that defendants
owed Davis a duty of care based on their administration of


                                - 3 -
                               - 4 -                         No. 163

medication to Walsh and their allegedly negligent discharge of
her from the Hospital.
          Supreme Court, as relevant here, granted defendants'
motions to dismiss the complaint for failure to state a cause of
action, and denied that branch of plaintiffs' cross motion that
sought leave to amend the complaint to add a negligence claim
(2012 NY Slip Op 31969[U] [Sup Ct, Nassau County 2012]).   The
court concluded that there was no basis for the proposed
amendment because there was no duty running from defendants to
non-patient Davis.   The Appellate Division affirmed (119 AD3d
512, 513 [2d Dept 2014]), and we subsequently granted plaintiffs
leave to appeal (24 NY3d 905 [2014]).
                                II.
          As the majority recognizes, the threshold issue in any
negligence or malpractice action is whether the defendant owed
the plaintiff a legally recognized duty of care (see McNulty v
City of New York, 100 NY2d 227, 232 [2003]; Hamilton v Beretta
U.S.A. Corp., 96 NY2d 222, 232-233 [2001]).   The question of
whether and to whom a duty is owed "is a legal one for the courts
to resolve, taking into account 'common concepts of morality,
logic and consideration of the social consequences of imposing
the duty'" (McNulty, 100 NY2d at 232, quoting Tenuto v Lederle
Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 612 [1997]).     When
conducting this analysis, "[d]espite often sympathetic facts in a
particular case before them, courts must be mindful of the


                               - 4 -
                               - 5 -                         No. 163

precedential, and consequential, future effects of their rulings,
and 'limit the legal consequences of wrongs to a controllable
degree'" (Lauer v City of New York, 95 NY2d 95, 100 [2000],
quoting Tobin v Grossman, 24 NY2d 609, 619 [1969]).
          We have repeatedly emphasized that the "foreseeability
of harm does not define duty" (532 Madison Ave. Gourmet Foods v
Finlandia Ctr., 96 NY2d 280, 289 [2001]; see Eiseman v State of
New York, 70 NY2d 175, 187 [1987]; Pulka v Edelman, 40 NY2d 781,
785 [1976]); rather it "merely determines the scope of the duty
once it is determined to exist" (Hamilton, 96 NY2d at 232).
Consequently, "[a]bsent a duty running directly to the injured
person there can be no liability in damages, however careless the
conduct or foreseeable the harm" (532 Madison Ave. Gourmet Foods,
96 NY2d at 289).   "This restriction is necessary to avoid
exposing defendants to unlimited liability to an indeterminate
class of persons conceivably injured by any negligence in a
defendant's act" (id.; see Hamilton, 96 NY2d at 232; Eiseman, 70
NY2d at 187).   Thus, the foreseeability of Walsh experiencing
side-effects from the medications administered to her by
defendants and causing an accident with her motor vehicle does
not resolve the question of whether defendants may be held liable
to plaintiffs in this case.
                               III.
          Plaintiffs assert, and the majority concludes, that
recognition of a duty under the circumstances here is merely an


                               - 5 -
                                   - 6 -                         No. 163

extension of our existing precedent concerning the scope of a
physician's duty.    I disagree.    To the contrary, our case law
compels the conclusion that defendants owed Davis no duty of care
to warn or prevent Walsh from driving because Davis was an
unidentified and unknown stranger to defendants' physician-
patient relationship with Walsh.
          In Eiseman v State of New York, a prison physician
completed a health form required for an inmate to be admitted
into a college program upon his release from incarceration (70
NY2d at 187).   The physician failed to note that the inmate had a
history of addiction and mental illness and, after acceptance and
enrollment at the college, the inmate committed heinous crimes
against several of his peers (see id. at 180-183).      In the
subsequent negligence action, we acknowledged that, although the
relevant form did not require the physician to disclose the
inmate's history, in completing the form, the physician
nevertheless "owed a duty of care to his patient and to persons
he knew or reasonably should have known were relying on him for
this service to his patient" -- i.e., the college (id. at 188
[emphasis added]).    Yet, in recognizing the possibility that a
limited duty might be owed by a physician to a non-patient, we
held that the physician did not "undertake a duty to the
community at large," and we were careful to limit the object of
such a potential duty to a specific identified individual or
entity who the physician knew was relying on his or her services


                                   - 6 -
                               - 7 -                         No. 163

to the patient (id.).
          The following year, in Purdy v Public Adm'r of County
of Westchester, this Court was presented with the question of
whether defendants, a health-related living facility and its
admitting physician, owed a duty to a member of the public
requiring them to prevent or warn a resident -- 73-year-old Emily
Shaw, who had a medical condition that made her susceptible to
fainting and blackouts -- from driving (72 NY2d 1, 6 [1988]).     We
recognized in Purdy that "there exist special circumstances in
which there is sufficient authority and ability to control the
conduct of third persons that we have identified a duty to do
so," such as where there is a "relationship between [the]
defendant and a third person whose actions expose [the] plaintiff
to harm such as would require the defendant to attempt to control
the third person's conduct; or a relationship between the
defendant and plaintiff requiring [the] defendant to protect the
plaintiff from the conduct of others" (id. at 8).   However, we
held that the defendants in Purdy had no duty to the plaintiff
third party to prevent Shaw from driving because the facility
lacked "the necessary authority or ability to exercise
. . . control over Shaw's conduct so as to give rise to a duty on
their part to protect [the] plaintiff -- a member of the general
public" (id. at 8-9).   With respect to the plaintiff's duty to
warn theory, we acknowledged that other jurisdictions have held
that a treating physician's relationship to a patient could be


                               - 7 -
                                 - 8 -                       No. 163

sufficient to impose a duty running to members of the public to
warn the patient of the adverse effects of medication on the
ability to drive.   However, we noted that, in New York, "[a]
physician's duty of care is ordinarily one owed to his or her
patient" and not to the community at large (id. at 9-10).     In any
event, because the defendant physician was not Shaw's treating
physician and there was no evidence that any medication
prescribed by the physician contributed to the accident, we held
that no duty was established.1
          By contrast, in Tenuto v Lederle Labs., Div. of Am.
Cyanamid Co., we concluded that a special relationship existed
between the non-patient parents of an infant and the infant's
physician such that a duty was owed by the physician to the
parents (90 NY2d at 611-612).    There, the plaintiff parents
presented their infant to her physician for the second dose of an
oral poliomyelitis vaccine and, although it was known to the
medical community that such vaccine presented a risk of
transmittal to the parents, the physician did not warn the



     1
        Although we noted the existence of pertinent out-of-state
case law cited by plaintiff in support of a duty in Purdy v
Public Adm'r of County of Westchester, we did not implicitly or
explicitly approve of it (72 NY2d 1, 9-10 [1988]). Indeed,
because we found that case law to be inapplicable to the facts as
presented there, we had no occasion to determine whether it was
consistent with governing principles of tort law in New York (see
id.). Furthermore, as the majority concedes, out-of-state
authority does not govern the disposition of this appeal or our
determination of whether a duty exists under these circumstances
(see maj. op. at 17 n 4).

                                 - 8 -
                               - 9 -                       No. 163

parents of that risk or explain how to avoid it (see id. at 610-
611).   The infant's father contracted the poliomyelitis virus and
commenced an action against the physician.   We held that the
parents' complaint sufficiently alleged that the physician owed
them a duty of care to warn of the risk, noting that
           "[t]he relation of a physician to his patient
           and the immediate family is one of the
           highest trust. On account of his scientific
           knowledge and his peculiar relation, an
           attending physician is, in a certain sense,
           in custody of a patient afflicted with
           infectious or contagious disease. And he
           owes a duty to those who are ignorant of such
           disease, and who by reason of family ties, or
           otherwise, are liable to be brought in
           contact with the patient, to instruct and
           advise . . . them as to the character of the
           disease"
(id. at 613 [emphasis added] [internal quotation marks, emphasis,
and citations omitted]).   We also explained that a duty was
cognizable under those circumstances because the physician's
treatment "necessarily implicate[d] protection of household
members or other identified persons foreseeably at risk because
of a relationship with the patient, whom the doctor [knew] or
should [have] know[n] may [have] suffer[ed] harm by relying on
prudent performance of that medical service" (id. [emphasis
added]).   In other words, we recognized a duty in Tenuto only
because the plaintiffs there were "within a determinate and
identified class -- immediate family members -- whose
relationships to the person acted upon have traditionally been
recognized as a means of extending and yet limiting the scope of


                               - 9 -
                              - 10 -                         No. 163

liability for injuries caused by a party's negligent acts or
omissions" (id. at 614 [emphasis added]).   Because there was a
special relationship "triangulated" between the plaintiffs, the
physician, and the patient in light of the fact that "the
physician [was] a pediatrician engaged by the parents to provide
medical services to their infant, and whose services, by
necessity, require[d] advising the patient's parents," our
extension of a physician's duty to a non-patient was careful and
circumscribed (id. [emphasis added]).
          To the extent, if any, that our decision in Tenuto
could be read to permit the expansion of a physician's duty to a
member of the general public, we clarified the limits of our
holding a few years later, in McNulty v City of New York (100
NY2d at 227).   In McNulty, the Court refused to extend a
physician's duty to the friend of a patient being treated for
contagious meningitis, even though the friend accompanied the
patient to the hospital and directly inquired of two physicians
whether she was at risk and should be treated in light of her
close contact with the patient.   In so holding, we clarified --
again -- that our holding in Tenuto was a very narrow one that
relied on the special relationship between the parties and the
physician's awareness of the parents' reliance on his services to
the infant plaintiff, combined with the fact that the physician's
treatment created the risk of harm (see id. at 233).   We
cautioned that, in the absence of such a convergence of factors,


                              - 10 -
                               - 11 -                        No. 163

New York courts should be "reluctant to expand a doctor's duty of
care to a patient to encompass nonpatients," in part due to the
"critical concern . . . that a recognition of a duty would render
doctors liable to a prohibitive number of possible plaintiffs"
(id. at 232).
          The rule of law that emerges from this line of cases is
easily discerned.   In New York, a physician's duty to a patient,
and the corresponding liability, may be extended beyond the
patient only to someone who is both a readily identifiable third
party of a definable class, usually a family member, and who the
physician knew or should have known could be injured by the
physician's affirmative creation of a risk of harm through his or
her treatment of the patient (see McNulty, 100 NY2d at 233-234;
Cohen v Cabrini Med. Ctr., 94 NY2d 639, 642-644 [2000]; Eiseman,
70 NY2d at 188).    I am not aware of anything -- and the majority
makes no attempt to identify anything -- indicating that this
clear rule has become so unworkable that the significant
redefinition of the scope of a physician's duty adopted by the
majority is warranted.   Under a reasoned application of our
precedent to the facts of this case, it is evident that
defendants owed no legal duty to Davis -- or any other member of
the public who may have come into contact with, and been harmed
by, Walsh after her discharge -- to warn Walsh against, or
prevent her from, driving (see McNulty, 100 NY2d at 233-234;
Cohen, 94 NY2d at 642-644; Eiseman, 70 NY2d at 188; Rebollal v


                               - 11 -
                               - 12 -                        No. 163

Payne, 145 AD2d 617, 617-618 [2d Dept 1988]).
            The majority's contrary conclusion and imposition of a
duty to warn Walsh for the benefit of Davis and other motorists
is inimical to the principles enunciated in Purdy, Eiseman,
Tenuto, and McNulty because, while defendants arguably created a
risk of harm by affirmatively giving Walsh medications that
impaired her ability to drive, Davis is not a member of an
identifiable and readily limited class.2   Inexplicably, the
majority acknowledges that we have consistently "declined to
recognize a duty to an indeterminate, faceless, and ultimately
prohibitively large class of plaintiffs" (maj. op. at 8), but
then proceeds to recognize just such a duty in this case without
articulating any clearly defined class to which this new duty
runs.    Under the Court's decision in this case, the class of


     2
        To the extent plaintiffs claim that defendants had a duty
to actually prevent Walsh from leaving the hospital -- as opposed
to merely issuing a warning against driving -- defendants did not
have "sufficient authority and ability to control" Walsh's
conduct to give rise to such a duty (Purdy, 72 NY2d at 8-9; see
Kowalski v St. Francis Hosp. & Health Ctrs., 21 NY3d 480, 486
[2013]; D'Amico v Christie, 71 NY2d 76, 88 [1987]; Conboy v
Mogeloff, 172 AD2d 912, 913 [3d Dept 1991], lv denied 78 NY2d 862
[1991]; Wagshall v Wagshall, 148 AD2d 445, 447 [2d Dept 1989],
appeal dismissed and lv denied 74 NY2d 781 [1989]; Cartier v Long
Is. Coll. Hosp., 111 AD2d 894, 895 [2d Dept 1985]). Moreover,
there is clearly no relationship between defendants and Davis --
who were completely unknown to one another prior to the accident
-- that required defendants to protect Davis from Walsh's conduct
or to consider the effects of their treatment of Walsh on him
(compare Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90
NY2d 90 NY2d 606, 614 [1997]). The majority recognizes the
absence of sufficient control here by limiting their holding to a
duty to warn.

                               - 12 -
                             - 13 -                          No. 163

potential plaintiffs cannot be logically restricted or
identified.
          Ultimately, by imposing liability here, the majority
eviscerates the precept that a physician generally owes a duty of
care only to the patient, not to the community at large.   The
majority justifies its otherwise unsupportable position by
pointing out that the harm to Davis here was foreseeable (which,
as set forth above, is not dispositive) and by asserting that
"our calculus is such that we assign the responsibility of care
to the person or entity that can most effectively fulfill that
obligation at the lowest cost" (maj. op. at 7).   While it is true
that we have stated in other contexts that a "'key' consideration
critical to the existence of a duty . . . is 'that the
defendant's relationship with either the tortfeasor or the
plaintiff places the defendant in the best position to protect
against the risk of harm,'" we have also recognized in the next
breath that, even where the defendant is best positioned to
prevent harm, a duty should be imposed only where "the specter of
limitless liability is not present because the class of potential
plaintiffs to whom the duty is owed is circumscribed by the
relationship" (Matter of New York City Asbestos Litig., 5 NY3d
486, 494 [2005], quoting Hamilton, 96 NY2d at 233).   "The law
demands that the equation be balanced; that the damaged plaintiff
be able to point the finger of responsibility at a defendant
owing, not a general duty to society, but a specific duty to [the


                             - 13 -
                               - 14 -                        No. 163

plaintiff]" (Johnson v Jamaica Hosp., 62 NY2d 523, 527 [1984]).
The majority blatantly disregards this well-settled and crucial
limitation on the recognition of a duty.    Indeed, the duty it now
adopts is not specific to Davis or based on any relationship he
had with defendants or Walsh; rather, the duty imposed by the
majority upon defendants here extends to any motorist,
pedestrian, bicyclist, or other injured member of the public who
comes into contact with any of defendants' innumerable patients.
However, our jurisprudence, both in general and in the specific
context of physician-owed duties, has repeatedly rejected the
imposition of a duty that will have such far-reaching and
unmanageable consequences (see e.g. McNulty, 100 NY2d at 232;
Hamilton, 96 NY2d at 234; Strauss v Belle Realty Co., 65 NY2d
399, 402 [1985] [it is the responsibility of the courts when
fixing duty to "to protect against crushing exposure to
liability"]).    The majority's claim that it is not retreating
from our heretofore cautious approach to recognizing new scopes
of duties rings hollow in the face of its analysis and holding
demonstrating otherwise.
                                 IV.
          Even if I were able to accept the premise that a
logically defined duty could be extended to a non-patient third
party under our prior decisions, this Court is obligated to
balance certain relevant factors before making such a
determination.    These factors include "the reasonable


                               - 14 -
                              - 15 -                         No. 163

expectations of parties and society generally, the proliferation
of claims, the likelihood of unlimited or insurer-like liability,
disproportionate risk and reparation allocation, and public
policies affecting the expansion or limitation of new channels of
liability" (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579,
586 [1994]; see Hamilton, 96 NY2d at 232-233).     A thorough and
careful consideration of these factors -- an analysis that is
conspicuously absent from the majority's decision -- compels me
to conclude that the societal costs of imposing upon physicians a
duty to non-patient members of the general public greatly
outweigh the potential benefits of permitting such individuals to
recover against physicians for their injuries (see Matter of New
York City Asbestos Litig., 5 NY3d at 493 ["any extension of the
scope of duty must be tailored to reflect accurately the extent
that its social benefits outweigh its costs"]; Hamilton, 96 NY2d
at 232).
                                (A)
           First, the extension of a duty under the circumstances
presented here does not conform with the expectations of the
parties or of society in general.     Until now, it was unlikely
that physicians would have expected to be held accountable to
members of the community at large for decisions arising out of
their treatment of an individual patient.     This is because the
duty of care owed to a patient arises out of the personal,
private, and individualized relationship between the two parties.


                              - 15 -
                              - 16 -                          No. 163

By contrast, physicians have no relationship with unidentified
members of the public and cannot foresee or predict with whom
their patients will come into contact.   In addition, while
patients certainly expect their medical providers to properly
advise them of the risks and side-effects associated with
medications that are administered to them, patients have no
reason to expect that their doctor's advice to them could give
rise to a cause of action against the physician in favor of a
person with whom neither the physician nor the patient had prior
contact.   Thus, this factor of the duty analysis militates
against the finding of a duty.
                                 (B)
           Second, it is indisputable that a medical professional
who administers medication that is likely to impair a patient's
ability to drive owes a duty of care to the patient that may
require the medical professional to warn the patient of potential
risks and side-effects of the medication, including advice
regarding whether it is safe for the patient to operate a motor
vehicle (see generally Nestorowich v Ricotta, 97 NY2d 393, 398
[2002]; Wolfgruber v Upjohn Co., 72 AD2d 59, 61 [4th Dept 1979],
affd 52 NY2d 768 [1980]).   It is precisely because the physician
already has a duty to undertake the action that plaintiffs claim
will prevent future harm -- i.e., to warn the patient -- that the
majority's expansion of the scope of a physician's liability to
every member of the public will not create any additional social


                              - 16 -
                              - 17 -                         No. 163

benefit at all.   Nor will the imposition of a duty in favor of
third parties render it more or less likely that the patient --
with whom the ultimate decision to drive rests -- will heed a
medical provider's warning not to operate a motor vehicle.     That
is, the extension of a duty under these circumstances will have
little or no deterrent effect on the conduct which actually
results in the harm -- i.e., the operation of a motor vehicle by
a person under the influence of medication -- and there is little
preventative benefit to be gained by the majority's expansion of
liability (see Matter of New York City Asbestos Litig., 5 NY3d at
495).
                                (C)
          Third, while the majority's departure from our
precedent yields no appreciable benefit, the extension of a
physician's duty to warn a patient to a third party comes at a
heavy cost, both financially and socially.   As for the latter, in
my view, it is readily foreseeable that the imposition of a duty
and the corresponding expansion of liability to include non-
patients will adversely interfere with the physician-patient
relationship.   It can hardly be disputed that, as this Court has
previously stated, the relationship between a physician and
patient "operates and flourishes in an atmosphere of transcendent
trust and confidence and is infused with fiduciary obligations"
(Aufrichtig v Lowell, 85 NY2d 540, 546 [1995]).   As a fiduciary,
a physician generally owes a duty of undivided loyalty to the


                              - 17 -
                              - 18 -                         No. 163

patient, and the paramount consideration in a physician's course
of treatment must, therefore, be the patient's health and well-
being.   Although a physician has a duty, generally, to warn
patients of the potential for a medication to, among other
things, interfere with driving ability, the physician's decision
in specific situations regarding which side-effects to explain or
warnings to give with particular medications is, undoubtedly, one
that is made in the exercise of professional judgment, based on
the physician's weighing of the likelihood of danger or quantum
of risk and a determination of the individual patient's
interests.   Extending a physician's duty beyond the patient to a
boundless pool of potential plaintiffs, creates a very real risk
that a physician will be conflicted when deciding whether, and to
what extent, medication should be administered and under what
circumstances specific warnings should be issued.   In my view,
           "[t]he consequences of this conflict for
           decisions regarding patient care are not
           insignificant. A physician whose attention
           is diverted from the patient to the effects
           of his advice on unknown persons who could be
           harmed by the patient's future conduct 'may,
           understandably, become less concerned about
           the particular requirements of any given
           patient, and more concerned with protecting
           himself or herself from lawsuits by the
           potentially vast number of person[s] who will
           interact with and may fall victim to that
           patient's conduct outside of the treatment
           setting'"
(Jarmie v Troncale, 306 Conn 578, 611-612, 50 A3d 802, 821
[2012], quoting Coombes v Florio, 450 Mass 182, 211, 877 NE2d
567, 587 [2007] [Cordy, J., dissenting]).

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           For example, a physician may become overly cautious in
prescribing necessary medications so as to avoid potential
liability.   Similarly, instead of giving only those warnings a
physician truly believes to be warranted in a particular case,
the physician may inundate a patient with excessive detail about
potential, but unlikely, risks associated with a medication in
order to insulate him- or herself from liability, thus
distracting the patient from the most significant risks and side-
effects.   Worse yet, these warnings may devolve into a general
practice of physicians handing out pro-forma lists of potential
side-effects that patients will cursorily sign prior to the
administration of medications, ultimately resulting in fewer
educated patients and less informed consent.   While a physician
may be ethically bound to refrain from allowing considerations of
liability to influence his or her treatment decisions, it is
naive, at best, to assume that the immeasurable liability that
will result from the imposition of a duty owing to countless non-
patients will have no impact upon a physician's exercise of
professional judgment.
           The duty adopted by the majority also implicates
concerns regarding physician-patient confidentiality (see CPLR
4504; Education Law § 6530) and, in my view, is unworkable on a
practical level.   For instance, where a patient who was
administered medication without a warning against driving
defaults in a legal action brought by an injured third party, or


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decides not to shift blame to the physician, the physician-
patient privilege would bar disclosure to the injured party of
the patient's medical records and communications with the
physician (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007];
Dillenbeck v Hess, 73 NY2d 278, 287-88 [1989]).    An injured
third-party will, therefore, be unable to obtain the information
necessary to establish or obtain a remedy for a breach of the
physician's purported duty to that party.   Conversely, where an
injured third-party manages to state a claim despite a lack of
cooperation from the patient, a physician's inability to disclose
privileged information concerning the patient may hamstring the
physician's ability to defend against the claim.    Significantly,
the majority does not address the rationality of imposing a duty
upon a physician where a breach of that duty cannot be proven or
disproved -- absent a patient's cooperation -- without
encouraging violations of the physician-patient privilege or
requiring courts to delve into whether intrusion into the
privilege and a patient's privacy is warranted.    In that regard,
the likelihood of interference with the physician-patient
relationship weighs heavily against extending a physician's duty
to a non-patient in this context.
                               (D)
          Fourth, the expansion of a physician's liability to
include all members of the public injured by a patient's
operation of a motor vehicle while under the influence of


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                              - 21 -                         No. 163

medication will likely have a substantial financial impact on the
medical profession and the availability of competent medical care
throughout the state.   Where, as here, "recognition of a duty
would render doctors liable to a prohibitive number of possible
plaintiffs" (McNulty, 100 NY2d at 232), such a duty will
assuredly affect the cost and availability of medical care, as
physicians will face an influx of litigation and rising
malpractice insurance premiums.   Injured non-patients will have
every incentive to pursue litigation against physicians due to
the availability of insurance coverage and, even if the majority
of physicians successfully defeat such claims by demonstrating
compliance with their already-existing duty to warn a patient
where such a warning is warranted, the added cost of entering
into litigation of these claims, either through summary judgment
motions or trial, will take its toll.
          Moreover, scenarios implicating a physician's duty of
care owed to members of the general public regarding their
treatment of patients are endless, and the majority's finding of
a duty here presents a slippery slope at the bottom of which a
physician's ultimate liability could be staggering due to both
the countless number of potential plaintiffs, as well as the
myriad of ways in which liability may arise.   Following the
majority's holding to its logical conclusion, a physician can
arguably now be held liable, not just where a medication impairs
driving ability due to its impact on a patient's state of


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                              - 22 -                         No. 163

wakefulness, but also where a medication causes any other
physical malady, for example, a severe stomach ache that
distracts a driver or a rash of itchiness that causes a driver to
release the steering wheel and lose control.   The public as a
whole gains little benefit from imposing upon physicians a scope
of liability as vast as the one the majority now endorses.     The
societal cost, on the other hand, is significant.
                                (E)
           Finally, plaintiffs lament that it is unfair to allow
Walsh to recover against defendants for her own injuries if they
failed to warn her not to drive, while concomitantly precluding
Davis from obtaining the same recovery for his injuries.
However, there is nothing inconsistent about allowing a patient,
but not a stranger, to recover against a medical professional for
a negligent failure to warn the patient.   "Any conclusion
regarding inconsistent outcomes must involve a comparison between
two parties that stand in the same relationship to another party,
and patients and injured third persons do not stand in the same
relationship to health care providers" (Jarmie, 306 Conn. at 600-
601).   Moreover, in almost all instances in which courts are
asked to establish a duty, the courts must draw the line
somewhere.   As former Chief Judge Kaye eloquently stated,
           "[t]his sort of line-drawing -- a
           policy-laden determination reflecting a
           balance of competing concerns -- is
           invariably difficult not only because it
           looks in part to an unknowable future but
           also because it is in a sense arbitrary, hard

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                                - 23 -                      No. 163

          to explain to the person just on the other
          side of the line, especially when grievous
          injury is alleged. Human compassion and
          rigorous logic resist the exercise. If this
          person can recover, why not the next? Yet
          line-drawing is necessary because, in
          determining responsibility for negligent
          acts, common-law courts also must look beyond
          the immediate facts and take into account the
          larger principles at stake"
(McNulty, 100 NY2d at 234-235 [Ch. J. Kaye, concurring]).
          Although I am sympathetic to plaintiffs and "it may
seem that there should be a remedy for every wrong, this is an
ideal limited perforce by the realities of this world" (Tobin v
Grossman, 24 NY2d at 619; see Albala v City of New York, 54 NY2d
269, 274 [1981]).   For, "[a] line must be drawn between the
competing policy considerations of providing a remedy to everyone
who is injured and of extending exposure to tort liability almost
without limit" (De Angelis v Lutheran Med. Ctr., 58 NY2d 1053,
1055 [1983]).   To extend the duty here is to subject physicians
to potentially crushing liability attenuated from the common
expectations of all involved.
          In addition, in many cases, motorists who are injured
as a result of a physician's negligent failure to warn a patient
of the possible side-effects from the administration of
medication are not entirely without recompense because they may
be covered by their own motor vehicle or health insurance, or can
pursue recovery against the patient/driver who directly caused
the injury.   While an injured party may occasionally be deprived
of compensation by the absence of a duty in scenarios like the

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                             - 24 -                          No. 163

one here, I cannot agree with the majority that the possible
benefits to be gained by creating a liability owing from
physicians to every person who might potentially be injured by a
patient -- benefits which are not identified by the majority --
outweigh the costs.
                               V.
          For all these reasons, I would decline to extend a
physician's duty to warn a patient about the effects of
medication on his or her driving ability, beyond the duty already
owed to the patient, to the community at large.   My conclusion is
consistent with, and compelled by, our precedent cautioning
against the expansion of a physician's scope of liability, which
confines a physician's duty to patients and specifically-
identified persons who the doctor knows or has reason to know are
relying upon the patient's treatment and who are harmed by the
physician's affirmative creation of a risk.   Adherence to this
rule and our prior case law is necessary to avoid the imposition
of a duty in cases like this, where the absence of a definable
class of potential plaintiffs opens the door to limitless
liability that will unduly interfere with the physician-patient
relationship and increase the costs of medical care throughout
the state, all while producing minimal societal benefit.    It is,
therefore, my hope that the legislature -- which has long
expressed its concern regarding the impact of the costs of
medical malpractice insurance and litigation on the affordability


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                                - 25 -                           No. 163

and availability of medical care -- will carefully consider
whether the majority's holding is consistent with New York's
statutory medical malpractice schemes and the aims of tort
recovery in New York.
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order modified, without costs, by denying the motions of the
Island Medical Physicians, P.C. defendants and of defendant South
Nassau Communities Hospital to dismiss the complaint and, as so
modified, affirmed. Opinion by Judge Fahey. Chief Judge Lippman
and Judges Pigott and Rivera concur. Judge Stein dissents and
votes to affirm in an opinion in which Judge Abdus-Salaam
concurs.

Decided December 16, 2015




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