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By Lee Johnson, Esq.
Q: A patient fell asleep at the wheel of her car and struck a male pedestrian. He sued me, claiming that the medication I'd prescribed had caused the driver to nod off. Knowing that it could cause drowsiness, he contends, I should have tried to stop her from operating a motor vehicle. I can't control what a patient does. Am I liable?
A: Depending on where you practice, you may be. A physician's duty to protect third parties, such as the pedestrian, is an evolving area of the law. Courts have come down on both sides of the issue.
In general, you owe a duty to someone only if a physician-patient relationship has been established. You'd be liable for malpractice if it's proved that you breached that duty.
However, many courts have made exceptions and allowed lawsuits by third parties, especially when the doctor knew or should have known that there was a foreseeable risk to an identifiable person.
For example, a child contracted tuberculosis from his father. A Florida appellate court held that the minor child could sue his father's physician for malpractice. The doctor had a duty to warn the child's guardians that the disease was contagious and to tell them the steps they should take to avoid transmission. Likewise, some courts have held that physicians can be held liable if they don't warn family members of a patient's hereditary disease.
What if the physician can't know the identity of a potential third party? Again, rulings vary. In a case similar to the one you've described, a Kansas appellate court ruled that a doctor may be liable for failing to warn a patient not to drive.
A neurologist was treating a woman for a sleep disorder. While driving to work, she fell asleep and struck two bicyclists. The injured cyclists alleged that the doctor had negligently failed to warn the patient not to drive because of her condition and the medications he was using to treat it. A trial court dismissed the case. Since the patient had no history of falling asleep at the wheel, the doctor had no duty to advise her not to drive, the judge said.
The appellate court reversed that decision and said a jury should determine whether the physician had a duty to warn the patient, since failure to do so could increase the risk of harm to the general public. The jury could absolve the neurologist of liability if it found that he had warned the patient.
Similarly, a Texas appeals court ruled that an epileptic's physician can be sued for failing to warn the patient not to drive. Despite medication to control his condition, the patient had a seizure while driving and killed the driver of another car. Other courts have allowed lawsuits against physicians for failing to warn patients that cessation of a medication could impair the ability to drive.
In some states, however, the opposite is true. A Florida appeals court held that a physician wasn't liable for an accident that occurred when a patient lost control of his vehicle during a seizure and struck another car, injuring the driver. The court ruled that the physician owed no duty to the injured driver because he wasn't an identifiable third party, but rather an anonymous member of the driving public. The case was dismissed.
A New York court held that a doctor who told a patient that she could drive after taking a medication with a sedative effect couldn't be held liable for injuries to third parties when the patient lost consciousness while driving. The court reasoned that the physician didn't have the ability to control the patient's conduct. Similarly, a Texas court said a physician wasn't liable for failing to warn a diabetic patient not to drive. The patient hadn't experienced any previous lapses in consciousness and was being monitored regularly.
The best way to protect yourself from a lawsuit is to warn patients about driving or other activities if you think that there's a foreseeable risk of harm to third parties. Put your warning in writing. There's no guarantee that you won't be sued, but you'll have a stronger defense if you are.
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Lee Johnson has twenty-five years of experience in healthcare law, risk management, claims management, risk malpractice defense litigation and general counsel advice to hospitals and other health care providers. She lectures to physicians, hospitals, bar associations and medical societies; produces internet programs, self-study programs, videos and audiotapes on risk management and the defense of medical malpractice litigation; and writes numerous articles, pamphlets and books on risk management topics. She is a contributor on risk management for Medical Economics magazine. You can learn about her at website.
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