The defendant medical center filed a motion to dismiss the case on the ground that it had no duty to warn of such an obvious and apparent danger as driving with while wearing an eye patch. The trial court dismissed the case and held that any duty to warn did not extend to the third party motorcycle rider. The Court felt that the physician had a duty to warn the patient for his own safety, but such a duty does not extend to a 'third party' who may be injured by the patient.

The appeals court disagreed, and adopted the rationale of the growing body of third party cases extending a physician's duty outside the physician-patient relationship. Thus, the court held that dismissal of the case was inappropriate, and although it was clear that an eye patch eliminates the use of one eye, "we cannot assume that the patient must have known that his driving would be materially affected. It is possible that the accident resulted from some effect of the eye patch known to the physician, but unknown to the patient." Having decided that as a matter of law the physician had a duty to the third party motorcycle rider, the case was referred back to the trial court for a jury to determine if the defendant exercised reasonable care in connection with the alleged "duty to warn".

Case Commentary

This single case of 'failure to warn' a patient with an eye patch should not be assumed to create a national duty of care for emergency physicians. Over the years, millions of eye patches have been placed, perhaps there have been related motor vehicle accidents, but there is only one case from one of 50 states available for review in the entire legal literature database. However, the case merits consideration. Perhaps the emergency department discharge sheet for eye injuries should contain a warning regarding driving and operation of machinery. Also, the court correctly points out that the potential for harm must be viewed form the patient's perspective, not that of the emergency physician or staff.

Case #2

In determining whether Dr. Straight had a duty to Mr. Wilschinsky, the 'third party' injured in the accident, the court noted that: (1) Dr. Straight administered drugs which could cloud a person's judgment and physical abilities, and could create a risk to that person in driving a car; (2) Medina was involved in a serious car accident within a short time of receiving medication; and (3) Mr. Wilschinsky suffered injuries from that accident.

The court held that Dr. Straight owed a duty to the driving public when he administered these drugs to Helen Medina under these particular circumstances. Once the Court determined, as a matter of law, that Dr. Straight had a duty to Mr. Wilschinsky and the driving public, the case was referred back to the lower court to determine if the other elements of the negligence action were present. The important issue is that the New Mexico Supreme Court opened the door between outpatient management with parenteral pain or sedative medication and the 'third party' driving public.

Case Commentary

The impact on the practice of emergency medicine is obvious. During a busy shift in the department, a dozen or more patients may receive pain meds, sedation, or hypnotics. Great care must be taken to make sure that patients are monitored post injection, and that warnings regarding driving and other potentially dangerous activity are given to the patient and documented in the record.

Case # 3

The Texas Court of Appeals reached the opposite conclusion in the case of Flynn v Houston Emergicare, Inc. On January 6, 1988 at approximately 7:30 a.m., Dr. Ron Kremer examined William Broadus in the Emergency Department of Houston Northwest Medical Center. Mr. Broadus complained of chest pain. Broadus testified that the night before, he had snorted cocaine. When he awoke at 5:30 a.m. he felt a "heavy pressure in his chest" as if he were having a heart attack. He drove himself to the emergency department.

The doctor took an EKG and a chest x-ray and placed Mr. Broadus on a cardiac monitor. Dr. Kremer concluded that Broadus was experiencing a "hyperadrenergic excess sympathetic state of stimulation secondary to cocaine use." Dr. Kremer prescribed Inderal and discharged the patient. Mr. Broadus then caused a rear-end collision with the plaintiff, Diane Flynn. Flynn alleged that Dr. Kremer was negligent in failing to admit Broadus to the hospital for observation and in failing to warn Broadus not to drive for a specified period of time.

The Texas Court reviewed several recent 'duty to third party' cases from other jurisdictions. The Court found that in other jurisdictions a duty to the driving public arose because the physician had created the impairment that resulted in injury to the plaintiff, as in the migraine headache and eye patch cases above. The Court held that there was no affirmative act by Dr. Kremer that caused Broadus' impairment. Broadus' ingestion of cocaine caused the impairment that led to his automobile accident, and Dr. Kremer's care and treatment bears no relationship to that incapacity. Therefore, the defendants owed no duty to the public to warn Broadus not to drive following his ingestion of cocaine.

The reasoning of the three court decisions is interesting. The physician who placed an eye patch created the visual impairment and thus had a duty to the driving public. The physician who gave the drug created the impairment in level of consciousness, judgment, or reaction time and thus had a duty to the driving public. But if the patient creates the impairment, as in the cocaine case, the physician has no such duty. From the medical viewpoint, there probably is no difference how the individual became impaired. If the patient is impaired and needs a warning, why does it make a difference if it's an eye patch, or a drug or alcohol ingestion? But from the legal standpoint, extending the common law into new realms is a big issue, and it is typically a slow and sometimes not a completely logical evolution.

There are several cases discussed above wherein the courts discuss a "duty to warn". There may be a duty to warn a patient not to drive with an eye patch, after receiving certain medications, after having a seizure or hypoglycemic episode, etc. What happens if the patient ignores the warning and a third party is injured anyway?

The courts are quite clear on this issue. All courts that have discussed the issue have reached the same conclusion. The consensus is that the duty is to warn the patient; thereafter the physician is not liable if the patient does not heed the warnings. The physician incurs no duty to prevent his patient from driving. The patient is presumable sane, and, once presented with the risks, is responsible for his or her own choices. If the patient has an abnormal mental status, (e.g. alcohol intoxication) the physician may have a duty to restrain or use some alternate means to keep the patient from harming himself or others.