Palsgraf Meets Medicine: Physician Beware! The Unidentified Nonpatient and the Duty of Care.

AuthorGinsberg, Marc D.

Table of Contents I. Introduction II. Background A. Motor Vehicle Accidents B. Medical Conditions that Impair Driving Ability C. Medications that Impair Driving Ability III. Establishing a Physician's Duty to an Unidentifiable Nonpatient Victim A. Foreseeability B. Medical Ethics IV. A Survey of Jurisprudence of the States A. No Duty Owed to Unidentifiable Nonpatient Victims 1. Connecticut 2. Illinois 3. North Dakota 4. Pennsylvania 5. Iowa 6. Massachusetts 7. New Jersey B. Duty Owed to Unidentifiable Nonpatient Victims 1. New York 2. South Carolina 3. West Virginia 4. Indiana 5. Maine 6. Alabama 7. Tennessee 8. Hawaii 9. Washington 10. Wisconsin 11. New Mexico V. Commentary VI. Conclusion "Lurking deep inside the law of tort, permeating and connecting its various components, a vital ingredient defines and gives moral content to the law of negligence, controlling how each element fits together and, ultimately, whether one person is bound to pay another for harm. Foreseeability is the dark matter of tort." (1)


    Physicians commonly attend to and treat patients whose medical conditions and medications impair the ability to safely operate a motor vehicle. The circumstances of medical attention and treatment are varied: patients have medical conditions that impair the ability to drive; (2) physicians "inherit" patients taking medications prescribed by others and the medications impair the ability to drive; (3) physicians prescribe or administer medications that impair the ability to drive; (4) and physicians perform procedures requiring the use of sedation, a side effect of which may impair the ability to drive. (5)

    In any of these circumstances, an unfortunate event may occur--the patient operates a motor vehicle despite the impairment (or potential impairment) and causes an accident with another vehicle or pedestrian, resulting in serious injury. The following question arises: Is the physician potentially liable in tort to the accident victim, the unidentified or unidentifiable nonpatient?

    This is a complicated problem in many respects. Should a physician, in a non-Tarasoff (6) scenario, suffer liability to a nonpatient, a person unknown to and unidentifiable by the physician? (7) If so, is it fair to suggest that a physician could owe a tort duty to the nonpatient accident victim when, typically, the physician's duty--to act as a reasonably well-qualified physician would act under the same or similar circumstances (complying with the standard of care)--is owed to a patient? (8) Extending a physician's duty to an unidentified nonpatient complicates foreseeability, a concept debated in and since Palsgraf v. Long Island Railroad Co. (9) If the physician owes a duty to an unidentified nonpatient, how is the duty discharged by the physician? Unlike a Tarasoff scenario, the physician cannot warn the public that a patient has a medical condition or has received medication that impairs the patient's driving ability. (10) If the physician warns the patient about the potential driving impairment and/or actually advises the patient of driving restrictions and enters a corresponding note in the patient's medical chart, the physician has discharged the duty to warn the patient. (11) Has the physician similarly discharged a duty to the unidentifiable nonpatient accident victim by doing so? (12) Could the existence of a physician's duty to the unidentifiable nonpatient accident victim result purely from public policy considerations, or are those considerations a component part of the foreseeability analysis? (13)

    Is there a medical-ethical foundation for a physician's duty to a nonpatient? Otherwise stated, does a physician's loyalty run solely to the patient, or is the loyalty split between the patient and the general public? (14)

    Another issue in assessing physician liability to unidentified nonpatient victims of vehicular accidents is that of general versus specific causation in fact. (15) Specifically, despite the fact that certain medical conditions and medications may impair driving ability, vehicular accidents may be caused by factors unrelated to a medical condition or medication. (16) Certainly, this is a problem of proof, not duty, but it does complicate the discussion of physician liability.

    Additionally, it may be helpful to look to the third-party beneficiary rule of contract law to base physician liability to unidentified nonpatient victims of vehicular accidents caused by patients. (17) This may be a reasonable consideration because tort law principles may not provide a viable explanation for imposing tort liability upon physicians in these circumstances; unless of course, it is preferable to rely on the foreseeability analysis to address the inquiry.

    Physician liability to unidentifiable nonpatient victims of vehicular accidents caused by patients is a controversial topic. Legal and medical issues abound, with perhaps, not unexpectedly, varied approaches by courts. This Article seeks to address these issues and survey the jurisprudence of the states, focusing primarily on courts of last resort.


    1. Motor Vehicle Accidents

      Motor vehicle accidents and collisions are ubiquitous worldwide (18) and in the United States. (19) The U.S. Government reported that "37,461 people [were] killed in crashes on U.S. roadways during 2016." (20) The causes of these unfortunate events have been studied in both younger and older drivers. (21) It has been determined that "collisions of older drivers more often involve driver error" resulting from "age-related decline in visual, cognitive, and mobility functioning in older age" as well as from "[m]edical conditions, such as heart disease and stroke," and "psychoactive medications." (22) These psychoactive medications "induce[] a distinctive altered mental and physical state" which may include sedation. (23) The National Highway Traffic Safety Administration (NHTSA) has reported "that both the kinds and number of medication exposures, and the characteristics of diseases/disorder present ... may predict an increase in risk for [motor vehicle collisions] among older adults." (24)

      Motor vehicle accidents, not surprisingly, have been associated with "sleepiness at the wheel." (25) A recent study concluded that "[t]he positive association between sleepiness at the wheel and motor vehicle accidents ... strongly suggests that sleepiness at the wheel should appear in the future version of medical fitness to drive guidelines." (26)

      The pervasiveness of motor vehicle accidents is undeniable. This Article next focuses on various medical conditions and medications (including sedation) that may impair driving ability.

    2. Medical Conditions that Impair Driving Ability

      Not unexpectedly, many medical conditions known to and treated by physicians may impair driving ability. This is well appreciated, particularly when considering the skill set required to drive, explained as follows:

      Driving is a complex task that requires possessing sufficient cognitive, visual and motor skills. The driver must have adequate motor strength, speed and coordination. Perhaps more importantly, higher cognitive skills including concentration, attention, adequate visual perceptual skills, insight and memory need to be present. Higher cortical functions required for driving include strategic and risk taking behavioral skills, including the ability to process multiple simultaneous environmental cues in order to make rapid, accurate and safe decisions. The task of driving requires the ability to receive sensory information, process the information, and to make proper, timely judgements and responses. (27) In 2005, the NHTSA published a review of forty years of literature "on the effects of medical conditions on driving performance." (28) Here, the NHTSA identified nine categories of medical conditions which could adversely affect driving: visual conditions/diseases, cardiovascular disease, cerebrovascular disease, diseases of the nervous system, respiratory diseases, metabolic diseases, renal disease, dementia, and psychiatric diseases. (29) The NHTSA and American Association of Motor Vehicle Administrators have also produced Driver Fitness Medical Guidelines relating to these and other conditions. (30)

      Medical literature is replete with reports on various medical conditions which cause impaired driving, including vision impairment, (31) psychiatric conditions, (32) substance abuse, (33) epilepsy, (34) diabetes mellitus, (35) and dementia, (36) as well as other neurologic conditions. (37) When one considers the various medical conditions that may impair driving ability, as well as the likely prevalence of these conditions in motor vehicle drivers, the potential liability of physicians to unidentified nonpatient victims should not be underestimated if a legal duty to the victims is recognized. Of course, this will be explored later in this Article.

    3. Medications that Impair Driving Ability

      An impressive array of medications may impair driving ability. "[M]any medications used to treat disorders and diseases can adversely interfere with physiological functioning, particularly [central nervous system] functioning, or exacerbate the effects of medical conditions on driving in indeterminable ways." (38) Perhaps the more obvious culprits are psychiatric medications. "Drugs prescribed to treat psychiatric disorders, including ... antidepressants, antipsychotics, anxiolytics, stimulants, and drugs ... used to treat bipolar disorder, also modify normal mental processes and behavior...." (39) Other medications may affect driving ability, such as antihistamines, "commonly prescribed to alleviate allergy symptoms," (40) anticonvulsants, (41) anti-Parkinsonians, (42) narcotic analgesics, (43) cardiovascular medications, (44) and intravenous sedating agents used in ambulatory surgery and procedures. (45)

      This wide array of medications suggests that virtually any physician may prescribe or administer...

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