Duty to Warn and Report Impaired Driving

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Because hypersomnolence generally follows untreated OSA, a physician may have additional legal and ethical duties to the public to inform the patient of the risks of fatigued driving caused by the failure or refusal to treat the disease. In appropriate cases, the physician may be required by law to report the patient's condition to applicable state motor vehicle agencies.

Although no case found expressly discusses a physician's duty to third parties in the context of an OSA patient, under the proper facts, a physician owes a duty to use reasonable care to protect the driving public if the physician's negligence in diagnosis or treatment of his patient contributes to Plaintiff's injuries (55).

One principal case holds that a physician who "takes charge" of a patient whom the physician knew or should have known was likely to cause bodily harm to others adopts the duty of reasonable care to prevent the patient from causing harm to others (56). However, courts readily distinguish a physician's prescribing narcotic drugs or similar treatment plans from situations in which the physician "takes charge" of the patient. The courts reason "that whether the patient takes the medication and then drives is beyond the doctor's control. In fact, whether the patient consumes the medication at all is beyond the doctor's control" (57). This same result would logically follow upon an injury caused by an OSA patient's failure to comply with his or her CPAP treatment.

However, the law requires a physician to warn the patient of the risks flowing from the use or misuse of the treatment (58). In Gooden v. Tips (59), a physician prescribed Quaalude tablets for his patient but failed to warn her not to drive under its influence. The patient's drug-induced driving injured third parties, who brought suit against the physician. The court ruled that the physician was liable to the injured third parties not because the physician had a duty to prevent his patient from driving, but because the physician had the duty to warn the patient not to drive, which he failed to do (30). A treating physician may have a similar duty to warn an OSA patient that the disease may cause a risk of drowsy driving if left untreated or treated improperly.

In addition to legal duties under common law negligence, physicians may have a statutory obligation to report impaired driving to the department of motor vehicles. For example, Vermont, Oregon, New Jersey, California, Delaware, Pennsylvania, and Nevada require physicians to report specific disorders of their patients to appropriate state agencies, typically the state department of motor vehicles (60). Other states permit physicians to report their patients' impaired driving conditions, but do not require reporting. Still other state laws permit the report to be made anonymously, while some laws offer physicians complete immunity from liability if they have reported the patient's condition to the applicable agency prior to a patient's injury (61).

According to the American Medical Association's "Physician's Guide to Assessing and Counseling Older Drivers," patients with a diagnosis of narcolepsy should cease driving altogether (62). The Guide suggests that patients with sleep apnea may drive if they do not suffer excessive daytime drowsiness as a consequence of therapy or otherwise (63). Physicians in reporting states should check with the department of motor vehicles in their states to determine if a sleep disorder is a specified condition for which reporting is required.

Even if reporting is not required, physicians face legal and ethical dilemmas if they judge the patient unfit to drive but the patient refuses to comply. In 2000, the American Medical Association adopted Ethical Opinion E-2.24 to address physicians' ethical obligations in this regard (63). According to the Opinion, if clear evidence of substantial driving impairment implies a "strong threat" to patient and public safety, and if the patient ignores the advice to discontinue driving, then the AMA believes it is desirable and ethical for the physician to notify the applicable department of motor vehicles. However, the Opinion clarifies that the physician must follow state law if reporting is required. The Opinion also advises that physicians should disclose and explain their responsibility to report to their patients.

Reporting a patient's impaired driving condition impacts an array of legal issues, including patient confidentiality. If a state law requires or permits disclosure, patient authorization may be required prior to the disclosure. The Privacy Standards applicable to protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) will not stand in the way if state law requires or permits disclosure without authorization. HIPAA permits healthcare providers to disclose protected health information without individual authorization as "required by law" (64) or to avert a serious threat to health or safety (65). However, HIPAAs provisions yield to more stringent state laws. Accordingly, prior patient authorization may still be required under state law even though HIPAA may permit an unauthorized disclosure.

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