Failure to warn or report

Question: A patient who is a school bus driver is also an alcoholic, but he continues to drive despite his physician’s warning against drinking and driving. He already has had one prior driving under the influence (DUI) conviction. Fearing a potential vehicular accident with injuries to the schoolchildren, the physician, with permission, informed the patient’s wife of the situation; but that did not make a difference.

Under the circumstances, which of the following is best?

A. The physician has discharged his professional duty by warning the patient and informing his wife.

B. It is unethical for the physician to report this to the employer, because it violates the principle of confidentiality.

C. The physician may have an ethical and legal duty to report, because the risk of harm to the school children is foreseeable and outweighs other considerations.

D. A and B.

E. A and C.

Answer: C. The issue in this hypothetical revolves around the failure to warn and report when a doctor has determined that his or her patient poses a significant societal risk. It places the health care provider in a dilemma, because it pits patient confidentiality against the public interest in safety.

There does not appear to be an appellate case precisely on point, but the well known case of Tarasoff¹ offers useful insight.

In Tarasoff, a California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, the girlfriend, whom the patient stabbed to death 2 months later.

The California court found the psychologist and the University of California (as the psychologist’s employer) liable, reasoning that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship.

The court wrote: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”

However, the duty to warn a third party may not be as clear cut where there is no readily identifiable victim.²

Further, the law is unsettled regarding a physician’s duty to report negligent conduct that poses a significant risk to public safety, e.g., where a patient insists on operating a vehicle against medical advice. Obviously, the doctor should spare no effort in trying to persuade such a patient to discontinue driving. When this fails, however, and depending on the circumstances, the physician should seriously consider breaching patent confidentiality by notifying the driving licensing bureau.

This opinion is in accord with the AMA Code of Medical Ethics: “Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles.”³

What about informing the patient’s employer if the risk of harm arises in the work setting?

The duty to report is clearer if the physician is a company doctor specifically charged with the task of determining whether an employee is fit for work. However, a patient’s personal physician may be a different matter, because he or she does not share the same contractual obligation as a company employed doctor.

Still, the circumstances may well dictate the need to report. In the hypothetical scenario posed above, the patient is refusing to heed the advice of physician and spouse, and given the history of a DUI, can be said to be placing innocent children and others at risk. The physician may need to go beyond warning the patient and wife, even though revealing a patient’s diagnosis violates the principle of confidentiality.

Arguably controversial, the physician’s justification is that there is a higher ethical and legal duty to report, as the risk of harm to the school children is both unreasonable and foreseeable, outweighing other considerations.

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”⁴ There is, however, no legal requirement to deliver a “mini-course in medical science.”⁵

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.⁶ The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].

Question: A patient who is a school bus driver is also an alcoholic, but he continues to drive despite his physician’s warning against drinking and driving. He already has had one prior driving under the influence (DUI) conviction. Fearing a potential vehicular accident with injuries to the schoolchildren, the physician, with permission, informed the patient’s wife of the situation; but that did not make a difference.

Under the circumstances, which of the following is best?

A. The physician has discharged his professional duty by warning the patient and informing his wife.

B. It is unethical for the physician to report this to the employer, because it violates the principle of confidentiality.

C. The physician may have an ethical and legal duty to report, because the risk of harm to the school children is foreseeable and outweighs other considerations.

D. A and B.

E. A and C.

Answer: C. The issue in this hypothetical revolves around the failure to warn and report when a doctor has determined that his or her patient poses a significant societal risk. It places the health care provider in a dilemma, because it pits patient confidentiality against the public interest in safety.

There does not appear to be an appellate case precisely on point, but the well known case of Tarasoff¹ offers useful insight.

In Tarasoff, a California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, the girlfriend, whom the patient stabbed to death 2 months later.

The California court found the psychologist and the University of California (as the psychologist’s employer) liable, reasoning that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship.

The court wrote: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”

However, the duty to warn a third party may not be as clear cut where there is no readily identifiable victim.²

Further, the law is unsettled regarding a physician’s duty to report negligent conduct that poses a significant risk to public safety, e.g., where a patient insists on operating a vehicle against medical advice. Obviously, the doctor should spare no effort in trying to persuade such a patient to discontinue driving. When this fails, however, and depending on the circumstances, the physician should seriously consider breaching patent confidentiality by notifying the driving licensing bureau.

This opinion is in accord with the AMA Code of Medical Ethics: “Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles.”³

What about informing the patient’s employer if the risk of harm arises in the work setting?

The duty to report is clearer if the physician is a company doctor specifically charged with the task of determining whether an employee is fit for work. However, a patient’s personal physician may be a different matter, because he or she does not share the same contractual obligation as a company employed doctor.

Still, the circumstances may well dictate the need to report. In the hypothetical scenario posed above, the patient is refusing to heed the advice of physician and spouse, and given the history of a DUI, can be said to be placing innocent children and others at risk. The physician may need to go beyond warning the patient and wife, even though revealing a patient’s diagnosis violates the principle of confidentiality.

Arguably controversial, the physician’s justification is that there is a higher ethical and legal duty to report, as the risk of harm to the school children is both unreasonable and foreseeable, outweighing other considerations.

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”⁴ There is, however, no legal requirement to deliver a “mini-course in medical science.”⁵

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.⁶ The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].

Question: A patient who is a school bus driver is also an alcoholic, but he continues to drive despite his physician’s warning against drinking and driving. He already has had one prior driving under the influence (DUI) conviction. Fearing a potential vehicular accident with injuries to the schoolchildren, the physician, with permission, informed the patient’s wife of the situation; but that did not make a difference.

Under the circumstances, which of the following is best?

A. The physician has discharged his professional duty by warning the patient and informing his wife.

B. It is unethical for the physician to report this to the employer, because it violates the principle of confidentiality.

C. The physician may have an ethical and legal duty to report, because the risk of harm to the school children is foreseeable and outweighs other considerations.

D. A and B.

E. A and C.

Answer: C. The issue in this hypothetical revolves around the failure to warn and report when a doctor has determined that his or her patient poses a significant societal risk. It places the health care provider in a dilemma, because it pits patient confidentiality against the public interest in safety.

There does not appear to be an appellate case precisely on point, but the well known case of Tarasoff¹ offers useful insight.

In Tarasoff, a California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, the girlfriend, whom the patient stabbed to death 2 months later.

The California court found the psychologist and the University of California (as the psychologist’s employer) liable, reasoning that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship.

The court wrote: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”

However, the duty to warn a third party may not be as clear cut where there is no readily identifiable victim.²

Further, the law is unsettled regarding a physician’s duty to report negligent conduct that poses a significant risk to public safety, e.g., where a patient insists on operating a vehicle against medical advice. Obviously, the doctor should spare no effort in trying to persuade such a patient to discontinue driving. When this fails, however, and depending on the circumstances, the physician should seriously consider breaching patent confidentiality by notifying the driving licensing bureau.

This opinion is in accord with the AMA Code of Medical Ethics: “Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles.”³

What about informing the patient’s employer if the risk of harm arises in the work setting?

The duty to report is clearer if the physician is a company doctor specifically charged with the task of determining whether an employee is fit for work. However, a patient’s personal physician may be a different matter, because he or she does not share the same contractual obligation as a company employed doctor.

Still, the circumstances may well dictate the need to report. In the hypothetical scenario posed above, the patient is refusing to heed the advice of physician and spouse, and given the history of a DUI, can be said to be placing innocent children and others at risk. The physician may need to go beyond warning the patient and wife, even though revealing a patient’s diagnosis violates the principle of confidentiality.

Arguably controversial, the physician’s justification is that there is a higher ethical and legal duty to report, as the risk of harm to the school children is both unreasonable and foreseeable, outweighing other considerations.

The same analysis concerning reporting may be applied in uncooperative patients with certain medical diagnoses (e.g., uncontrolled epilepsy, serious mental illness, or disabling cardiac or cerebrovascular disease, to name a few) and in those taking mind-altering prescription medications or illicit drugs.

A key inquiry is whether the patient’s work activity is potentially hazardous, as in those who are entrusted with public transportation, e.g., bus drivers, pilots and train/ship engineers, or those who operate heavy machinery.

The most familiar example of the failure to warn (as opposed to report) is of course in informed consent litigation, where the physician is faulted for not warning the patient of the risk of harm and the patient in fact suffers that harm. It is framed as the failure to disclose material risks. The California Supreme Court has stated that “material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure”; that “a (material) fact must also be one which is not commonly appreciated”; and the scope of disclosure may be expanded in patients with “unique concerns or lack of familiarity with medical procedures.”⁴ There is, however, no legal requirement to deliver a “mini-course in medical science.”⁵

Another situation where there may have been a failure to warn is in medical products liability. Here, the plaintiff alleges that the defective product has caused injuries because the manufacturer has issued no prior warning to the health care provider or end user. A prime example is the current Lipitor and diabetes class action lawsuit against Pfizer.

In failing to warn a patient, a doctor may incur liability not only for injuries to the patient but also to nonpatient third parties.

In a 2002 Hawaii case, a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter.⁶ The driver alleged that the prescription medication prazosin caused him to develop hypotension and lose control of the car, and that the treating physician was negligent in failing to warn of this potential side effect.

The Hawaii Supreme Court held that physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties.

Court decisions elsewhere have also found liability where, for public policy reasons, a “special relationship” is deemed to exist between the doctor and the injured third party. Foreseeability is one important factor in construing its existence, notwithstanding the absence of the traditional doctor-patient relationship.

References

1. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).

2. Furr v. Spring Grove State Hospital, 454 A.2d 414 (Md. 1983).

3. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed.].

4. Truman v. Thomas, 27 Cal.3d 285 (1980).

5. Cobbs v. Grant, 8 Cal.3d 229 (1972).

6. McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (Haw. 2002).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii. He currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. For additional information, readers may contact the author at [email protected].