Banner-Physician's Guide to Assessing and Counseling Older Drivers

Chapter 7
Legal and Ethical Responsibilities of
the Physician

Please note that this chapter is provided for informational purposes only. It is not intended to constitute legal advice. If legal advice is required, the services of a competent professional should be sought.

Upon further evaluation of Mrs. Allen, you diagnose her with Alzheimer’s disease. It is readily apparent that her condition has progressed to the extent that she is no longer safe to drive and that rehabilitation is not likely to improve her driving safety. You tell Mrs. Allen that she must retire from driving for her own safety and the safety of others on the road. You also explain that the state reporting law requires you to report her to the DMV. Initially, Mrs. Allen does not comprehend, but when you specifically tell her that she can no longer drive herself to the grocery store every day, she becomes agitated and screams, “I hate you!” and “I’m going to sue you!” The daughter understands your decision to report Mrs. Allen to the DMV, but is now concerned that she will encounter legal problems if her mother attempts to drive without a license. She asks if it is absolutely necessary for you to report her mother. What do you say?

Driving is a difficult topic to address, particularly when there is the risk of damaging the patient-physician relationship, violating patient confidentiality, and potentially losing patients. To complicate matters, many physicians are uncertain of their legal responsibility, if any, to report unsafe drives to their state Department of Motor Vehicles (DMV).1, 2 As a result, physicians are often faced with a dilemma: Should they report the unsafe driver to the state DMV at the expense of breaching confidentiality and potentially damaging the patient-physician relationship, or should they forego reporting and risk being liable for any future patient or third-party injuries?

This chapter will help clarify your legal and ethical responsibilities. In particular, we will discuss the duties of the physician, offer recommendations on how to balance these duties, and provide strategies for putting them into practice. To aid you in navigating legal terminology and concepts, we have assembled a table of definitions (see Figure 7.1). Because reporting laws vary by state, we have compiled a state-by-state reference list of reporting laws, licensing requirements, license renewal information, and DMV contact information. This list can be found in Chapter 8.

The Physician’s Legal and Ethical Duties

Current legal and ethical debates highlight duties of the physician that are relevant to the issue of driving. These include:

Protecting the patient

Protecting the patient’s physical and mental health is considered the physician’s primary responsibility. This includes not only treatment and prevention of illness, but also caring for the patient’s safety. With regards to driving, physicians should advise and counsel their patients about medical conditions and possible medication side effects that may impair their ability to drive safely. Case law illustrates that failure to advise the patient about such medical conditions and medication side effects is considered negligent behavior.3-5

‘Duty to Protect,’ or protecting public safety

In addition to caring for their patients’ health, physicians may, in certain circumstances and jurisdictions, have some responsibility for protecting the safety of the public.* 6, 7 With regards to driving, legal precedents demonstrate that in some cases, physicians can be held liable for their patient’s car crash and for third-party injuries caused by their patient. Several cases have found physicians liable for third-party injuries because they failed to advise their patients about medication side effects,3, 4, 8, 9 medical conditions,5, 10-12 and medical apparati13 that may impair driving performance.

Maintaining patient confidentiality

Confidentiality is defined as the physician’s ethical obligation to keep information about the patient and his/her care unavailable to those—including the patient’s family, the patient’s attorney, and the government—who do not have the authorization to receive this information.14, 15 Confidentiality is crucial within the physician-patient relationship because it encourages the free exchange of information, allowing the patient to describe symptoms for diagnosis and treatment.16 Without confidence in the confidentiality of their care, individuals may be less likely to seek treatment, disclose information for effective treatment, or trust the health care professional.

There are several exceptions to maintaining confidentiality. Information may be released if the patient gives his/her consent. Also, information may be released without patient authorization in order to comply with various reporting statutes (such as child abuse reporting statutes) and court orders.

Many physicians are reluctant to report impaired drivers to the DMV for fear of jeopardizing the patient-physician relationship,17 breaching patient confidentiality, and—more recently— violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA). However, while some courts have previously held the health care system liable for breaching confidentiality,17 physicians generally enjoy immunity for complying with mandatory reporting statutes in good faith.14 Some states specifically protect health care professionals from liability for reporting unsafe drivers in good faith. Furthermore, the HIPAA Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) permit health care providers to disclose protected health information without individual authorization as required by law. It also permits health care providers to disclose protected health information to public health authorities authorized by law to collect or receive such information for preventing or controlling disease, injury, or disability.18

Adhering to State Reporting Laws

Physicians must know and comply with their state’s reporting laws. Because each state has its own reporting laws, we have provided a state-by-state reference list in the following chapter.

Please note that in states where there are no laws authorizing physicians to report patients to the DMV, physicians must have patient consent in order to disclose medical information. In these states, physicians who disclose medical information without patient consent may be held liable for breach of confidentiality. Nonetheless, this should not dissuade physicians from reporting when it is necessary and justified, as reporting may provide protection from liability for future civil damages.

Before consulting the reference list in Chapter 8, you may wish to familiarize yourself with the legal terms and concepts provided in Figure 7.1.

Figure 7.1
Common Terminology

Mandatory Medical Reporting Laws: In some states, physicians are required to report patients who have specific medical conditions (eg, epilepsy, dementia) to their state Department of Motor Vehicles (DMV). These states generally provide specific guidelines and forms that can be obtained through the DMV.

Physician Reporting Laws: Other states require physicians to report ‘unsafe’ drivers to their state DMV, with varying guidelines for defining ‘unsafe.’ The physician may need to provide (a) the patient’s diagnosis and (b) any evidence of a functional impairment that can affect driving (eg, results of neurological testing) to prove that the patient is an unsafe driver.19

Physician Liability: Case law illustrates situations in which the physician was held liable for civil damages caused by his/her patient’s car crash when there was a clear failure to report an at-risk driver to the DMV prior to the incident.

Immunity for Reporting: Several states exempt physicians from liability for civil damages brought by the patient if the physician reported the patient to the DMV beforehand.

Anonymity and Legal Protection: Several states offer anonymous reporting and/or legal protection against civil actions for damages caused by reporting in good faith. Many states will maintain the confidentiality of the reporter, unless otherwise required by a court order.

Duty to Protect: Case law in certain jurisdictions demonstrates that physicians have a legal duty to warn the public of danger their patients may cause, especially in the case of identifiable third parties.20 With respect to driving, mandatory reporting laws and physician reporting laws provide physicians with guidance regarding their duty to protect.

Renewal Procedures: License renewal procedures vary by state. Some states have age-based renewal procedures; that is, at a given age, the state may reduce the time interval between license renewal, restrict license renewal by mail, require specific vision, traffic law and sign knowledge testing, and/or require on-road testing. Very few states require a physician’s report for license renewal.17

Restricted Driver’s License: Some states offer the restricted license as an alternative to revoking a driver’s license. Typical restrictions include prohibiting night driving, restricting driving to a certain radius, requiring adaptive devices, and shortening the renewal interval.

Medical Advisory Boards: Medical Advisory Boards (MAB) generally consist of local physicians who work in conjunction with the DMV to determine whether mental or physical conditions may affect an individual’s ability to drive safely. MABs vary between states in size, role, and level of involvement.

Driver Rehabilitation Programs: These programs, run by driver rehabilitation specialists (DRS), help identify at-risk drivers and improve driver safety through adaptive devices and techniques. Clients typically receive a clinical evaluation, driving evaluation, and—if necessary—vehicle modifications and training. (Driver assessment and rehabilitation are discussed in greater detail in Chapter 5.)

Putting it all together

With these competing legal and ethical duties, how can you fulfill them while legally protecting yourself? In this section, we provide recommendations for achieving this balance.

Counsel your patient.

Patients should be advised of medical conditions, procedures and medications that may impair driving performance. (A reference list of medical conditions and medications that may impair driving performance, with recommendations for each one, can be found in Chapter 9.)

Recommend driving cessation as needed.

As discussed in the previous chapters, you should recommend that a patient retire from driving if you believe that the patient’s driving is unsafe and cannot be made safe by any available medical treatment, adaptive device, or adaptive technique. As always, base your clinical judgment on the patient’s function rather than age, race, or gender.21

Know and comply with your state’s reporting laws.

You must know and comply with your state’s reporting laws (see the list in the following chapter). If you fail to follow these laws, you may be liable for patient and third-party injuries.

If your state has a mandatory medical reporting law, report the required medical condition(s) using the DMV’s official form. If your state has a physician reporting law, submit your report using the DMV’s official form and/or any other reporting guidelines. If the DMV’s guidelines do not state what patient information must be reported, provide only the minimum of information required to support your case.

Reduce the impact of breaching patient confidentiality.

In adhering to your state’s reporting laws, you may find it necessary to breach your patient’s confidentiality. However, you can do several things to reduce the impact of breaching confidentiality on the patient-physician relationship.

Before reporting your patient to the DMV, tell your patient what you are about to do. Explain that it is your legal responsibility to refer him/her to the state DMV, and describe what kind of follow-up he/she can expect from the DMV. Assure your patient that out of respect for his/her privacy, you will disclose only the minimum of information required and hold all other information confidential. Even in states that offer anonymous reporting, it is a good idea to be open with your patients.

When submitting your report, provide only the information required. Consider giving your patient a copy of his/her report. By providing your patients with as much information as possible, you can involve them in the process and give them a greater sense of control.

Before contacting your patient’s family members and caregivers, request the patient’s permission to speak with these parties. If your patient maintains decision-making capacity and denies permission for you to speak with these parties, you must respect the patient’s wishes.

Document thoroughly.

Through documentation, you provide evidence of your efforts to assess and maintain your patient’s driving safety. In the event of a patient or third-party crash injury, thorough documentation may protect you against a lawsuit.

To protect yourself legally, you should document your efforts, conversations, recommendations, and any referrals for further testing in the patient’s chart.22 In other words, you should document all the steps of PPODS (see Chapter 1) that you have performed, including:

Additional legal and ethical concerns

What should you do if you find yourself in a particularly challenging situation? In this section, we offer recommendations for several potential situations:

Situation 1: My patient threatens to sue me if I report him/her to the DMV.

A patient’s threat to sue should by no means influence you against complying with your state’s reporting laws. If a patient threatens to sue, there are several steps you can take to protect yourself in the event of a lawsuit:

Be aware that physician-patient privilege does not prevent you from reporting your patient to the DMV. Physician-patient privilege, which is defined as the patient’s right to prevent disclosure of any communication between the physician and patient by the physician, does not apply in cases of required reporting.

Situation 2: Should I report an unsafe driver even if my state does not have any reporting laws?

In this situation, the physician’s first priority is to ensure that the unsafe driver does not drive. If this can be accomplished without having the patient’s license revoked, then there may be no need to report the patient to the DMV.

However, if your patient refuses to stop driving despite your best efforts, then you must consider which is more likely to cause the greatest amount of harm: breaching the patient’s confidentiality vs. allowing the patient to potentially injure himself/herself and third parties in a motor vehicle crash. According to AMA Ethical Opinion E-2.24 (listed in full in Chapter 1), “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.” Before reporting your patient, you may address the risk of liability for breaching patient confidentiality by following the steps listed under Situation 1.

Situation 3: My patient has had his/her license suspended by the DMV for unsafe driving, but I am aware that he/she continues to drive.

This patient is clearly violating the law, and several questions are raised: Is the physician responsible for upholding the law at the expense of breaching patient confidentiality? Since the license has been revoked by the DMV, is the driving safety of the patient now in the care of the DMV, the physician, or both?

There are several steps you can take in this situation:

Situation 4: My patient threatens to find a new doctor if I report him/her to the DMV.

This situation, while unfortunate, should not prevent you from adhering to your state’s reporting laws. As a physician, it is your responsibility to care for your patients’ health and safety, regardless of such threats.

There are several strategies that may help you diffuse this situation:

References

1 Kelly R, Warke T, Steele I. Medical restrictions to driving: The awareness of patients and doctors. Postgraduate Medical Journal. 1999;75:537-539.

2 Miller D, Morley J. Attitudes of physicians toward elderly drivers and driving policy. Journal of the American Geriatrics Society. 1993;40:722-724.

3 Gooden v Tips, 651 SW 2d 364 (Tex Ct App 1983).

4 Wilschinsky v Medina, 108 NM 511 (NM 1989).

5 Freese v Lemmon, 210 NW 2d 576, 577-578, 580 (Iowa 1973).

6 DiMarco v Lynch Homes—Chester County, 583 A 2d 422 (Pa 1990).

7 Tarasoff v Regents of University of California, 13 Cal 3d 177 (1974).

8 Kaiser v Suburban Transportation System, 65 Wash 2d 461, 398 P.2d 14 (Wash 1965).

9 Duvall v Goldin, 362 NW 2d 275 (Mich App 1984).

10 Calwell v Hassan, 260 Kan 769, 770, 925 P.2d 422 (Kan 1996).

11 Myers v Quesenberry, 144 Cal App 3d 888, 894, 193 Cal Rptr 733, 743 (1983).

12 Schuster v Alternberg, 424 NW 2d 159 (Wis 1988).

13 Joy v Eastern Maine Medical Center, 529 A2d 1364 (Me 1987).

14 Duckwork K, Kahn M. Interface with the legal system. In: Tasman A, Kay J, Lieberman JA, Fletcher J, eds. Psychiatry. 1st ed. WB Saunders Company; 1997:1803-1821. Available at: http://www.mdconsult.com. Accessed January 20, 2003.

15 Justice J. Patient confidentiality and pharmacy practice. The Consult Pharmacist. 1997:12(11). Available at: http://www.ascp.com/public/pubs/ tcp/1997/nov/patient.html. Accessed January 20, 2003.

16 Retchin SM, Anapolle J. An overview of the older driver. Clinics in Geriatric Medicine. 1993;9(2): 279-296.

17 Tripodis VL. Licensing policies for older drivers: balancing public safety with individual mobility. Boston College Law Review. 1997;38 B.C.L. Rev 1051.

18 United States Department of Health & Human Services, Office of Civil Rights. OCR Privacy Brief: Summary of the HIPAA Privacy Rule. Available at: http://www.hhs.gov/ocr/hipaa. Accessed May 15, 2003.

19 Messinger-Rapport B, Rader E. High risk on the highway: How to identify and treat the impaired older driver. Geriatrics. 2000;55:(10)32-45.

20 Tarasoff v. Regents of University of California, 13 Cal. 3d 177 [December 1974].

21 Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

22 Carr DB. The older adult driver. American Family Physician. 2000;61(1):141-148.

* It should be noted that the Tarasoff ruling per se, upon which the principles of ‘Duty to Warn’ and ‘Duty to Protect’ are based, originally applied only in the state of California and now applies only in certain jurisdictions. The U.S. Supreme Court has not heard a case involving these principles. Many states have adopted statutes to help clarify steps that are considered reasonable when a physician is presented with someone making a threat of harm to a third party.6


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