Do Physicians of Potentially Dangerous Patients Owe a Duty to Third Parties?

By Melanie R. Margolis

Many health care providers have patients with physical or mental conditions that may pose risks to others. Occasionally, an injury to a third party occurs, and the injured third party sues the physician claiming that the physician owed a duty and should have done more to protect and/or warn the third party. The Texas Supreme Court recently considered two cases concerning the duties owed by physicians to third parties. In determining whether a duty is owed, the court weighs the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing that burden upon the actor.

In the first case, Praesel v. Johnson, the court considered whether a physician owed a duty to a third party to warn a patient with epilepsy not to drive or to report the patient to the state drivers' license issuance authorities. In this case, Ronald Peterson, who had epilepsy, had a seizure while driving and struck a vehicle. The woman driving the vehicle died from the injuries she sustained. Her husband and mother sued three physicians who had treated Peterson and the clinic and hospital, where he had been treated before the collision, alleging negligence for failure to warn Peterson not to drive, failure to inquire of Peterson whether he had experienced seizures, and failure to inform the state Medical Advisory Board of Peterson's condition.

First, the court determined that no civil tort duty exists in this situation based on Texas statute. Texas statutes permit, but do not require, physicians to inform the Department of Public Safety (DPS) or the Medical Advisory Board of the name and address of patients with certain conditions, including epilepsy (if the patient has had a seizure within the last 3 years or is under the care of a physician). Such a report by a physician, if made, does not even automatically result in revocation of the patient's license. Imposing negligence for such a failure to report would subject physicians to broad liability for breach of "an ill-defined duty."

Next, the court considered whether it should create a common law duty to third parties to warn patients with epilepsy against driving. The court noted that in certain limited instances, some Texas courts of appeal have imposed on a mental health care provider a duty to warn an identifiable third party (as opposed to the general public, as in the case at hand). The opinion of the court declined to impose a duty on physicians, holding "that the benefit of warning an epileptic not to drive is incremental but that the consequences of imposing a duty are great."

The Texas Supreme Court reached a similar conclusion in Van Horn v. Chambers. The court considered whether a physician owed a duty to hospital employees who were killed or injured by a violent patient the physician transferred to an unsecured general floor of a hospital. In this case, the patient was admitted to Hermann Hospital for treatment of seizures and alcohol withdrawal. Because he was combative, hospital personnel sedated him, and he was admitted to the neurological critical care unit by Dr. Van Horn. The following day, Dr. Van Horn determined that the patient no longer needed critical care and transferred him to a private room. The patient decided to leave the hospital, and hospital personnel confronted him to prevent his leaving. A struggle ensued, and the patient and three hospital employees crashed though a louvered grill covering an open air shaft and fell 24 feet to a concrete floor. A medical student and a patient care technician were killed, and the patient and a food service worker were injured.

In the ensuing negligence suit against the doctor, the court noted that the plaintiffs would have to show three elements: (1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from that breach. The court, however, declined to find a duty on the part of the physician toward third parties stemming from the physician's relationship with the patient. Citing its Praesel v. Johnson opinion, the court stated that "[a]ny duty of reasonable care on Dr. Van Horn's part to avoid such negligence originates solely through the relationship with, and flows only to, his patient."