In a case of driving under the influence of dialysis, the South Carolina Supreme Court has ruled that a medical provider's duty to warn of the risks of a medical procedure extends to “reasonably foreseeable third parties.”

A duty runs from a medical provider to a third party non-patient when the provider fails to warn a patient of the potential effect of a medical procedure on the patient's driving ability, the court said in reinstating the negligence case of two people seriously injured in a traffic collision with a driver who had just received a dialysis treatment.

Allene Hardee and her daughter Kathleen Hardee claimed the Conway Dialysis Center was liable for allowing its patient to take the wheel without warning him that dialysis could seriously impair him. Danny Tompkins, who struck the Hardees' automobile minutes after leaving the center, died of his injuries.

The plaintiffs' attorney said Tompkins was in a hypoglycemic state and not in a condition to drive.

A trial judge found that, as a matter of law, the center owed no duty to a third party non-patient and summarily dismissed the case. But the Supreme Court disagreed, concluding in its opinion that

a medical provider who provides treatment which it knows may have detrimental effects on a patient’s capacities and abilities owes a duty to prevent harm to patients and to reasonably foreseeable third parties by warning the patient of the attendant risks and effects before administering the treatment.

Courts (see table) have imposed such a duty on doctors who prescribed medication without warning the patient of its effect on driving. “A physician owes a duty to non-patient third parties ... where the circumstances are such that the reasonable patient could not have been expected to be aware of the risk without the physician's warning,” the Hawaii Supreme Court said in McKenzie v. Hawaii Permanente Medical Group, 47 P.3d 1209 (2002).

But the Texas Supreme Court raised public policy concerns in ruling that doctors were not liable for failing to warn an epileptic patient not to drive. The patient caused a fatal traffic accident while suffering an epileptic seizure.

“The consequences of placing a legal duty on physicians to warn may subject them to substantial liability even though their warnings may not be effective to eliminate the risk in many cases,” the court said in Praesel v. Johnson, 967 S.W.2d 391 (1998).

In the Hardees' case, South Carolina's high court did not discuss such concerns. The ruling "could lead to further erosion of the doctor-patient relationship," the attorney for Conway Dialysis Center warned.

But Chief Justice Jean Toal, writing for a 5-0 majority, said the “duty owed to third parties is identical to the duty owed to the patient, i.e., a medical provider must warn a patient of the attendant risks and effects of any treatment. Thus, our holding does not hamper the doctor-patient relationship.”

By Matthew Heller
11/1/06