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Robinson v. Health Midwest Development Group3/6/2001
e general public.
Unlike the special relationship of physician-patient, on which the duty to the patient to warn is predicated, there obviously does not exist a special relationship between a physician and the general public on which to base such a duty. However, as our colleagues in the Eastern District held in Millard, a duty can still arise absent a special relationship based on applying the public policy factors cited by the Missouri Supreme Court in Hoover's Dairy. Millard, 14 S.W.3d at 47. Thus, the question for us to decide is whether public policy favors extending to the general public the duty of a physician to warn a patient about the risks associated with taking a prescription drug and engaging in certain activities while under the influence of the drug, such as driving a motor vehicle.
As noted, supra, in considering whether to impose a duty based on public policy, the Missouri Supreme Court in Hoover's Dairy enunciated the following factors for consideration:
(1) the social consensus that the interest is worth protecting, (2) the foreseeability of harm and the degree of certainty that the protected person suffered the injury , (3) the moral blame society attaches to the conduct, (4) the prevention of future harm, (5) the consideration of cost and ability to spread the risk of loss, and (6) the economic burden upon the actor and the community. Millard, 14 S.W.3d at 47.
As to the first factor, whether there is a social consensus that there is an interest worth protecting, one need not look any further than to the fact that in this state, as well as in the country, there presently exists an all-encompassing effort to eradicate from our roadways drivers who are impaired by drugs or alcohol, in order to protect the safety and welfare of the motoring public. Drivers under the influence of drugs or alcohol have caused thousands of deaths on our highways as well as millions of dollars in property damage. Society's resulting outrage can be seen in our criminal statutes, making it a crime to drive a motor vehicle while under the influence of drugs or alcohol, sections 577.010, 577.012, RSMo Supp. 1996, and by the fact that civil tort actions are allowed against such drivers to recover the damages they have caused. Stojkovic v. Weller, 802 S.W.2d 152, 154-55 (Mo. banc 1991). Thus, in our view, there is a clear social consensus in this state that the law, both criminal and civil, should do everything reasonable to prevent impaired drivers from threatening the health and welfare of the motoring public. As such, it would seem to us that there would be a social consensus in this state that, in order to protect the safety and welfare of the motoring public, as well as the patient, a duty should be imposed on a physician to the general public to warn a patient not to drive due to the side effects caused by a prescribed drug impairing the patient's ability to drive safely.
The second factor for consideration is the foreseeability or the likelihood of harm and injury . As to this factor, it goes without saying that a physician should reasonably anticipate that a patient who has taken a prescription drug known to the physician to cause drowsiness and dizziness, impairing the patient's ability to safely operate a motor vehicle, is likely to cause harm and injury to himself or herself, and/or the motoring public, if the patient, unaware of the dangers, chooses to drive. This factor then would favor imposing a duty on a physician to the general public to warn a patient not to drive due to the side effects of a drug prescribed by the physician.
As to the third factor to consider in determining whether public policy favors the imposition of the duty in que
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