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Robinson v. Health Midwest Development Group3/6/2001
stion, "the moral blame society attaches to the conduct," we also think it favors imposing the duty in question. By virtue of a physician's education and expertise, a patient submits to and relies on the physician's directives with respect to treatment and care such that the physician occupies a certain position of control over a patient with respect to the patient's treatment and care. As such, when a physician prescribes a drug with associated side effects known to the physician but unknown to the patient, creating a potential danger not only to the patient if he or she drives under the influence of the drug but to the general public, there is no doubt in our minds that society would find fault with a physician who fails to warn the patient not to drive, in order to protect not only the patient but the general public.
Consideration of the fourth factor, "the prevention of future harm," would also favor the imposition of a duty. It is reasonable to assume that a warning to a patient not to drive a motor vehicle while taking a prescribed medication would greatly increase the likelihood that the patient would not drive. Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992). One can assume that a reasonable person would not want to endanger his or her life by driving when he or she has been advised by a chosen and trusted physician not to do so because of the potential danger involved. Id. Moreover, simply because there is a possibility that a warning might be ignored should not relieve the actor of giving it. Hence, the potential danger and harm to a patient and the general public caused by a patient driving while being impaired by a prescribed medication could in many cases be averted simply by a warning from the physician to the patient not to drive while under the influence of the medication.
As to factor five, "the consideration of cost and ability to spread the risk of loss," and factor six, "the economic burden upon the actor and the community," we believe that they also cut in favor of imposing a duty. Although there may be some added cost in the way of increased premiums for extending coverage as to existing professional liability insurance, such insurance would allow the physician to spread the risk of loss. As to any added burden, we see none in that the required warning to the patient necessary to satisfy the physician's duty owed to the patient to warn would necessarily satisfy the duty owed to the general public to warn. In other words, the warning to the patient not to drive while taking the medication would not only serve to protect the health and safety of the patient but of the motoring public as well.
In addition to the six public policy factors favoring a duty of a physician to the general public to warn a patient not to drive a motor vehicle while taking a medication known to the physician to cause side effects impairing the patient's ability to do so, we find further support for such a duty in the dramshop cases governed by section 537.053. In that regard, section 537.053 permits a tort action by a party injured by an intoxicated person against a party who served the intoxicated person intoxicants, provided the intoxicated person was under twenty-one years or was obviously intoxicated at the time. See Kilmer v. Mun, 17 S.W.3d 545, 545 (Mo. banc 2000). In enacting section 537.053, the legislature recognized that the absence of a special relationship between the injured party and the offending actor would not prevent the imposition of a duty on the actor to the general public not to serve intoxicants to a person under twenty-one years or who is obviously intoxicated. In effect, the legislature codified the public policy of this state. Consistent with this p
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