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McKenzie v. Hawaii Permanente Medical Group6/10/2002
and Kirk v. Michael Reese Hospital & Medical Center, 513 N.E.2d 387 (Ill. 1987), to support its argument that there should never be a duty to non-patient third parties. However, these cases offer weak support for the proposition that there is never a duty to warn of the risks of operating a vehicle while taking medication. Although the rationale relied upon in Lester and Webb (that the beneficial use of medications will be chilled) and the other considerations discussed earlier may be compelling justification for refusing to extend a duty to non-patient third parties for negligent prescribing decisions, these considerations are less persuasive when applied to the question whether physicians owe a duty to third parties to warn their patients of the potential effect on driving ability. Whether there is a duty in such circumstances must again be determined by balancing the considerations in favor of -- and against -- imposing such a duty.
It appears obvious that warning a patient not to drive because his or her driving ability may be impaired by a medication could potentially prevent significant harm to third parties. There is "little [social] utility in failing to warn patients about the effects of a drug or condition that are known to the physician but are likely to be unknown to the patient." Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998). Furthermore, a physician already owes a duty to his or her patient under existing tort law to warn the patient of such a potential adverse effect. Thus, imposition of a duty for the benefit of third parties is not likely to require significant changes in prescribing behavior.
One consideration opposing imposition of a duty to warn derives from the fact that warnings may not be effective in all circumstances. Sometimes, the incremental benefit to be obtained from requiring warnings may not be significant. For example, the court in Lester expressed doubt about the effectiveness of warnings:
In determining whether to erect a legal duty to warn, we must also consider the efficacy of that warning in preventing injury to third parties. We cannot simply assume that a person who is advised not to drive will actually respond and refrain from driving. 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. Unfortunately, many patients do not heed the admonitions of their physicians even though the consequences may be life-threatening to the patient or others. Id. at 597 (quoting Praesel, 967 S.W.2d at 398).
In Lester, however, the plaintiff did not claim that the medication had been prescribed for the first time by the defendant physician five days before the automobile accident; rather, the plaintiff claimed that the physician had "last treated" the patient five days before the accident. Lester, 970 P.2d at 591. A warning is less necessary where a patient has previously taken the prescribed medication and is presumably aware of the medication's effect upon himself or herself. From the perspective of the physician, the foreseeability of injury to non-patients due to automobile accidents is considerably less under such circumstances.
Moreover, it cannot be assumed that warnings will necessarily or usually be ineffective. For example, in Myers, the California appeals court held that a complaint stated a cause of action against the defendant doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition complicated by the fact that the patient was emotionally distraught after learning that she was carrying a dead fetus. Meyers, 193 Cal. Rptr. at 733-
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