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McKenzie v. Hawaii Permanente Medical Group6/10/2002
ive nonetheless. Id. A passenger on the bus was injured in the accident and sued the doctor and the bus company. Id. at 15 (majority opinion). The trial court dismissed the case against the doctor at the conclusion of the evidence on the grounds that the evidence did not show any standard of care to which the doctor was bound and that, even if the doctor was negligent in not warning the driver that the medication may cause sedation, the driver's negligence in failing to stop when he began to feel drowsy was an intervening cause. Id. The trial court, therefore, directed a verdict against the driver. Id. The Washington Supreme Court reversed. Id. at 19.
In so doing, the supreme court noted that the evidence suggested that the doctor may not have informed his bus driver-patient of "the dangerous side effects of drowsiness or lassitude" from the drug and that expert evidence suggested that it was negligent not to do so. Id. at 16. The court also held that the plaintiff was entitled to judgment as a matter of law on the issue of liability against either the bus driver, the doctor, or both, depending upon whether the doctor had informed the driver of the risk of drowsiness and whether the driver was contributorily negligent. Id. at 18-19. In remanding the case, the court held that:
The jury should be directed that (a) in the event it finds no warning was given the bus driver as to the side effects of the drug, it shall bring in a verdict against . . . the doctor; (b) in the event the jury finds the bus driver failed to exercise the highest degree of care, even though he was given no warning as to the side effects of the drug, the jury shall also bring in a verdict against the bus company and the driver; and (c) in the event the jury finds that a warning of the side effects of the drug was given to the bus driver, then the verdict shall be against the bus company and the driver only. Id. at 19.
Thus, the basis of the doctor's duty to the non-patient bus passenger stemmed solely from the need to warn his patient, a bus driver, of the potential side effect of drowsiness.
Indeed, in many of the cases discussed in the previous section in which it was determined that a physician may owe a duty to non-patients, it appears that the physician's failure to warn his or her patient of the potential effects of the patient's medication or condition on driving ability was the predominant factor in the court's decision. In Gooden, for example, the Texas Court of Appeals reversed the trial court's grant of judgment on the pleadings in favor of the physician defendant where the physician allegedly prescribed Quaalude to a patient who subsequently injured the plaintiff in an auto accident. See Gooden, 651 S.W.2d at 365. The patient had been a patient of the doctor for twenty years and the physician was aware of the patient's drug abuse problems. See id. The court held that the physician "may have had a duty to warn his patient not to drive." Id. at 370 (emphasis in original); see also Freese, Myers, and Duvall, supra note 9. Moreover, although the courts in Welke and Schuster did not expressly discuss the failure to warn issue as a predominant factor in their reasoning, failure to warn may have played some role in the decision not to preclude all chance of liability before trial. See Welke, 365 N.W.2d at 208 (decided at summary judgment stage); Schuster, 424 N.W.2d at 229-30 (decided on pleadings). In these cases, failure to warn was included among several other claims which both courts allowed to proceed.
Kaiser relies primarily upon Lester, Webb, Werner v. Varner, Stafford & Seaman, P.A., 659 So.2d 1308 (Fla. App. 1995), Conboy v. Mogeloff, 567 N.Y.S.2d 960 (App. Div. 1991),
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