Hospodar v. Schick

Dissenting OPINION BY

TAMILIA, J.:

¶ 1 I respectfully dissent from the majority’s decision relieving appellants of any responsibility for the vehicular accident which resulted in the deaths of two innocent individuals. Although I would decline to find a duty in every instance involving a physician, his patient and a third party, I believe the imposition of liability is appropriate in this situation, where the two victims in a stopped vehicle were killed as a result of being violently struck by a driver whose treating physician was aware the patient-driver had a well-documented his*991tory of seizures and yet failed to diagnose or properly report the driver’s condition to PennDOT.

¶2 The majority, upon reviewing the record in this case and considering certain cases promulgated by the Pennsylvania Supreme Court, finds the facts in the case under review to be analogous to the Supreme Court’s earlier determinations and thereby reverses the Order of the trial judge. I believe the Honorable Alan S. Penkower properly and clearly distinguished the facts in this case from the several cases delineated by the majority as controlling, and found for the plaintiffs. Having carefully reviewed the record, the law applicable to this narrow and fact-driven issue, and the findings flowing there from, I would affirm the Order of Judge Penkower.

¶ 3 This case arises from separate medical malpractice actions filed on behalf of the estates of Patricia A. Schick and Sherry A. Zeis in connection with a fatal automobile accident that occurred on October 18, 2000. Appellees alleged appellants were negligent in the treatment and care of Jack Smith, the driver of the automobile that collided with appellees’ decedents’ vehicle, and that appellants’ negligence was the legal and factual cause of decedents’ deaths. Record, No. 5.

¶4 Following oral argument on appellants’ preliminary objections arguing that they owed no duty to the third parties in this case and that the decedents were not foreseeable victims of Dr. Hospodar’s actions or inactions, the court denied the preliminary objections, and on March 20, 2003, consolidated the two cases and certified the matter for interlocutory appeal. Record, Nos. 9, 10. This timely appeal followed. Appellants now argue “the trial court erred in overruling the appellants’ preliminary objections to the plaintiffs complaints when the Supreme Court has ruled that the Motor Vehicle Act does not allow for a physician to be held liable to a third party who has been injured by one of the physician’s patients.” Appellants’ brief at 4,10.

¶ 5 The majority Opinion correctly sets forth the applicable standards of review and Motor Vehicle Code and Medical Advisory Board regulations but, contrary to my position, agrees with appellants “that the Vehicle Code only requires physicians to provide medical information regarding the conditions of certain licensed drivers to the Commonwealth so it can determine if their operating privileges should be revoked, and does not authorize a private cause of action based upon physicians failure to report a driver’s condition to PennDOT.” Majority Opinion at 989.

¶ 6 To the contrary, I agree with Judge Penkower’s conclusion that given Dr. Hos-podar’s knowledge that Smith had sustained two prior automobile accidents as a result of “blacking out,” it was “readily foreseeable that Smith would become involved in another accident if he continued to drive.” Trial Court Opinion at 5. The court further found “Dr Hospodar had a duty to take steps to minimize this risk” and properly and accurately report Smith’s condition to the Pennsylvania Department of Transportation (PennDOT). Id.

¶ 7 In support of their claim, appellants rely on Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623 (1999) and Crosby by Crosby v. Sultz, 405 Pa.Super. 527, 592 A.2d 1337 (1991). Id. at 11, 17, 592 A.2d 1337. The majority adopts the position of appellants and l'elies upon their interpretation and application of Witthoeft as the basis for reversal of the trial court. After careful review and consideration, I would find Witthoeft, Crosby and DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990), as cited by *992the majority, to be factually distinguishable from this case.

¶ 8 Witthoeft involved the question of whether the estate of a bicyclist, who was killed when she was struck by an automobile driven by a patient, possessed a cause of action against the patient’s ophthalmologist for failure to report the patient’s substandard vision to PennDOT. Witthoeft at 343, 733 A.2d at 624. In Witthoeft, Dr. Kiskaddon performed a vision examination of the patient-driver four months prior to the accident and determined that she had visual acuity of 20/80 combined. Under the relevant reporting requirement, “[a] person with visual acuity of less than 20/70 combined vision with best correction [was] not authorized to drive.” 67 Pa.Code § 83.3, Visual standards, (c). Dr. Kiskad-don, however, failed to report the results of the patient-driver’s examination to PennDOT. Witthoeft, supra.

¶ 9 The Supreme Court found Dr. Kis-kaddon owed no duty to Ms. Witthoeft “because there was no foreseeability of Ms. Witthoeft being the object of the physician’s failure to notify PennDOT.” Id. at 344, 733 A.2d at 625. In reaching this conclusion, the Court noted that neither the Motor Vehicle Code, nor the regulation requiring physicians to report patients’ vision problems to PennDOT, expressly or impliedly created private cause of action for third parties. Id. at 345-346, 733 A.2d at 626.

¶ 10 Similarly, in Crosby, this Court upheld a trial court’s dismissal of complaint brought against the physician of a diabetic patient who sustained a temporary loss of consciousness while driving and struck the plaintiffs, injuring them. Id., supra at 1338-1339. In Crosby, the plaintiffs maintained that the patient-driver’s physician, Dr. Sultz, should have counseled him not to drive and reported him to PennDOT pursuant to the Motor Vehicle Code. Id. at 1340. The relevant reporting requirement, 67 Pa.Gode § 83.5, Other physical and medical standards, (a)(2), mandated notification if the patient suffered from unstable or brittle diabetes, unless there had been a continuous period of at least six months freedom from a related syncopal attack. This Court noted:

[I]t is not the physicians’ job to protect all third parties who might come into contact with the affected individual. Clearly, the provisions implicated here do not mention a duty to report the patient’s medical deficiency to any specified third party. Rather, the physicians’ only responsibility is to evaluate (within the confínes of the legislative language) the patient’s ability to operate a motor vehicle and to notify the Department of Transportation if the patient is unable to drive in a safe manner. Reporting the patient to the proper authorities when necessary is very different from imposing upon a treating physician the duty of protecting the entire public from any harm that might result from his/her patient’s actions.

Id. at 1343-1344 (citations omitted).

¶ 11 Unlike Witthoeft and Crosby, the case now subject of our consideration involves a situation where the patient-driver had a history of prior accidents as a result of the medical condition in question, and the reviewing physician was fully aware of this condition prior to the PennDOT evaluation. As the trial court noted, “[i]n Crosby the culpable driver was a diabetic patient who had never suffered a loss of consciousness previously as a result of his affliction. In Whitthoeft [sic], the driver was a patient with poor vision, but there was no allegation that her vision had ever previously caused her to become involved in an accident.” Trial Court Opinion at 5. Here, appellants knew or had reason to know that their patient, Jack Smith, suf*993fered from a seizure disorder and had sustained two prior automobile accidents as a result of his propensity to “black out.” Unfortunately for appellees’ decedents, however, they failed to provide Smith with adequate treatment for his condition, did not advise him to refrain from driving, and did not properly notify PennDOT that Smith was not physically competent to operate a motor vehicle.

¶ 12 Although not discussed in great detail by the majority, appellants further maintain “the trial court erred in finding that the decedents of the appellees were foreseeable victims when they were struck by a motor vehicle driven by one of the appellant’s patients.” Appellants’ brief at 4,14.

¶ 13 “In a negligence ease, the harm suffered by the plaintiff must be foreseeable to a defendant in light of that defendant’s conduct.” R.W. v. Manzek, 838 A.2d 801, 804 (Pa.Super.2003), citing Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 457 (Pa.Super.1997) (a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others). “Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Where the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions.” Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 790 (Pa.Super.2005) (citations omitted).

¶ 14 Our Supreme Court has recognized that care-givers may have a duty to use reasonable diligence in treating their patients so as to prevent harm to innocent members of the public. See Goryeb v. Com., Dept. of Public Welfare, 525 Pa. 70, 575 A.2d 545 (1990); DiMarco supra.

¶ 15 In Goryeb, the Court held that a mental health institution was liable to a third party who was killed by a former patient who was released from treatment even though the facility concluded that the patient posed a “clear and present danger to himself and others” and was “severely mentally disabled.” Goryeb at 73-76, 575 A.2d at 546-547. The Court’s decision to impose liability was supported by sections of the Mental Health Procedures Act, 50 P.S. §§ 7101-7503, specifically addressing when individuals employed by mental health facilities may be liable for the consequences of treatment or discharge decisions. Id. at 76-78, 575 A.2d at 548-549.

¶ 16 Similarly, in DiMarco, the Supreme Court held that a physician who provided erroneous advice to a patient he knows suffers from hepatitis could be liable to a third party to whom the patient transmits the disease during sexual contact. DiMarco at 559-560, 583 A.2d at 423. The Court concluded:

Thus, the duty of a physician in such circumstances extends to those within the foreseeable orbit of risk of harm. If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, the third person has a cause of action against the physician, because the physician should recognize that the services rendered to the patient are necessary for the protection of the third person.

Id. at 562, 583 A.2d at 424-425 (citation omitted).2

*994¶ 17 As did the trial judge, I find the facts underlying this case to be more analogous to our Supreme Court’s holdings in Goryeb and DiMarco than Witthoeft and Crosby. Given his knowledge of Smith’s medical condition and history of prior accidents, it was, or should have been, entirely foreseeable to Dr. Hospodar that the failure to properly diagnose Smith and inform PennDOT that he was unfit to drive would create a risk of harm to both Smith and any third parties with whom he shared the road. Appellants clearly breached their duty to do so.

¶ 18 Additionally appellants contend “public policy precludes the finding of a duty of care by a physician to a third party who is not the physician’s patient.” Appellants’ brief at 4, 19. Based on the foregoing discussion and the limited factual scenario under which I have analyzed this case, I disagree. Contrary to appellants’ assertion, allowing appellees to maintain a cause of action against appellants in this case would not “open up physicians to lawsuits anytime one of their patients is involved in some type of accident whereby the patient injured a third party.” Appellants’ brief at 9. As this Court espoused in Spierling v. First American Home Health Services, Inc., 737 A.2d 1250, 1253 (Pa.Super.1999):

It is only when a given policy is so obviously.. .against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that the court may constitute itself the voice of the community in so declaring.

Id. at 1253 (citation omitted). The instant matter is clearly not such a case and it is for that reason my conclusions are limited to the specific facts set forth in this matter and, as previously indicated, I would decline to find a duty in every instance involving a physician, his patient and a third party.

¶ 19 I reject appellants’ claims of trial court error and dissent to the majority decision reversing the court’s Order.

. While not binding on this Court, I note that a number of jurisdictions have concluded that a physician may owe a duty to third parties whose patient causes them injury. See Duvall v. Goldin, 139 Mich.App. 342, 362 N.W.2d 275 (1984) (it is foreseeable that a doctor’s *994failure to diagnose or properly treat an epileptic condition may create a risk of harm to a third party, and whether the proximate cause of the accident was defendant’s negligence is a question of fact for the jury); Burroughs v. Magee, 118 S.W.3d 323 (Tenn.2003) (a physician who prescribed medication to his patient owed a duty of care to non-patient third party to inform his patient of possible adverse effects of the medication when the patient caused an automobile accident with the third party); Harden v. Allstate Ins. Co., 883 F.Supp. 963 (D.Del.1995) (a physician owed common-law duty to the public at large to take steps to prevent his patient who suffered from epilepsy from driving, but it remains for the jury to determine whether that the physician has violated that duty.)