dissenting.
I dissent. The issue here is whether a physician may be held hable to a third-party for an automobile accident caused by the physician’s patient who was discharged without a warning from the doctor not to drive. I would hold the physician had a duty to warn his patient not to drive, and failing to do so, he could be hable when the patient caused injury to the driving pubhc.
If the courts of Texas impose liability for injury to the pubhc on a tavern owner for a traffic accident caused by an inebriated guest,1 on an employer for a traffic accident caused by an inebriated employee who is sent home from work,2 on a doctor for administering a drug to a patient without warning the patient not to drive,31 see no reason why the courts of Texas will not impose liability on a doctor who treats a person for cocaine ingestion and does not tell the patient not to drive. All four cases involve injury to the pubhc; ah four cases involve accidents caused by persons who are under the influence of drugs; all four cases involve a defendant who has no other relationship with the plaintiff except for his neghgent conduct toward the person who caused the accident.
The person who caused the accident in this case, Broadus, was treated by Dr. Kremer for the after-effects of cocaine ingestion and then released. On the way home, he had a seizure related to the cocaine and ran into the back of the plaintiffs car. The plaintiff was seriously injured. The trial court granted Dr. Kremer a summary judgment on the ground that he had no duty to the plaintiff. On appeal, the plaintiff contends the trial *407court erred in granting the summary judgment because the doctor did not disprove the plaintiffs pleadings — that the doctor should have warned his patient not to drive. Thus, the legal issue is (assuming for summary judgment purposes that the doctor did not tell the patient not to drive): Is the doctor liable to the plaintiff for not warning his patient not to drive?
The majority distinguishes the facts in this case from those in Gooden v. Tips, 651 S.W.2d 364, 366 (Tex.App.—Texarkana 1983, no writ) on the ground that the doctor in Gooden did not warn his patient about the effects of a drug prescribed by the doctor; here, the doctor did not warn his patient about the effects of a drug ingested for recreational purposes. I do not think that distinction is important.
The majority reasons that because Dr. Kremer did not give Broadus the drug that impaired his driving (he did not “create the impairment” that resulted in the plaintiffs injury), Dr. Kremer did not owe the plaintiff a duty to warn Broadus not to drive. The majority considers Broadus’ ingestion of cocaine as the only cause of the automobile accident, and says that “Dr. Kremer’s care and treatment bears no relationship to that incapacity.” I disagree on both counts. Broadus’ ingestion of cocaine was not the only cause of the accident. If Broadus had stayed at the hospital or had taken a taxi home, there would not have been an accident. The accident was caused by both Broadus’ ingestion of cocaine and his driving on a public highway while still under the influence of the cocaine. Dr. Kremer bears some responsibility, not for the cocaine ingestion, but for his patient driving while still under the influence of the cocaine.
That is not to say a doctor has responsibility for every condition of a patient that might cause a traffic accident. Here, Broadus sought treatment for the very condition that ultimately caused the accident. Dr. Berry, the plaintiffs expert, testified in a deposition that under circumstances similar to this ease he would instruct a patient not to drive even if the symptoms of intoxication had abated.
If in this case, if both Broadus and the plaintiff had sued the doctor for injuries caused by the automobile accident, the majority would presumably hold the doctor liable to his patient for failing to tell him about the side effects of the cocaine, but not to the plaintiff.4 I do not understand how we could hold the doctor responsible to the patient but not responsible to the third-party victim of the same accident. In both cases the injury was equally foreseeable.
There is no distinction between Gooden and the case before us — the treating doctor has a duty to the public to tell his patient not to drive when he is impaired, either by drugs administered by the doctor or by the condition for which the patient seeks medical attention.
Once the doctor-patient relationship was established, Dr. Kremer assumed a duty to act in a non-negligent manner. “One who voluntarily enters an affirmative course of action affecting the acts of another is regarded as assuming a duty to act and must do so with reasonable care.” Otis Engineering, 668 S.W.2d at 309. There is no distinction between misfeasance and nonfeasance if non-feasance means simply omission to do something there is an affirmative duty to do. S.H. Kress & Co. v. Selph, 250 S.W.2d 883, 892 (Tex.App.—Beaumont 1952, writ ref'd n.r.e.).
I would hold that by virtue of his doctor-patient relationship in which Dr. Kremer undertook the care and treatment of Broadus for the cocaine ingestion, Dr. Kremer assumed a duty to warn Broadus not to drive for a reasonable period of time after the onset of chest pains.
In El Chico, where the supreme court imposed liability on a tavern owner for injury to a third party caused by a person who became inebriated at the tavern, the court said:
*408Injury to a third person is no longer un- . foreseeable in an age when death and destruction occasioned by drunk driving is so tragically frequent.
El Chico, 732 S.W.2d at 310. In a recent discussion of the El Chico case, the supreme court said:
Given the common knowledge of the effects of alcohol and the direct nature of the defendant’s activity, it could be said with certainty that injuries resulting from such activity were foreseeable.
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 526 (Tex.1990).
Given the special knowledge by Dr. Kremer of the delayed reaction to cocaine and the direct nature of the defendant’s activities, it could be said with equal certainty that injuries resulting from such activity were equally foreseeable.
The rule has long been recognized in Texas that one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other person will not be injured. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). The rule, stated in the Restatement (Second) of Torts § 324A, is as follows:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
In C & H Nationwide, Inc. v. Thompson, 810 S.W.2d 259, 262 (Tex.App.—Houston [1st Dist.] 1991, writ granted), this Court relied on section 324A of the Restatement in holding that Ecotech, a company paid to load pipe for Shell, had a duty to a person killed in an accident when the pipe fell off the truck. We said it was foreseeable by Eco-tech that if the pipe was not safely secured, the pipe might come off the trailer in transit and injure another motorist. Id. at 267.
In Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 255-56 (Tex.App.—Austin 1993, writ requested), the Austin Court of Appeals dealt with similar problem relating to duty. In that case, Doe sued SmithKline for negligence in operation of its drug-testing laboratory. When Doe applied for a job with Quaker, she was required to submit to a test for drugs. The result was positive and she was not employed. The issue in the summary judgment case was whether SmithKline owed a duty to Doe and whether she could sue them for negligence in performing the tests. The Austin Court of Appeals said she could, even though she did not have a relationship with them, and their only connection was through Quaker.
We can make an analogy between these two cases. In SmithKline, SmithKline had a contract with Quaker and no relationship with Doe; its negligence was in the performance of its agreement with Quaker; by negligently performing its agreement with Quaker, it injured Doe; and the court found SmithKline could be liable to Doe. Here, Dr. Kremer had a patient-doctor relation with Broadus and no relationship with the plaintiff; his negligence was in the treatment of Broadus; and by negligently performing his doctor-patient duties, he injured the plaintiff. If SmithKline is a correct analysis of duty, and if the analogy with this case is sound, we should, like the Austin Court, hold the doctor may be liable for the plaintiffs injuries.
I would hold that it was foreseeable by Dr. Kremer that if he did not warn his patient not to drive, the patient could have a delayed reaction to cocaine while driving home, and cause an accident which would injure another person.
I would sustain point of error two.
. El Chico Corp. v. Poole, 732 S.W.2d 306, 306 (Tex.1987).
. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 311 (Tex.1984). I recognize that in Otis, the supreme court based its holding on the fact that the employer exercised control over an employee, and had the right to send him home. Id. at 310. As the majority states, control is not the issue in this case.
. Gooden v. Tips, 651 S.W.2d 364, 366 (Tex.App.—Texarkana 1983, no writ).
. See generally, Robert A. Brazener, Annotation, Physician’s Liability for Injury or Death Resulting from Side Effects of Drugs Intentionally Administered to or Prescribed for Patient, 45 A.L.R.3d 928 (1972); J.R. Kemper, Annotation, Malpractice: Doctor’s Liability for Mistakenly Administering Drugs, 23 A.L.R.3d 1334 (1969).