REGULATIONS * REGLEMENTATION

Failure to report drivers' medical problemscould have serious legal consequences for MDs

Cameron Johnston

Du uring a 1992 seminar in Lon-don, Ont., the 60 physiciansin attendance were asked if

they would report to the province'sregistrar of motor vehicles a diabeticpatient who had suffered three hypo-glycemic reactions in the past 6months. In a show-of-hands vote,most indicated that they would not.

Cameron Johnston is a freelance writer liv-ing in London, Onit.

However, it was obvious that opin-ions varied greatly. Some of the doc-tors indicated that they would reporteven a single reaction. Others saidthey would not report any.

Although this was hardly a sci-entific survey, it did illustrate thatsome physicians are disconcertinglylax about their responsibility to en-

sure that their patients are fit todrive. Six provinces or territories -Ontario, British Columbia, Mani-toba, Prince Edward Island, theNorthwest Territories and the Yukon

have laws requiring doctors tonotify provincial motor vehicle li-censing authorities about patientswhose medical condition mightmake it dangerous for themselvesand others if they get behind thewheel.

Physicians' failure to reportthese patients is considered more

than an oversight; it is deemed to in-volve negligence, and the result can

be civil charges, lengthy trials andmajor financial judgements for dam-ages. Even in provinces where phys-icians may use their discretion innotifying licensing authorities, ob-servers say the possibility of legalaction should be enough to forcedoctors to err on the side of cautionand report patients with problems,regardless of what the law requires.

"I suspect that any physicianswho are sued under these provisionswill be very surprised to learn thatthey could possibly be considered as

candidates for liability," said DavidHamer, a lawyer with the London of-

fice of McCarthy Tetrault, a nationallaw firm that the Canadian MedicalProtective Association often uses todefend its members. "My impressionis that they all have some relativelyvague awareness of this [legislation]depending on where they practise,but they have no idea of how sweep-

ing the language can be."From a legal point of view,

Hamer added, these laws place an

unreasonable responsibility on phys-icians and, in effect, make them into"guarantors" of a patient's ability todrive. "Assuming that all your adultpatients are drivers, is it fair or ap-

propriate to require the physician,just because he sees the patient on a

somewhat regular basis, to become a

guarantor of the person's drivingability? I don't think [the laws are]meant to do this, but there is the riskthat it could go in that direction un-

less it is clarified by legislation or

interpreted very carefully."Physicians who fail to report

their patients' conditions can becharged under provincial statutes,though they rarely are. More com-

monly they are named as defendantsin civil actions that arise after a pa-

tient is involved in an accident thatmight have been caused by a dri-ver's medical condition.

In one case that is currently be-ing appealed, a Toronto family phys-ician and a neurologist were found40% negligent for allowing an

epileptic patient to continue driving;the patient was involved in a fatalaccident. The physicians knew the

322 CAN MED ASSOC J 1993; 149 (3)

Resume: Les medecins doiventadopter une attitude conscien-cieuse 'a l'egard de la declarationaux autorites provinciales dedelivrance des permis s'ilspensent que leurs patients souf-frent d'un etat pathologique quipourrait rendre dangereuse laconduite d'un vehicule automo-bile. Un medecin qui manque 'acette regle est passible de pour-suites. Deux medecins ontariensont recemment ete condamnes 'averser pres de 300 000 $ en dom-mages apres qu'un patient epilep-tique ait ete implique dans unaccident mortel. Le Guide pourl'examen du conducteur publiepar l'AMC traite de la prudencedont les medecins doivent fairepreuve lorsqu'ils determinentl'aptitude des patients 'a conduire.Il faut prendre des precautionssemblables pour determiner l'ap-titude au vol d'un pilote.

LE I 1 r AOUJT 1 993

patient was epileptic, but did notknow that he was not taking hismedications as prescribed. Damagesof around $300 000 were assessed.

In a second case that is now be-ing appealed, an Ontario neurologistand a family physician were foundnegligent for failing to report to au-thorities an elderly, arthritic patientwho was involved in a serious acci-dent. The patient had undergone acervical laminectomy, but after morethan a year of physical therapy wasjudged by the FP to be fit to drive.The accident occurred a year later. Inthis case, the neurologist was foundliable for 10% of the damages, thefamily doctor 20%.

Poor wording is one reasonphysicians find these laws difficultto understand. Ontario's Highway

Traffic Act, for example, states thata physician must report the name,address and clinical condition ofanyone aged 16 or older who "in theopinion of the medical practitioner issuffering from a condition that maymake it dangerous for the person tooperate a motor vehicle."

Besides the ambiguity inherentin the phrase "may make it danger-ous," the meaning of "condition" hasnever been legally defined and couldbe interpreted to include any patienttaking any prescription medicine, oreven an alcoholic, regardless ofwhether the alcoholic ever drives oreven has a driver's license.

Further, the courts in thesecases do not accept the usual yard-stick- "what would another doctordo in similar circumstances?" - as

a defence. As far as the courts areconcerned, the issue is black andwhite: did the physician report thepatient?

The CMA, in an attempt toclear up some of the ambiguity, pub-lishes a 64-page Physicians' Guideto Driver Examination, which dis-cusses the judgement doctors mustuse in deciding whether to report apatient to licensing authorities. (AllCMA members received the revisededition of Physicians' Guide to Dri-ver Examination in 1991. Additionalcopies are available from Member-ship Services, Canadian MedicalAssociation, 1867 Alta Vista Dr., Ot-tawa, ON KIG 3Y6. The cost is$11.24, including shipping, handlingand taxes. The cost for nonmembersis $13.38.)

CAN MED ASSOC J 1993; 149 (3) 323AUGUST 1, 1993

In the popular booklet, now inits fifth edition, the CMA says doc-tors should report any patient with acondition that could affect his abilityto drive, regardless of the legal re-quirements. Failure to do so cQuldleave the physician vulnerable to le-gal action if an accident occurs.

Dr. Arthur Patterson, a familypractitioner in Lunenburg, NS, andformer chairman of the CMA's Com-mittee on Emergency Medical Ser-vices, which revised the guide in1991, said one of the main issues toconsider is physician-patient confi-

dentiality. Although some provincesexplicitly protect physicians who re-port patients from breach-of-confi-dentiality charges, New Brunswick,Newfoundland and British Columbiaoffer no such protection. (NewBrunswick is currently consideringlegislation that would make such re-porting mandatory and at the sametime provide protection for phys-icians.)

Not having such explicit pro-tection "might stop the physicianfrom reporting a patient, if in thedoctor's mind there is some risk of

legal action for reporting that pa-tient," Patterson said. "It's the oldconflict between being purely a pa-tient advocate and tempering that ad-vocacy with good judgement and agood response to public versus indi-vidual needs."

Patterson said provincialstatutes have traditionally been quitedefinitive with respect to reportingconditions such as diabetes andepilepsy, but medical and pharma-ceutical advances have led to moreflexible interpretations of the law.Epileptic patients may be managed

324 CAN MED ASSOC J 1993; 149 (3) LE ler AOUT 1993

pharmacologically and, providingthat they have been seizure-free forat least 1 year, may be consideredsafe candidates for driving.

Meanwhile, in test cases inBritish Columbia and Nova Scotia,tribunals have ruled that from a hu-man rights perspective, insulin-de-pendent diabetics may not bearbitrarily prevented from operatingmotor vehicles. Each case must beviewed individually.

The CMA booklet also consid-ers a long list of conditions such aschronic pain or obesity. They may

fall into a grey area medically, butcould nonetheless affect a person'sability to drive.

"We might have been criticizedon some points because we werevague, but my response as chairmanwas that we had to write a statementas clearly as possible, knowing thatwe couldn't answer all possiblescenarios," said Patterson. "It's bet-ter to say something than to saynothing at all, or to pretend that theproblem does not exist. Even infrontier aspects like oxygen-assisteddriving and vision-assisted driving,

we had to take positions even thoughwe had to acknowledge that wedidn't have all the answers."

Patterson cautioned that doctorsshould not consider the CMA guideto be carved in stone, even thoughthe courts and some lawyers seem tointerpret it that way.

Judith Bedford-Jones, a lawyerand assistant director of the CMA'sDepartment of Ethics and Legal Af-fairs, hopes the booklet on driver ex-amination will "wake physicians up"to what their responsibilities are."It's an acknowledgement that we allhave some professional responsibili-ties or obligations to protect thosewho are more vulnerable. All it takesis one or two well-publicized casesto turn this into a big issue."

Ultimately, fitness-to-drive reg-ulations fall into the same categoryas laws that require doctors to reportcases of suspected child abuse. Theymay be ambiguous and unpopular,but are an indication of the fiduciaryrole physicians are expected to playin the care of some patients.

In any case, said Hamer, fit-ness-to-drive legislation and "fail-ure-to-report" lawsuits are sure tobecome more common as morelawyers take the deep-pocket ap-proach to litigation. "You can bet,"said Hamer, "that if the lawyer findsout there is a doctor in the back-ground of the case somewhere, [thedoctor is] going to be sued."

Regardless of what the medicalprofession thinks of fitness-to-drivelegislation, and regardless of whatcourts of appeal ultimately decide inthe cases presently before them,physicians will be considered "thebad guy" by any patients who losetheir licences as a result of a doctor'sreport.

The College of Physicians andSurgeons of Ontario recommendsthat doctors advise patients that theywill be notifying licensing authori-ties. The college says they shouldstress that they have a legal obliga-tion to report the patient's condition,and are acting to protect the patient,his passengers and others on theroad. a

CAN MED ASSOC J 1993; 149 (3) 325AUGUST 1, 1993