Johnston, James C. MD, JD
Regarding the Legal-Ease column, “Seize and Desist: The Ethics and Legality of Reporting Epileptic Drivers” (Nov. 1, http://bit.ly/STsje6), Joseph Kass, MD, and his co-author Jennifer Wax provide an excellent reminder of the increasing liability associated with reporting or not reporting the epileptic driver. Factors contributing to this legal morass include different reporting requirements among jurisdictions, varying levels of immunity for both reporting and non-reporting, and an absence of relevant guidelines for managing the epileptic who drives against medical advice. The concern, of course, is that if an epileptic drives and suffers a seizure-related accident, it may trigger a malpractice suit by the patient or patient's estate. Moreover, neurologists may be liable to third parties for certifying a patient to drive or failing to report an epileptic driver. Courts have ruled both ways in this emerging area of third party liability, with decisions turning on whether the neurologist owes a duty to the third party.
So what practical steps can the neurologist take to limit this liability? Perform accurate, thorough, and timely medical record documentation. Perhaps it is best to review the applicable duty owed to an epileptic driver in order to understand the type of documentation necessary to protect against a lawsuit. It is incumbent upon neurologists to advise patients of the legislation regarding driving and epilepsy in their particular jurisdiction, and to emphasize the importance of complying with the law.
If the state has a self-reporting requirement, then the neurologist should advise the patient in writing to comply, and retain a copy of this letter in the medical records. The records should clearly document the relevant discussions of driving restrictions as well as restrictions on other activities, the effect of discontinuing or changing dosage of an antiepileptic or adding a medication that may affect anticonvulsant levels, and possible side effects of medications in relation to driving.
These points must be reiterated and documented upon any medication change, due to an increased risk of breakthrough seizures. In a mandatory reporting jurisdiction, keep a copy of any notification sent to the state. If applicable, the neurologist should record any factors that may mitigate liability for not filing a report. These steps will minimize liability associated with managing the epileptic driver, including third party liability. Of course, in order to fulfill this duty, neurologists must remain cognizant of the relevant statutes in their jurisdiction, and recognize common law trends for ambiguous situations.
A more serious concern arises when the neurologist practicing in a voluntary reporting state advises a patient not to drive, and then learns the patient continues driving. The failure to take further action is unacceptable. The neurologist should inform the patient in writing about the potential consequences of driving, keep a copy of the letter in the medical records, and consider filing a voluntary report with the appropriate government agency. There may or may not be statutory protection for making a good faith report in accordance with the prevailing standard of care. If there is immunity, the level varies in different jurisdictions. It is advisable to consult legal counsel in this situation. Regardless, accurate and thorough documentation remains the best defense.
James C. Johnston, MD, JD
Consultant Neurologist and Attorney at Law