Physicians As Gatekeepers For Society: Confidentiality Of Protected Health Information Versus Duty To Disclose At-Risk Drivers
The Health Lawyer - The ABA Health Law Section,
Volume 16, Number 1 November 2003
Americans treasure freedom, especially the freedom to travel. In fact, the United States is one of the most mobile nations, with over four trillion miles of passenger travel annually recorded in the late 1990s.1 It is no wonder that we value our freedom to journey from place to place. Being mobile allows us access to a variety of social, cultural, and financial opportunities.
For many people, the privilege of having a driver's license is cherished because it allows us the freedom to travel to whatever place we choose at whatever time we choose. A driver's license is a lifeline for many due to the independence and autonomy it provides, especially to the elderly and disabled, who already experience isolation from mainstream American life. Deciding to surrender a driver's license may force an individual to acknowledge that he or she is no longer an active part of society. Making the transition from being independent to having to depend on others for transportation is not easily made. Oftentimes, a physician must initiate the discussion of whether and when a person should surrender his or her license to operate a motor vehicle.
Physicians play a key role in identifying and assessing the impact that physical and mental conditions have on driving impairment.2 Their unique position as gatekeepers places legal and ethical duties on physicians to guard the public's safety. Physicians have a simultaneous duty to guard patients' confidentiality in protected health information, especially in light of the recent Health Insurance Portability and Accountability Act of 1996.3 This article will examine the impact that federal and state confidentiality laws have on the duty of physicians to report physical and mental impairments to the department of motor vehicles.
Killer Drivers
In July 2003, George Russell Weller drove his car into a crowded open marketplace in Santa Monica California, hitting as many as 50 people and killing ten people, from ages 7 months to 78 years.4 That is just one story behind the statistics.
The statistics are startling. In the United States, there were more than 56,000 drivers involved in fatal crashes during l996.5 Almost 20 percent of them were intoxicated and 14 percent were over 70 years old.6 In 1998, 13 percent of the general population was over the age of 65 years.7 Yet, that same group represented 18 percent of motor vehicle deaths.8 The U.S. Department of Transportation projects that by the year 2030, older drivers will represent 20 percent of the population.9
Individuals who are 75 years or older have the second highest motor vehicle fatality rate per 100,000 people.10 Studies show that, per licensed driver, fatal crash rates rise sharply at age 70 and older.11 In the group of drivers age 85 and over, the per mile fatality rate exceeds all other groups, including teenagers.12 Accidents involving the elderly are most common when: the individual drives out from the side of the road; changes lanes of traffic; negligently backs up; makes incorrect turns; has poor judgment in giving right of way; or has difficulty in reading traffic signs.13
While these types of accidents rarely involve elderly drivers traveling at high rates of speed, or driving while intoxicated, the likely causes are their declining vision, cognition, and motor skills.14 Elderly people are at higher risk to be involved in accidents during the day, in good weather, at intersections, while they are close to home, or that involve multiple vehicles.15 Moreover, police are more likely to determine that the elderly drivers are at fault.16 But, age is not the only factor that physicians must consider.
In 2002, an estimated 17,419 people died in alcohol related traffic crashes, constituting 41 percent of the total highway fatalities.17 Using this grim statistic, there is an average of one alcohol-related motor vehicle fatality every 30 minutes.18 It is estimated that in 2001, more than 500,000 people were injured in motor vehicle accidents where police determined that there was alcohol present (an average of one person injured every two minutes).19 Ninety-seven percent of the general public who are in the motor vehicle driving age range view drinking and driving as a threat to their personal safety.20 Of that group, 66 percent find it extremely important to reduce the problem of drinking and driving.21 One way to reduce the problem is to report impaired drivers to the department of motor vehicles in the state where the person resides.
Physicians and other health care professionals play key roles as gatekeepers to prevent potentially impaired drivers from causing property damage, injuries, and fatalities. During routine and follow-up examinations, as well as treatment sessions, the medical professional has the opportunity to assess and evaluate the patient's physical and cognitive abilities to drive. The one-to-one-interaction between the medical professional and the patient allows personal contact and private communication that is not possible in any other arena. Recently, the courts began to recognize this unique position by imposing liability on a medical professional that fails to disclose confidential information that may impact the safety of other individuals.
Tarasoff v. The Regents of the University of California
In 1974, the California Supreme Court held that a psychologist has a duty to use reasonable care to give threatened persons sufficient warnings to prevent foreseeable danger that arises from the condition of the patient.22 In Tarasoff, a male student from India named Prosenjit Poddar came to the University of California-Berkley to study architecture. He attempted to engage in a romantic relationship with a woman named Tatiana Tarasoff, who rejected him. Prosenjit became distraught and depressed and sought the help of a psychologist. The psychologist was employed at the University of California-Berkley Hospital. During one of the therapy sessions, Prosenjit confided that he intended to kill Tatiana. The psychologist consulted with two psychiatrists and determined to admit Prosenjit for observation. The psychologist also reported the threat to campus police. The campus police briefly detained Prosenjit and searched his apartment. After deciding that Prosenjit was rational and obtaining reassurances from Prosenjit that he would stay away from Tatiana, he was released from police custody. Prosenjit never returned to therapy. The psychologist's supervisor directed the psychologist to take no further action either to commit Prosenjit or to warn Tatiana or her parents of Prosenjit's threats.
On October 27, 1969, Prosenjit killed Tatiana. After her death, Tatiana's parents sued the University of California-Berkley. The lower courts dismissed the civil action against the University, reasoning that the lower court erred by finding there was no cause of action since the University owed no duty of care to Tatiana, who was not its patient, but merely a third party. The California Supreme Court reversed and allowed Tatiana's parents to maintain their cause of action for failure to warn. As the court explained:
We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. To the contrary, the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (See Cal.L.Rev. 1025, 1065-1066.)
The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9: "A physician may not reveal the confidence entrusted to him in the course of medical attendance … unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community." We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins. (Emphasis added).23
Following the release of the Tarasoff decision, other jurisdictions have held that medical personnel have a right, as well as a duty, to warn third parties about a patient's potential danger to others.
Cases After Tarasoff
In another California case, Thompson v. County of Alameda,24 a juvenile offender told the staff at the facility where he was confined that, if they released him, he would kill a young child in his neighborhood, but he did not name a specific victim. After the offender was released from the facility, he killed a young neighbor, and the victim's family sued the county facility. The California Supreme Court held that in the absence of a readily identifiable foreseeable victim, there is no duty to warn. It noted that, in light of the infrequency with which threats of violence by a patient are carried out, and in light of society's interest in encouraging free communication between therapist and patient, the existence of an identifiable group of potential victims was not enough to impose a duty to warn.25
In another infamous case, Brady v. Hopper,26 gunshot victims from John Hinckley's attempted assassination of former President Ronald Reagan sued Hinkley's psychiatrist, claiming that the psychiatrist owed a duty to warn of Hinckley's potential danger to them. The federal district court in Colorado held that the therapist does not owe a duty to the world at large and, absent specific threats to a readily identifiable victim, the therapist cannot be held liable for injuries inflicted on third persons. It is fundamental that the duty owed be measured by the foreseeability of the risk and whether the danger created is sufficiently large to embrace the specific harm.27
Similarly, in Fraser v. United States of America,28 an outpatient with a history of delusions and schizophrenia, and who was known by his psychotherapists to carry guns and have violent ideations, attacked and killed his former supervisor. The executrix of the Physicians as Gatekeepers For Society deceased's estate sued the psychotherapist for failure to warn. The Connecticut Supreme Court held that the psychotherapist had no duty to exercise control to prevent the patient from inflicting harm on the victim or to warn the victim because the victim was not readily identifiable or within a foreseeable class of victims. The court based its conclusion on four reasons: 1) court decisions that define negligence do not impose a duty to those who are not identifiable victims, 2) there is no duty to warn unidentifiable persons, 3) policy reasons inherent in the psychotherapeutic relationship and in the due process rights of mental patients advise against imposing expansive duties to exercise control over such patients, and 4) courts in other jurisdictions overwhelmingly decline to extend any duty to warn of harm to unidentifiable third persons.
Several courts considered the foreseeability component of the duty to warn and concluded that therapists have an affirmative duty to investigate the possibility of dangerousness. For instance, in Bradley Center Inc. v. Wessner,29 the private hospital was held liable for failing to pursue additional efforts to perform a more thorough evaluation of deterioration of the mental health condition of a patient who, while released on a one-day pass, murdered his ex-wife.30 Similarly, a California court decided that the duty to warn is forever bound with the diagnostic function and, therefore, "the duty imposed on the therapist ... is first to diagnose or recognize the danger posed by the patient …"31 Under these particular cases, the medical professional has a duty to evaluate and determine the danger that a patient may pose.
Although the above-mentioned cases involve the duties of therapists, one could argue that a court would not stretch very far in applying the same reasoning and principles to all medical professionals who have a confidential patient relationship with a potentially dangerous individual. In fact, recent case law demonstrates that some courts view physicians and other health care professionals as being responsible for predicting driver safety while others have determined that the physician owes no duty to the general public.
In April 2003, a California Superior Court jury ordered psychiatrist Cecil Bradley to pay $8.6 million to Charles Mennell, a man who was left severely injured when the driver of a motor vehicle, Bryan Christopher Vaca, ran him over.32 Dr. Bradley treated Mr. Vaca for five years for his impulses to hurt people with his pickup truck.33 Dr. Bradley did not report his patient's potential danger to the California Department of Motor Vehicles.34 California has a mandatory reporting law that requires physicians to report all patients diagnosed with "disorders characterized by lapses of consciousness."35 The law specifies that the definition of "lapses of consciousness" includes Alzheimer's disease and those related disorders that are severe enough to be likely to impair a person's ability to operate a motor vehicle.36 A physician who fails to report such a patient may be held liable for damages.37 The jury determined that Dr. Bradley failed to comply with the state regulations when he did not report Mr. Vaca's propensity for potentially dangerous driving.38 According to trial documents, Mr. Vaca was obsessed with hurting and/or killing others with his motor vehicle.39 He also had a history of psychiatric troubles and substance abuse.40 The victim's attorney, Colleen Duffy Smith, argued that since Dr. Bradley had a close professional relationship with the driver, he was "the person at the top of the pyramid with close access to his patient."41 The defense attorney, Arthur Curley, commented that the verdict distorted the state reporting requirements and it will have negative consequences by forcing psychiatrists to report patients indiscriminately just to protect themselves from litigation.42
On April 2, 2003, the Supreme Court of Iowa decided that a physician had no duty to an injured third party motorist when his patient, the driver of the other vehicle, had a seizure, lost control of her vehicle, and collided with the third party motorist.43 The physician, Dr. Mark Mahoney, treated the driver, Kathleen Oxley, for seizure disorders and provided favorable documentation to the Iowa Department of Transportation to allow Oxley to obtain an operator's permit.44 The plaintiff alleged that Dr. Mahoney's acts created an unreasonable risk to persons sharing the public highways.45 The court held that a medical doctor does not owe a duty to members of the general public with respect to the treatment of an individual patient.46 Iowa is one of several states that has a permissive reporting law for physicians to report the identity of a person diagnosed as having a physical or mental condition that would render the person physically or mentally incompetent to operate a motor vehicle in a safe manner.47 The court concluded that "[in] order to curtail liability, physicians may be in their patient's best interest."48 The court was reluctant to disrupt the physician-patient relationship that would arise from recognizing liability for the physician.49
Mandatory Reporting Laws
States continue to struggle with how to balance the general public's safety while also protecting individuals' rights to keep their medical information private. Some states have recognized the greater importance of public safety over the protection of a patient's confidentiality by imposing mandatory reporting laws. For example, California and Oregon have laws that make it mandatory for a physician to report potentially unsafe drivers to the department of motor vehicles.50
The Health & Safety Code (Section 103900) of California obligates a physician to file a report to the county health department upon diagnosis of a patient with a disorder characterized by lapses in consciousness, including Alzheimer's disease or a related disorder, that is progressed to the point that the patient's driving ability is impaired.51 The county health department then forwards the information to the Department of Motor Vehicles.52 The Department conducts a computer search to locate the name of the person and investigate his or her driving record.53 The Department sends a letter and a "Driver Medical Evaluation" form, which authorizes the physician to release medical information about the severity of the dementia to the Department.54 The person must complete the form and allow the release of the medical information or the driving privileges of the person are suspended.55
After the California Department of Motor Vehicles receives the medical information, a Driver Safety hearing officer reviews it.56 If the officer determines that the dementia of the driver is in the early stages, the driver is scheduled for a re-examination with the Department of Motor Vehicles.57 However, if the medical records reveal that the dementia is progressed to the moderate or severe stages, the driving privileges of the person are revoked.58
The re-examination of the driver involves three parts: 1) a visual test, 2) a written test, and 3) an interview.59 First, the visual test must demonstrate that the driver has corrected visual acuity of greater than 20/200 in the "good" eye (without the use of optical devices attached to eyeglasses).60 Second, the driver is given the standard Department of Motor Vehicle written examination as the written portion of the re-evaluation.61 The written portion demonstrates the person's knowledge of the rules of the road as well as the mental competency and cognitive skills of the person.62 Third, the interview portion of the re-examination is done in person.63 It centers on the ability of the person to coherently answer questions about his or her medical history, medical treatment, driving record, need to drive, daily routine, need for assistance with daily activities, and other pertinent information.64 Those who do not perform well during the visual, written or interview portions of the re-examination have their driving privileges suspended.65 The individuals who do well up to this point are then given a road test.66
The road test involves examining areas in which the driver with mild dementia may be challenged.67 This includes asking the person to find his or her own car, giving commands in a series (take a left out of the parking lot, turn right at the light, then turn left at the next comer) instead of simple one-step instructions, and extending the examination for a longer period of time to test for fatigue of the driver.68 After the driver is successful in this portion of the re-examination, his or her license to drive is not suspended or revoked.69 However, the Department may place restrictions on the license such as no highway driving, no driving beyond dusk, or driving allowed only within a specific radius from home.70 The Department may request another reexamination in six to twelve months, at which time the entire process starts again.71 The California Department of Motor Vehicles has separate requirements and guidelines for drivers with other disorders such as stroke, head injury and epilepsy.
Additionally, as of January 2001, California Senate Bill 335 (SB 335) mandates the Department of Motor Vehicles to perform a re-examination whenever it receives a complaint filed by the driver's spouse or a family member within three generations of blood relationship.72 The reporting family member need not disclose his or her name but must reveal his or her relationship.73 The family member must have personal observations, personal knowledge of traffic infractions, or evidence of a physical or medical condition that would impair driving.74 The difference is that the name of the family member may remain confidential, whereas the name of the physician, who is a mandated reporter under California law, may be disclosed. However, California's Health and Safety Code 103900 shields the physician from any civil or criminal liability to any patient.75
In May 2003, Oregon began implementing a similar law. Currently, over ten counties are affected. The last phase will be implemented on June 1, 2004, when all physicians and health care providers who practice anywhere in Oregon must report any patient who has severe and uncontrollable cognitive or functional impairments that affect the patient's ability to safely operate a motor vehicle to the Department of Motor Vehicles.76 Cognitive and functional impairments include those conditions that cannot be corrected by medication, therapy or surgery or by driving device or technique.77 Cognitive impairments include problems with attention, judgment, problem solving, reaction time, planning and sequencing, impulsivity, visio-spatial, memory, lapses of consciousness or control.78 Functional impairments include problems with vision, peripheral sensation, strength, flexibility, motor planning and coordination.79 Medical conditions include diseases such as cataracts, Parkinson's Disease or Alzheimer's Disease.80 Medical impairments include symptoms that result from conditions, such as impaired vision, impaired cognition and impaired motor skills.81 Additionally, the health care provider may voluntarily report a driver who may have a mental or physical condition that affects his or her ability to safely operate a motor vehicle.82
When a health care provider reports an individual to the Department of Motor Vehicles, that person's license is suspended. During suspension, the person must contact the Department of Motor Vehicles to request an opportunity to be re-tested.83 The re-test involves examinations for visual acuity, knowledge, and driving ability.84 The individual's driver's license remains suspended until he or she performs re-testing and demonstrates that he or she is competent to drive safely.85
Pennsylvania requires physicians to report certain conditions that interfere with the driver's ability to control and safely operate a motor vehicle to the Department of Motor Vehicles. According to Title 75 Section 1518 of the Pennsylvania Vehicle Code, all physicians and other persons authorized to diagnose or treat disorders and disabilities must report to PennDOT any patient over fifteen years of age who is diagnosed as having a condition that could impair his or her ability to drive safely.86 Conditions that must be reported include visual impairment with acuity of less than 20/70 (with correction); seizure disorders (such as epilepsy); unstable (brittle) diabetes or hypoglycemia; hypertension; cerebral vascular insufficiency; periodic loss of consciousness, attention or awareness (from whatever cause); loss or impairment of the use of a foot, leg, finger, thumb, hand or arm; rheumatic arthritic, orthopedic, muscular or neuromuscular disease; mental or emotional disorders; use of any drug or substance, including alcohol, known to impair skill or functions, regardless of whether the drug is medically prescribed; mental deficiency or mental retardation; and any other condition which, in the opinion of the physician, could interfere with the ability to control and safely operate a motor vehicle.87
The law mandates that the physician report the person and the condition to the PennDOT within ten days of the health care provider's contact with the individual.88 The report of the physician remains confidential and is solely used by the PennDOT to determine the competency of any person to operate a motor vehicle in Pennsylvania.89 The law makes it clear that the health care provider's duty to report the information to the PennDOT supersedes any patient-physician confidentiality.90 No report shall be used as evidence in any civil or criminal trial, except in any proceeding related to the determination of incompetency.91 The health care provider is protected from civil or criminal liability.92 Moreover, civil or criminal liability may be imposed on the health care provider if he or she fails to report to the PennDOT any condition that impairs the driving ability of an individual.93
Each state has its own specific laws that regulate drivers' licenses for people with epilepsy. The state laws limit or restrict licenses for drivers who are at the greatest risk for having seizures while driving. Six states, including California, Delaware, Nevada, New Jersey, Oregon, Pennsylvania, and Vermont, mandate that physicians report a patient who has epilepsy to the respective department of motor vehicles of that state.94 Of those states, Delaware and Pennsylvania may impose liability to the physician for recommending that the patient continue to drive.95 Physicians are immune from liability in 31 states if they recommend that the person with epilepsy continue to drive.96 In states where physicians help determine whether the patient with epilepsy is medically able to drive, six states including Colorado, Delaware, Idaho, Indiana, Montana, and Ohio permit liability to be imposed on the physician for his or her determination of driving ability.97
It is interesting to note that recently, between the years 1988 and 2000, states generally began to liberalize their restrictions on driving for patients who have seizures.98 The trend is toward allowing shorter minimum seizure-free requirements and more flexible systems to monitor the person's driver's license restrictions.99 This more relaxed attitude may reflect society's attempt to limit the concept of ‘disability' that is associated with epilepsy.100
A study presented on April 3, 2003 to the American Academy of Neurology revealed that when physicians are required by law to report their patients' epileptic seizures to the state, it takes a negative toll on the physician-patient relationship.101 Physicians have been concerned for years that mandatory reporting of seizures negatively impacts the physician-patient relationship.102 The study demonstrates that patients have the same concern.103 It is more likely that patients with epilepsy will conceal their seizure episodes from their doctors, fearing the loss of their privileges to drive.104 The study revealed that 8.6 percent of the respondents did not disclose such information and 19 percent considered concealing the information.105 Moreover, thirteen percent reported that the mandatory reporting law created an adverse impact on their relationship with their physicians.106
Confidentiality Laws
Several states permit, but not require, a physician to report impaired drivers.107 In those states that have merely permissive laws, physicians may be subjected to legal liability if they decide to report or not report a patient who may be at risk for impaired driving ability.108 In the absence of a mandatory reporting law, physicians are at risk for potential liability when they disclose medical information to the department of motor vehicles without their patients' consent.109 On the one hand, physicians and other health care providers may be liable for failing to report potentially dangerous drivers.110 On the other hand, confidentiality statutes prohibit physicians from releasing m without the explicit authorization from the individual.
Confidentiality of medical information is protected and guarded as a matter of law. On April 14, 2003, the Health Insurance Portability and Accountability Act (HIPAA) took effect, creating the first federal law protecting the privacy of health information.111 This federal law prohibits the disclosure of protected health information by "covered entities", which includes most health care providers.112 HIPAA has wide-sweeping effects that impact the parameters of who, what, when, where and how protected health information may be released by health care providers to third parties. Generally, prior to the disclosure of health information, the health care provider must obtain an authorization from the patient that clearly indicates specific core elements, including: 1) a specific description of the information to be disclosed, 2) the purposes of the disclosure, 3) the identity of the person authorized who is to make the disclosure, 4) the identity of the person to whom the covered entity may make the disclosure, 5) expiration or time limit of the authorization, 6) a statement of the person's right to revoke the authorization, 7) the signature of the person authorizing the disclosure (the patient or the legal representative), and 8) the date the authorization was signed.113 Clearly, the purpose of the legislation is to provide stringent protection of patients' privacy rights.
However, although HIPAA protects the privacy of health information, Congress recognized the overwhelming need to protect public safety by allowing the physician to disclose protected health information under HIPAA when public safety is at risk.114 The legislature certainly did not intend for the confidential nature of an individual's medical records to supercede the welfare of the general public. If it is "necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public" and the disclosure is made to "a person or persons reasonably able to prevent or lessen the threat," the disclosure of the health information is permitted.115 Several states have similar laws that allow the disclosure of confidential medical information to the motor vehicle department.116 Many offer immunity for the physician from civil or criminal liability.117
Conclusion
Confidentiality is considered the foundation of the patient-physician relationship because it allows individuals to discuss very sensitive issues openly with the health care provider, allowing the provider to administer proper medical care.118 A patient may be reluctant to report signs and symptoms of medical conditions to the physician without the security of knowing that the information is protected from disclosure to a third party. In fact, mandatory reporting laws may actually interfere with the physician-patient relationship by motivating patients to withhold information that is crucial to diagnosis and treatment.119 Additionally, the physician may be compelled to report more information than may be needed to protect the public in an effort to shield the physician from liability.
But public safety is a concern as the population ages and more drivers who have impairments continue to drive. The balance between public safety and private health is vital to maintaining safe roadways as well as sustaining the intimacy of the physician-patient relationship. Recognizing this critical task imposed on physicians, the American Medical Association (AMA) recently published guidelines to assist physicians in being gatekeepers for society.120 The AMA suggests that the physician assess the patient's impairments that might adversely affect driving abilities by observing the patient during examination, watching for poor hygiene and grooming, difficulty walking or getting into and out of chairs, difficulty with visual tasks, attention, memory and comprehension.121 Additionally, the physician should be mindful of any medical condition, medication, or symptom that can impair driving skills.122 Before reporting to the department of motor vehicles, the physician should have a candid discussion with the patient and the family about the risks of driving.123 The physician should also disclose and explain to the patient that he or she has a responsibility to report individuals who have impairments that prevent them from driving safely.124 If a formal assessment of function is warranted, the patient should be referred to a Driving Rehabilitation Specialist.125 "The physician's role is to report medical conditions that would impair safe driving as dictated by his or her state's mandatory reporting laws and standards of medical practice."126 Ultimately, the decision to revoke, suspend or limit a driver's license is made by the state's Department of Motor Vehicles.127
A driver's license is a status symbol for many individuals.128 Those who no longer are able to drive envy the freedom that motor vehicle drivers have to perform daily activities such as going to the grocery store, getting a haircut at a barber shop, having the early bird special at a favorite restaurant or even visiting the doctor.129 Without a driver's license, individuals must depend on other means of transportation. In a generation that values independence, this transition is difficult, but necessary. Due to the number of aging Americans, the Insurance Institute estimates by the year 2030, individuals 65 years of age and older will account for 25% of traffic deaths.130 Conceivably, if acceptable alterative methods of transportation are available, people may be less resistant to the transition and the physician's responsibility for public safety may be less burdensome, creating a win-win situation for everyone.
There is no easy solution to the conflict between the physician's concurrent duty to protect the privacy of medical records and the duty to disclose important medical information that may protect the public from harm. However, immunity from civil and criminal liability of the physician may encourage the proper balance of judgment in order to keep our roadways safe. In any event, in light of the statistics and the staggering amount of future impaired drivers, it is in society's best interest for the states to revisit their reporting statutes and reevaluate the duties imposed on health care providers.
2 Report 102 of the Council on Ethical and Judicial Affairs of the American Medical Association (CEJA), Dec. 1999, www.ama-assn.org/ama/pubcategory/5494.htm#199 (accessed July 26, 2003).
3 Health Insurance Portability and Accountability Act, 45 CFR.
4 CBS NEWS.com July 18, 2003, http://www.cbsnews.com/stories/2003/0716/national/main563636.shtml.
5 amednews.com, May 15, 2000, http://www.ama-assn.org/sci-pubs/amnews/amm-00/edsa0515.htm.
6 Id.
8 Id.
9 Id.
10 Id. People younger than 25 years old have the highest motor vehicle deaths per 100,000 people.
11 Id.
12 U.S. Department of Transportation, National Highway Traffic Safety Administration, Traffic Safety Facts, DOT HS 808 955, 1998.
13 American College of Physicians, Ethics case study Dealing with older, impaired drivers, http://www.acponline.org/journalnews/apr00/dealing.htm, accessed August 3, 2003.
14 Id.
15 Id.
16 Id.
17 U.S. Dept. of Transportation, National Highway Traffic and Safety Administration, USDOT Releases 2002 Highway Fatality Statistics, July 17, 2003, http://www.nhtsa.dot.gov/nhtsa/announce/press/pressdisplay.cfm?year-2003&filename=pr3.
18 MADD, General Statistics, http://www.madd.org/stats/printable/0.1060.1789.00.html.
19 Id.
20 Id.
21 Id.
22 Tarasoff v. Regents of the University of California, 17 Cal. 3d425, 131 Cal. Rptr. 14, 551 .2d 334 (1976).
23 Tarasoff, 17 Cal. 3d at 441-42.
24 Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980).
25 Id. at 752-756.
26 Brady v. Hopper, 570 F. Supp. 1333 (D. Colo. 1983).
27 570 F. Supp. at 1338.
28 Fraser v. United States of America, 236 Conn. 625 (1996).
29 Bradley Center, Inc. v. Wessner, 161 Ga.App. 576, 287 S.E. 2d 716 (1982)
30 Bradley, 161 Ga. App. at 723.
31 Hedlund v. Superior Court of Orange County, 34 Cal. 3d 695, 669, P.2d 41, 45 (1983).
32 Mercury News, Howard Mintz, April 5, 2003, http://www.siliconvalley.com/mld/mercurynews/news/5568454.htm.
33 Id.
34 Id.
35 American Medical Association Physician's Guide to Assessing and Counseling Older Drivers, Chapter 8, State Licensing Requirements and Reporting Laws, accessed August 15, 2003, http://www.ama-assn.org/ama/pub/category/10791.html.
36 Id.
37 Id.
38 Mercury News, Howard Mintz, April 5, 2003, http://www.siliconvalley.com/mld/mercurynews/news/5568454.htm.
39 Id.
40 Id.
41 Id.
42 Id.
43 Schmidt v. Mahoney, 659 N.W.2d 552 (April 2, 2003).
44 Id. at 552.
45 Id.
46 Id.
47 American Medical Association Physician's Guide to Assessing and Counseling Older Drivers, Chapter 8, State Licensing Requirements and Reporting Laws, accessed August 15, 2003, http://www.ama-assn.org/ama/pub/category/10791.html.
48 Schmidt at 555.
49 Id.
50 National Highway Traffic Safety Administration, Family and Friends Concerned About an Older Driver, final report DOT 809 307, August 2001, www.nhtsa.dot.gov/people/injury/olddrive/FamilynFriends.htm.
51 Family Caregiver Alliance Fact Sheet: Dementia, Driving & California State Law, http://www.caregiver.org/factsheets/dementia-drivingC.html.
52 Id.
53 Id.
54 Id.
55 Id.
56 Id.
57 Family Caregiver Alliance Fact Sheet: Dementia, Driving & California State Law, http://www.caregiver.org/factsheets/dementia-drivingC.html.
58 Id.
59 Id.
60 Id.
61 Id.
62 Id.
63 Family Caregiver Alliance Fact Sheet: Dementia, Driving & California State Law, http://www.caregiver.org/factsheets/dementia-drivingC.html.
64 Id.
65 Id.
66 Id.
67 Id.
68 Id.
69 Family Caregiver Alliance Fact Sheet: Dementia, Driving & California State Law, http://www.caregiver.org/factsheets/dementia-drivingC.html.
70 Id.
71 Id.
72 Id.
73 Id.
74 Id.
75 California Department of Motor Vehicles, Health and Safety Code, Reporting Disorders Characterized by Lapses in Consciousness, section 103900, http://www.dmv.ca.gov/pubs/vctop/appndxa/hlthsaf/hs103900.htm.
76 Oregon Secretary of State, Oregon State Archives, Department of Transportation, Driver and Motor Vehicle Services Division, Medical Certification Program, http://arcweb.sos.state.or.usrulesOARS_700/OAR_735/735_074.html.
77 Oregon Department of Transportation, Medically at-risk Driver Program January 23, 2003, http://www.odot.state.or.uscommnews.medicalrulesfaq.htm.
78 Id.
79 Id.
80 Id.
81 Id.
82 Oregon Secretary of State, Oregon State Archives, Department of Transportation, Driver and Motor Vehicle Services Division, Medical Certification Program, http://arcweb.sos.state.or.usrulesOARS_700/OAR_735/735_074.html.
83 Oregon Department of Transportation, Medically at-risk Driver Program January 23, 2003, http://www.odot.state.or.uscommnews.medicalrulesfaq.htm.
84 Id.
85 Id.
86 University of Pennsylvania Health System, Office of Legal Affairs, A Guide to Legal Issues in Health Care, accessed July 24, 2003, http://www.uphs.upenn.edu/legalidrr.html.
87 Id.
88 Id.
89 Id.
90 Id.
91 Pennsylvania Vehicle Code, Title 75 Section 1518.
92 University of Pennsylvania Health System, Office of Legal Affairs, A Guide to Legal Issues in Health Care, accessed July 24, 2003, http://www.uphs.upenn.edu/legalidrr.html.
93 Id.
94 Gregory L. Krauss, Lorraine Ampaw, and Allan Krumholz. A., Individual state driving restrictions for people with epilepsy in the US, Neurology, vol. 57, 1780-1785, November, 2001.
95 Id. at 1782.
96 Id. at 1783.
97 Id.
98 Id.
99 Id at 1783-1784.
100 Id. at 1784.
101 Kathleen Doheny, Study: Mandatory Reporting of Seizures, Backfires, accessed August 10, 2003, http://www.hon.ch/News/HSN512472.html; reporting results of a study done by Dr. Kamala M. Rodrigues, a neurologist who polled 403 patients at Stanford University's epilepsy clinic.
103 Id.
104 Id.
105 Id.
106 Id.
107 American Medical Association (Public Health) Physician's Guide to Assessing and Counseling Older Drivers, accessed August 14, 2003, http://www.ama-assn.org/ama/pub/category/10791.html.
108 Id.
109 Id.
110 See discussion, supra, under sections Tarasoff v. The Reagents of the University of California and Cases After Tarasoff.
111 45 C.F.R. §§160 and 164.
112 45 C.F.R. §§160.102, 160.103, 164.104 and 164.500.
113 45 C.F.R. §§164.502(a) and 164.508.
114 45 C.F.R. § 164.512(j).
115 Id.
116 American Medical Association Physician's Guide to Assessing and Counseling Older Drivers, Chapter 8, State Licensing Requirements and Reporting Laws, accessed August 15, 2003, http://www.ama-assn.org/ama/pub/category/10791.html.
117 Id.
118 American Medical Association Council on Ethical and Judicial Affairs Report on Impaired Drivers, December 1999 Ethical and Judicial Affairs Report, Herbert Rakatansky, MD, Chair, http://www.nhtsa.dot.gov/people/injury/olddrive/modeldriver/3_app_f.htm.
119 Gregory L. Krauss, Lorraine Ampaw, and Allan Krumholz. A., Individual state driving restrictions for people with epilepsy in the US, Neurology, vol. 57, 1780-1785, November, 2001.
120 American Medical Association Physician's Guide to Assessing and Counseling Older Drivers, accessed August 15, 2003, http://www.ama-assn.org/ama/pub/category/10791.html.
121 Id. at 25.
122 Id.
123 Id. at 20.
124 Id.
125 Id. at 53.
126 American Medical Association Physician's Guide to Assessing and Counseling Older Drivers, at 20, Figure 1.2, accessed August 15, 2003, http://www.ama-assn.org/ama/pub/category/10791.html.
127 Id.
128 USA Today, For Older Drivers, ‘the options are terrible', Section A, page 2, August 7, 2003.
129 Id.
130 Id.
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