Q: I do small hand surgeries in my office. I only use local anesthesia for these. The patient will generally then be in a soft dressing or a short splint. There will also be some numbness. I have not had any restrictions up until now as far as patients then driving themselves home, as would be the case if they had had sedation, as the cases I do in the ASU do. However, a friend says that she treats the situations the same because of the surgery itself. Would I be liable if the patient got into an accident?
A: A physician’s duty of care classically extends only to the individual with whom they have a doctor-patient relationship. However, there has been an increasing extension of liability to include third parties who are foreseeable (pedestrians and other drivers) to be injured by a patient who is impaired due to medical treatment and then drives.
Examples of this are a case from Massachusetts, in which an elderly man on multiple medications that could impede consciousness drove up onto the sidewalk and struck a child, and a case from Georgia in which a couple were injured when their car was struck by one driven by someone who had recently left a dialysis center and was still feeling woozy.
The legal rationale is essentially the same as that in cases in which a bar selling drinks or the host of a party serving drinks are liable if an inebriated patron or guest then drives and harms another person – the premise is that the person creating the impairment should be responsible to prevent the impaired person from then driving.
This is why you insist that patients who have had full sedation not drive directly afterwards. When they wake up they may be adequately clear-headed to deal with checking out of the office but not with the rough-and-tumble of traffic.
The cases in which doctors have been found to have a duty to third parties have so far been about situations in which the impairment was of consciousness. Following these, there would be no such limitation based on having just had a local anesthetic. After all, people drive after dental extractions done with Novocain.
However, your friend is raising a different issue: the use of the hand itself, which is integral to driving. Being in a new dressing that they have not yet gotten used to while also being residually numb could quite conceivably impair a person’s ability to respond to a situation on the road by quickly and effectively manipulating the wheel or a shift control.
The area of third party liability for physicians is evolving and you don’t want to be the test case. It would be prudent to follow your friend’s advice and have your patients get a lift or take a cab.
Dr. MedLaw, MD, JD, is a board certified radiology and a malpractice attorney.
