By Dan Schulte, J.D.
MDA Legal Counsel
From the April 2013 issue of the Journal
Question: From time to time patients come to the office under the influence of anti-anxiety medication (taken in anticipation of dental treatment or for other reasons) or other medications prescribed by their physician. These patients often drive themselves to our office. We feel the effects of these medications render them incapable of safely driving and that being on the road in this condition they are a danger to themselves and others.
Am I liable in this situation if such a patient leaves my office and injures himself or someone else in a car accident? Do I have a legal obligation to keep a patient who I think is impaired from driving or to give him a ride home (either using my staff or hiring a cab)?
Answer: The only legal obligation you owe your patient in this situation is to warn him of the danger to himself and others if he drives in an impaired condition. There is no legal duty to keep an impaired patient from driving. So long as you have adequately warned the patient (which you should document in writing and maintain in the patient’s record) you would not be liable for injuries occurring as a result of the impaired patient driving from your office.
However, under the circumstances you describe it is difficult not to feel compelled to do something for safety reasons. Unfortunately, the choices available to you may not be satisfactory, since ultimately you cannot compel a patient to follow your warnings or to accept your help.
If you find yourself in a situation where you believe the patient is a danger to himself or others and will not obey your warnings, the best practice would be to ask the patient if there is someone who can be called to come and pick him up, call a cab or other car service to deliver the patient home or, if you feel the situation is serious enough, you might call the police.
To be prepared for this situation before it arises consider amending your Notice of Privacy Practices by (1) allowing you to disclose a patient’s condition to a designated driver; and (2) insisting that each patient designate the name and telephone number of a designated driver on a form to be kept in the patient’s record just in case.
When scheduling patients for appointments (especially appointments in which you suspect the patient may be under the influence of anti-anxiety medication) you should ask if he will be under the influence of any anti-anxiety or other medication which will impair their ability to drive after the appointment safely. For those patients who indicate they will be under the influence, you should insist that they bring with them to the appointment a designated driver to be sure that they can leave your office and return home safely.
Finally, you could consider establishing an office policy to post in your office or otherwise make available to patients stating that if they show up for appointments impaired and without a designated driver you will refuse treatment, or call the driver the patient has designated, or call the police, etc.