'I told him not to drive, but he did and he died'

January 1, 2007

No court is going to expect Dr. Surgery to force his patient to stay in the office.

In doing so, he routinely has patients, in their presurgical consultations, sign a form explaining that they understand they are not to drive following the procedure.

Two years ago, Dr. Surgery removed an atypical nevus from an otherwise healthy patient. The patient was given a prescription for oral sedatives to be taken prior to the surgery. The patient, prior to the procedure, told Dr. Surgery's receptionist that after his procedure a friend would drive him home. The receptionist recorded the friend's name.

After the procedure, the patient's friend never arrived to pick him up.

Dr. Surgery's registered nurse called the patient's wife who told the nurse no one was available to pick up the patient. The nurse attempted to persuade the patient to wait in the office for several hours, or until someone was available to drive him home. When it became clear that the patient was going to leave on his own, the nurse requested that he sign a form indicating that he understood that he should not drive and that he was leaving against medical advice. The patient signed the form, left the office and was ultimately injured in a car accident. He died several months later.

Dr. Surgery is bewildered when his now deceased patient's wife sues him for negligence and wrongful death. He is further traumatized when he determines that his malpractice carrier will only help him with the negligence claim. Dr. Surgery seeks legal advice in trying to determine if he did anything wrong. Did he?

'Breaches of care'

A nearly identical case was recently heard by the Arkansas Supreme Court. In that case the fact pattern was similar except the patient had undergone colonoscopy instead of an excision. In that case, the deceased patient's wife sued the defendant doctor, nurse and medical center, alleging that three duties of care had been breached: 1.) The doctor should not sedate a patient without a driver being present; 2.) The doctor should not have allowed the patient to leave; and 3.) The sedated patient should not have been allowed to drive.

The Arkansas Supreme Court found that in that case, the procedure went forward only because the patient told the receptionist that his friend would pick him up and drive him home after the procedure. It was not until after the procedure that any employee at the colonoscopy center learned that the patient intended to drive himself. The court noted that physicians and nurses must be allowed to rely on the information given to them by their patients, and in fact, patients must assume at least some responsibility for their care. It is too onerous a burden to require a physician or nurse to assume that a patient is providing incorrect information to them. It is also unreasonable to expect physicians or nurses to force patients not to leave the office.

Absolution

Dr. Surgery did have his patient sign a form explaining that he understood that he was not to drive following the procedure. When it became clear that the patient was going to leave on his own, the nurse did have the patient sign a form indicating that he was leaving against medical advice. The patient signed the form. Although other state courts might rule differently than the Arkansas court, no court is going to expect Dr. Surgery to force his patient to stay in the office. Documentation signed by the patient is going to be the key in absolving Dr. Surgery from liability.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mt. Sinai School of Medicine; and adjunct professor of law, Fordham Law School.