What Is My Legal Obligation if I Allow an Intoxicated Patient to Drive Home?

Carolyn Buppert, NP, JD


August 15, 2008


If I know by exam or testing that a patient is intoxicated and drove to the office, what is my legal obligation if the patient intends to drive home?

Response From the Expert


Carolyn Buppert, NP, JD
Attorney, Law Office of Carolyn Buppert, PC, Bethesda, Maryland


Your legal obligation, in these circumstances, is to tell the patient not to drive. Theoretically, it is the patient's responsibility to arrange alternative transportation, but the impaired individual may fail to do so. Practically, then, the clinician needs to assist the patient in arranging to get home by some means other than driving. The alternatives include a friend or relative of the patient (who is not intoxicated) or a taxi. If all else fails, call the police and inform them of the situation. If you don't take these precautions, you could be sued, not only by the patient, but by anyone he or she injures.

The legal basis for this advice stems from a recent case with a different set of facts but the same principle. In that case a physician in Massachusetts, Dr. Florio, had prescribed oxycodone, metolazone, prednisone, tamsulosin, potassium, paroxetine, oxazepam, and furosemide to a man in his seventies who had advanced metastatic lung cancer. The man, Mr. Sacca, took his medications as ordered, lost consciousness when driving, and hit and killed a 10-year-old boy. The boy's mother sued Dr. Florio, claiming negligence for failing to warn Mr. Sacca not to drive while on medications known to cause drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. A trial court awarded summary judgment to Dr. Florio, saying the doctor had no duty to the boy. In December 2007, the Supreme Court of Massachusetts reversed the trial court, allowing the boy's case against Dr. Florio to proceed.

The Supreme Court held that Dr. Florio owed a duty to all those who could be put at risk by his failure to warn Mr. Sacca of the danger of driving after taking the prescribed medications. This case was brought on the legal theory of common negligence, not medical malpractice. In order to prove negligence, the injured party must prove 3 elements: (1) that the other person failed to use due care (the care which an ordinary, reasonable, and prudent person would have exercised under similar circumstances); (2) that as a result of the defendant's negligence, the plaintiff was injured; and (3) that the injured party sustained damages.

Outside the medical arena, in a variety of situations, courts have held individuals liable for negligence when they had no relationship with the injured party. A liquor store owner was liable when the store sold alcohol to a minor who drank and then struck a cyclist. A bar was held liable for the death of a motorist killed by a driver who became intoxicated at the bar.

The clinician who diagnoses a patient as intoxicated but fails to warn the patient of the dangers of driving may face liability not only for common negligence (if the intoxicated patient injures someone else) but also for medical malpractice. Medical malpractice has 4 elements: (1) a duty of care (to the patient); (2) a breach of the standard of care; (3) an injury; and (4) proximal cause (that the breach of the standard of care caused the injury).

If you document that you warned the patient not to drive and made reasonable efforts to arrange alternative transportation for the patient, you will have met the standard of care, for both common negligence and medical malpractice.


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