Should physicians be required to report patients with epilepsy to states’ departments of motor vehicles if they believe that seizures or medication effects could affect their driving competency?
On the one hand, physicians have a responsibility to protect their patients’ confidentiality. On the other hand, physicians have a moral obligation to protect the health and safety of the public, who could potentially be harmed by drivers whose driving is impaired by their medical condition or its treatment.
Physician opinions on mandatory reporting vary. However, some states hold physicians legally liable if a patient with a medical condition known to the physician causes an accident that is fatal to others. In as much as one study found that 20% of respondents with active seizures continued to drive (Epilepsy Behav 2006;9:625-31), this issue is important and deserves further discussion.
The newly-published “American Academy of Neurology position statement on physician reporting of medical conditions that may affecting driving competence” (D. Baconet al, Neurology 2007;68:1174-7), underscores the conflict between safety risk and mandatory reporting. As stated in the publication, “The AAN supports optional reporting of individuals with medical conditions that may impact one’s ability to drive safely, especially in cases where public safety has already been compromised, or it is clear that the person no longer has the skills needed to drive safely.”
The opinions of physicians differ on this issue. L. K. Vogtle et al noted that “non neurologists have more restrictive beliefs regarding driving for persons with epilepsy” …and that they “demonstrated poor knowledge of state reporting requirements” (Epilepsy Behav 2007;10:55-62). The authors concluded “the data from this study support a significant effort to promote education of all physicians regarding state regulations and aspects of epilepsy related to driving.”
Bautista and Wludyka studied 308 respondents and found that nearly 20% of the respondents with poorly controlled seizures continued to drive (Epilepsy Behav 2006;9:625-31). They determined that “being employed was still an independent factor associated with driving, along with higher annual household income and absence of convulsions and waking seizures.”
In addition to being caught between their responsibilities to their patient and public safety, physicians are at legal risk if their patients are involved in serious accidents (Neurology Today, January 16, 2007).
To shed some light on the controversy, we asked two experts to share their opinions with us: Kimford Meador, MD, author of the editorial (Neurology 2007;68:1170 –1) that comments on the AAN position statement, and Attorney Michael E. Clark, vice chair of the American Bar Association’s Healthcare Litigation and Risk Management Interest Group. We asked these experts to share their opinions.
COMMENTS OF EXPERTS
Dr. Meador is presently the Melvin Greer Professor of Neurology at the University of Florida, where he serves as Director of Epilepsy Program and Director of Clinical Alzheimer Program. Dr. Meador graduated from Georgia Institute of Technology in Applied Biology and received his MD from Medical College of Georgia. After an internship at University of Virginia and service as an officer in Public Health Corps, he completed a residency in Neurology at Medical College of Georgia and a fellowship in Behavioral Neurology at University of Florida. Dr. Meador joined the faculty at Medical College of Georgia (1984-2002) where he became the Charbonnier Professor of Neurology. He was Chair of Neurology at Georgetown University (2002-2004) and joined the faculty of University of Florida in 2004. Dr. Meador has authored over 200 publications and serves on multiple journal editorial boards. His areas of research include cerebral lateralization, dementia, epilepsy, mechanisms of attention and memory, neglect syndrome, psychoimmunology, and the pharmacology and physiology of cognition.
Michael E. Clark is a partner at Hamel Bowers & Clark LLP in Houston, TX. Mr. Clark is the Chair of the Publications Committee for the ABA Health Law Section (and a Vice Chair of its Health Care Litigation and Risk Management Interest Group), and is also the Chair of the Criminal Laws Committee for the ABA Business Law Section. Mr. Clark is a Fellow of the American Bar Foundation and a Life Fellow of the Houston Bar Foundation. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and by the National Board of Trial Advocacy. Mr. Clark is AV® rated by Martindale Hubbell, and a member of the National Arbitration Forum Panel.
He has served as an Adjunct Professor at the University of Houston Law Center, where he has taught Antitrust and Health Care, and has co-taught Regulation of Biomedical Research, Civil Trial Advocacy, and Criminal Trial Advocacy. In addition to his JD from South Texas College of Law, Mr. Clark has obtained two LLM degrees, one in Taxation and the other in Health Law, from the University of Houston Law Center.
What is your opinion on optional versus mandatory reporting?
Michael Clark: While I am reluctant to recommend imposing additional, government-mandated duties on healthcare professionals, for various reasons it appears that a mandatory reporting system is more workable.When viewed from a liability standpoint, having a clearly-expressed and mandatory reporting obligation will establish a standard of conduct and a baseline for measuring a physician’s conduct. This is preferable to having a hazy or discretionary suggestion of when a physician may report. In addition, having a mandated duty will likely help physicians to realize the importance of becoming more knowledgeable about the issues.
An optional regime appears far more likely to put physicians in untenable situations that can only harm the physician-patient relationship. If, in the exercise of professional judgment, a physician reports a patient (because the patient’s condition poses a high risk to the general public if s/he continues to operate a motor vehicle without any conditions or restrictions), the patient could hold the physician responsible since the physician chose to report the patient.
Kim Meador: I don’t think that physicians should be obligated to report. I have seen no data that says it helps in any way. In states where reporting is mandated, there are no studies that prove that this has been effective. But there are data that indicate that reporting disrupts the patient-physician partnership. I do think physicians should talk to the patient about this and document the conversation in the charts. All of this should be within the context of state law.
For physicians, it is a medical, legal, and moral issue. But they don’t have an obligation to track down and find out what a patient is really doing. Physicians are not here to enforce the law. If you find that patients are still driving after you informed them not to drive, then you should be able to freely report them. But here is the next problem. If reporting is codified, and it is mandatory, then the patient might lie.
One irony as I see it is that these reporting laws are made by lawyers, who still maintain their client-laywer confidentiality. I find that to be hypocritical because the law expects us, as physicians, to compromise the patient-physician relationship.
Should there be more clear-cut guidelines that mandate reporting?
Michael Clark: Yes. Clearer guidelines will not only protect physicians from legal liability, but should also protect patients who suffer from such conditions from being unfairly treated since a large number of them should be allowed to drive since they can do so safely and without imposing broadly-based restrictions.
Kimford Meador: Patients whose medical condition compromises their driving pose a risk to themselves and the public. This is one of those situations where there is a conflict of civil liberties verses the public good. It is important that state laws are clear – and many set time limits such as 3 months to 2 years during which a patient has to have no seizures before being able to drive. The timelines are related to relative risks, but as the variance in state laws exhibit, the timelines are somewhat arbitrary.
Variance in state laws is a problem. A state that has a mandate makes the reporting issue pretty clear cut. Some states have no guidelines at all. When you have a state that has clear cut guidelines and a patient with uncontrolled epilepsy, then it has to be reported. However, in those states where the guidelines do not mandate reporting, the physician has a moral and legal responsibility to talk to the patient about their risks and the local driving laws. The physician should document this discussion. Overall, I think physicians have an obligation to advise their patient, and patients have an obligation to follow the law.
How should the issue of the non-compliant patient be handled?
Michael Clark: I advise lawyers who encounter problem clients who fail to follow their advice that the lawyers need to consider whether this is a client who they should continue to represent since, from a legal liability perspective, this is a major warning sign. While physicians face different duties and pressures (compared to lawyers) in their practices, this advice holds true since having a non-compliant patient can increase a physician’s legal liability. Physicians should determine the reasons for the patient’s non-compliance, such as whether he or she failed to understand what was required, or understood what was required but did not want to follow the instructions given. Patients in the latter category likely should be fast-tracked to the status of former patients. Finally, to ensure that such recalcitrant patients are not allowed to pose systemic harm, there should be a mechanism in place that physicians can report to when they have encountered such patients.
Kim Meador: If we are talking about non-compliance with regard to medication, that is one issue. Non-compliance in terms of driving against medical advice is another.
If a person is not taking medication as prescribed, they compromise their own health and possibly the safety of others if they drive. If a person’s medication is being changed because, for example, a woman is pregnant – this could trigger a seizure. Guidelines for a seizure free patient who is changing medications are unclear.
What about the patient who is non-compliant with medication, but is not having seizures? They didn’t break the state law by stopping their medication.But they do risk harming themselves and others if they have a seizure.
But one who is non-compliant with medication imposes the greatest risk which moves from civil liberties to public safety. We saw one study in which 54% of patients with epilepsy involved in an accident while driving were doing so illegally. If a person is non-compliant with respect to driving against medical advice after you told that person the law, then in my opinion, that’s a problem.And the patient should be reported.
What responsibility does the physician have with regard to patients with active seizures that are still driving?
Michael Clark: If the seizures are reasonably foreseeable in light of the patient’s known condition, then a physician’s obligations are heightened not only to protect the patient, but also the general public. Patients who are experiencing active seizures that may not be controllable pose such dangers and the (in)action of caregivers who had an opportunity to prevent a foreseeable bad result could be measured in a courtroom with a jury that is being asked to award damages. Physicians can expect that plaintiffs’ counsel will be arguing that they failed to adhere to the standard of care and should be held liable. This is again why it seems important for a clear legal standard to be mandated since juries can be emotionally swayed when they must decide liability or award damages when faced with bad outcomes.
Kimford Meador: Physician responsibility for reporting in California and some other states is mandated – although it is not clear in most states. However, what happens when you have specifically told a patient not to drive? If the patient continues to drive, and you know for a fact that the patient is driving, then you should report because it is a legal liability if you do not and can be dangerous to others.
Oftentimes you don’t know whether or not a patient is driving against medical advice. Most patients don’t tell. However, many live in places that do not have good public transportation. So if you ask about driving, they may well lie to you. The physician must document their conversation including information given by the patient. Otherwise the physician may be legally liable.
What happens in the case where a patient is non-compliant and a family member asks me to intervene? I will sit and talk with the patient and explain that driving while their seizures are not under control is very serious and if they have an accident and someone dies, that they can be charged with manslaughter. If after that conversation I find out that they are still driving, I would report them. Sometimes you can reason with a patient, and sometimes, you cannot, especially if the patient has a cognitive impairment. However, it should be noted that a physician’s knowledge of patient driving is almost entirely based on self-report and family reporting.
We are trying to balance these issues without evidence-based medicine. So we see variance across states. We would like the laws to be more uniform, but more actual data is needed to make laws that balance individual rights and public safety. Unfortunately, a great deal of health policy is not evidence-based.
Are you satisfied that the American Academy of Neurology is supporting stricter driving and reporting standards for public transportation drivers, professional driving services, or hazardous-material drivers, or should the AAN be taking a more active role?
Michael Clark: A more active role is needed for all of the reasons expressed above. Optional reporting regimes are impractical, unworkable, and generally a bad idea.
Kimford Meador: I think that these standards should be much stricter. Such individuals spend more time on the road and transport than other people. The standards should be even higher for those who pilot a plane, a school bus or a tanker full of gasoline or other dangerous materials. With these types of drivers, the public health risks are higher.