Praesel v. Johnson

• Decision Date: 23 June 1998
• Docket Number: No. 96-0584,96-0584
• Citation: 967 S.W.2d 391,41 Tex. Sup. Ct. J. 630
• Parties: 41 Tex. Sup. Ct. J. 630 Stan PRAESEL and Louise Herbert, Petitioners, v. Raymond JOHNSON, M.D., et al., Respondents.
• Court: Texas Supreme Court

Page 391

967 S.W.2d 391

41 Tex. Sup. Ct. J. 630

Stan PRAESEL and Louise Herbert, Petitioners, v. Raymond JOHNSON, M.D., et al., Respondents.

No. 96-0584.

Supreme Court of Texas.

Argued Nov. 5, 1997.

Decided April 14, 1998.

Rehearing Overruled June 23, 1998.

John "Lee" Arellano, Patrice M. Barron, Houston, for Petitioners.

Karinne McCullough, Marilyn Kulifay, Tina V. Snelling, Houston, for Respondents.

OWEN, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, HECHT, SPECTOR, BAKER, ABBOTT, and HANKINSON, Justices, join.

We must decide in this case whether a physician owes a duty to third parties to warn an epileptic patient not to drive or to report the patient's condition to state authorities that govern the issuance of drivers' licenses. We conclude that we should not impose a duty that is owed to third parties and accordingly reverse the judgment of the court of appeals in part and render judgment that the plaintiffs take nothing.

I

Ronald Peterson, an epileptic, suffered a grand mal seizure while driving and broadsided a vehicle driven by Terri Lynn Praesel, who died from the injuries she sustained. Her husband andmother, Stan Praesel and Louise Herbert, brought this suit against three physicians who had treated Peterson, Drs. Raymond Johnson, Jr., Stephen Waller, and Hans Wendenburg, and against the Sadler Clinic and Doctor's Hospital where Peterson had been treated prior to the collision.

Dr. Johnson is board-certified in Family Practice and first saw Peterson approximately seven years before the accident that resulted in Terri Lynn Praesel's death. Peterson's medical history indicated that he had suffered from epileptic seizures since the age of nine but that for an extended length of time before his first consultation with Dr. Johnson, his seizures had been controlled with Dilantin and Phenobarbital. Johnson periodically checked the levels of medication in Peterson's bloodstream, which were within therapeutic ranges on each occasion, and Peterson experienced no seizure activity until May and June of 1986, approximately four and one-half years before the accident. Dr. Johnson admitted Peterson to a hospital at that time because of seizures and referred him to a neurologist, Dr. Stephen Waller. Dr. Johnson thereafter treated Peterson for a number of ailments and complaints, most of which were unrelated to epilepsy, and did not prescribe anticonvulsant medication for him. That was done by the two other physicians who are defendants in this case. However, Johnson did continue to monitor the Dilantin levels in Peterson's bloodstream.

Seven days before the collision with Praesel, Peterson saw Dr. Johnson and complained of flu-like symptoms. Johnson prescribed medication for that condition and again checked the serum level of Dilantin to ensure that it was within the therapeutic range. Dr. Johnson's records contain no indication that Peterson had experienced any seizures from June 1986 until the collision with Terri Lynn Praesel in 1991, and it is conceded that Dr. Johnson was not advised of any seizures after June 1986. However, Peterson had reported to another physician, Dr. Wendenburg, that he had a seizure in April 1990, ten months before the accident. Peterson did not volunteer that information to Dr. Johnson. One of the allegations of negligence in this case is that during the January 1991 consultation, Johnson failed to inquire of Peterson if there had been any seizures since his last visit.

Dr. Waller, the neurologist who was called in by Dr. Johnson when Peterson was hospitalized in 1986, treated Peterson's epilepsy until approximately one year before the collision. The hospital records indicate that in 1986, Dr. Waller instructed Peterson not to drive, although Peterson disputes that he was ever warned not to drive by any of the defendants in this case. By October 1989, Peterson had been seizure-free for over three years, and Dr. Waller asserts that he told Peterson there was "no reason either medically or legally why he [Peterson] should not be driving."

Dr. Waller prescribed Dilantin and Phenobarbital during the three years that he treated Peterson and was satisfied that the medication was taken as directed. Waller last saw Peterson in 1989, and last rendered medical services to Peterson in March 1990 when he authorized a refill of a prescription for Phenobarbital. Waller did not learn about the following month's seizure until after Terri Lynn Praesel's death.

Peterson began seeing a third physician, Dr. Wendenburg, approximately one year before the collision. Wendenburg, a neurosurgeon, treated Peterson for pain in his neck, shoulders and arm, and performed surgery to repair a ruptured disc. During the course of this treatment, Wendenburg ordered a myelogram, and Peterson suffered a seizure several days after the procedure. This was the April 1990 seizure that occurred ten months before the collision. Wendenburg contends that upon learning of the episode, he warned Peterson not to drive and advised him to confer with the physicians treating him for epilepsy. Peterson denies that any warning was given. Although Wendenburg primarily treated Peterson for problems unrelated to epilepsy, Wendenburg prescribed Phenobarbital and Dilantin for Peterson seven months before the collision.

Stan Praesel and Louise Herbert allege that each of the physicians was negligent in failing to warn Peterson that he should not drive, in failing to inquire of Peterson whether he had experienced seizures, and in failing to contact the state Medical Advisory Board regarding Peterson's condition pursuant to former Texas Revised Civil Statute article 6687b. ¹ The trial court granted summary judgments for the three physicians and the Sadler Clinic on all claims, holding that, as a matter of law, the physicians owed no duty to third parties. The plaintiffs nonsuited their claims against Doctor's Hospital and appealed the trial court's adverse determinations.

The court of appeals affirmed the summary judgments with respect to Johnson, Waller, and the Sadler Clinic, but reversed the summary judgment in favor of Wendenburg, with one justice dissenting. 925 S.W.2d 255. The court of appeals reasoned that the foreseeability of a traffic accident was significantly reduced if an epileptic patient had not experienced a seizure for more than three years. Id. at 258. The court concluded that neither Johnson nor Waller had reason to know that Peterson had suffered a seizure at any time during the three years before the collision with Terri Lynn Praesel. Accordingly, the court of appeals declined to impose a duty to third parties on Johnson, Waller or the Sadler Clinic. The court held, however, that Wendenburg had a duty because he had been informed of the 1990 seizure and had undertaken to treat Peterson for epilepsy by renewing prescriptions for anticonvulsant medication. Id. at 259-60. All parties filed applications for writ of error in this Court.

For the reasons we consider below, we agree with the court of appeals that Johnson, Waller and the Sadler Clinic owed no duty to third parties. However, the court of appeals erred in concluding that Wendenburg owed a duty to third parties to warn Peterson not to drive. We further hold that physicians do not owe a duty to third parties to report an epileptic's condition to state authorities that issue drivers' licenses.

II

Under the common law, a cause of action for negligence has three elements: 1) a legal duty; 2) a breach of that duty; and 3) damages proximately resulting from the breach. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The threshold question in this case is the existence of a duty, which is a question of law for the court. Id. The statutes and regulations that govern drivers who suffer from conditions such as epilepsy inform our decision regarding both a duty to warn a patient and a duty to report, and we first examine those enactments.

We have on at least one occasion looked to enactments by the Legislature to determine if a civil tort duty should be imposed. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985) (holding that a duty was owed to a rape victim based on a city ordinance that required property owners to secure the doors and windows of a vacant structure to prevent unauthorized entry). However, in most cases when we consider whether to utilize a statute for purposes of tort liability, a duty already exists under the common law, and we look to statutes to establish the specific standard of care. See generally Parrott v. Garcia, 436 S.W.2d 897, 899 (Tex.1969).

The Legislature has established a Medical Advisory Board to "assist the Department of Public Safety of the State of Texas in determining whether ... an applicant for a driver's license or a license holder is capable of safely operating a motor vehicle." TEX. HEALTH & SAFETY CODE § 12.092(b). The rules of the Department of Public Safety provide that persons "holding a Texas drivers license and having a physical or mental condition, the extent of which cannot be determined by the department," are referred by the Department to the Medical Advisory Board for further evaluation. 37 TEX. ADMIN. CODE § 15.58. The Department's rules contain guidelines for referral that include epileptic seizures:

(F) Neurological disorders. All applicants who have had an epileptic seizure within the past three years or are under the care of a physician for any other seizure, dizzy spell, or similar disorder.

Id. § 15.58(1)(F). The term "under the care of a physician" is defined as

having been referred to for treatment or having received treatment from a physician for the medical condition or conditions indicated in the past 12 months without a release from further treatment. This does not apply to a condition(s) diagnosed over 12 months ago and treatment consisting of only periodic visits for check up and maintenance.

Id. §...