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A Pittsburgh doctor cannot face third-party liability after his patient blacked out from a seizure while driving, killing two people, a split Pennsylvania Superior Court panel has ruled, even though the physician neglected to tell the Pennsylvania Department of Transportation that his patient suffered from seizures. In Hospodar v. Schick, President Judge Joseph A. Del Sole followed a line of cases that limit a doctor’s duty to a third party, namely to cases that involve communicable diseases. Del Sole based his opinion largely on the Pennsylvania Supreme Court’s decision in Witthoeft v. Kiskaddon, in which a doctor could not be held liable for an accident caused by a vision-impaired patient. “We find the matter before us analogous to the situation in Witthoeft,” Del Sole wrote. “As we are bound by the decisions of our Supreme Court, we find no third-party liability exists against appellants.” But in his dissent, Judge Patrick Tamilia said Hospodar was distinguishable because the patient had a history of accidents because of his medical condition. “Here, appellants knew or had reason to know that their patient, Jack Smith, suffered from seizure disorder and had sustained two prior automobile accidents as a result of his propensity to ‘black out,’” Tamilia said. Referring to Witthoeft, Del Sole said: “The Supreme Court rejected the estate’s position, holding that the Motor Vehicle Code does not create, explicitly or implicitly, a private cause of action against a physician for an accident caused by a patient because the physician failed to comply with the notification requirements of the code.” He argued that the physician’s liability found in the Supreme Court’s decision in DiMarco v. Lynch Homes-Chester County Inc. was due to the public interest in preventing the spread of disease. In DiMarco, the physician gave a patient with hepatitis B erroneous advice about her ability to spread the disease. Del Sole said, “The Supreme Court [in DiMarco] relied heavily on the nature of the disorder at issue, holding that in the case of a communicable disease, the information provided by the physician is of great importance and a duty to accurately advise of the illness is reasonable; however, where the condition is not communicable, the same conclusion cannot necessarily be reached.” In Hospodar, not only did the physician, Mark E. Hospodar of Pittsburgh Neurology Associates, neglect to inform PennDOT, but he neglected to diagnose or medicate his patient, Jack Smith, for a documented history of seizures, according to the opinion. In his dissent, Tamilia said that Allegheny County Common Pleas Court Judge Alan S. Penkower was correct in denying the objections in the form of a demurrer by Hospodar and Pittsburgh Neurology Associates. “Although I would decline to find a duty in every instance involving a physician, his patient and a third party, I believe the imposition of liability is appropriate in this situation, where the two victims in a stopped vehicle were killed as a result of being violently struck by a driver whose treating physician was aware the patient-driver had a well-documented history of seizures and yet failed to diagnose or properly report the driver’s condition to PennDOT,” Tamilia said. The Hospodar case arose from two separate medical malpractice actions filed on behalf of the estates of Patricia A. Schick and Sherry A. Zeis. Schick and Zeis were killed when Smith’s car hit their stopped vehicle during one of his blackouts. Del Sole said that just six months prior to the accident, Hospodar filled out a PennDOT form that included the question, “From a medical standpoint only, do you consider [Jack Smith] physically and/or mentally competent to operate a motor vehicle.” According to the opinion, Hospodar answered, “I do not know.” Shortly after filling out that form, Hospodar participated in an oral interview with PennDOT at which time he advised its representatives that it was safe for Smith to operate a motor vehicle. Under Chapter 83 of the Pennsylvania Code, the Medical Advisory Board has regulated that a person who has a seizure disorder will not be qualified to drive unless a physician reports that the person has been free from seizures for at least six months preceding, and a person suffering from epilepsy must be free from seizures for at least one year preceding. According to the opinion, Smith was never diagnosed with a seizure disorder by Hospodar and the last blackout episode that resulted in a crash happened over two years prior to the accident that killed Schick and Zeis. Smith lost his license after an accident prior to the one that brought about this case. Tamilia said using Witthoeft as the reasoning in Hospodar was not a fair comparison. In Witthoeft, the driver was a patient who had poor vision that resulted in an accident that killed a bicyclist, according to the opinion. It was not foreseeable, however, that her vision would be the cause of an accident because it had never done so before, he said. Del Sole said the attorneys for Hospodar argued that Schick and Zeis “were not foreseeable victims of Dr. Hospodar’s actions or inactions.” Del Sole agreed, and reversed the trial court’s ruling to dismiss Hospodar’s preliminary objections to the complaint. Tamilia disagreed and said it was clearly Hospodar’s actions that resulted in the deaths of Schick and Zeis. “[The physician and Pittsburgh Neurology Associates] failed to provide Smith with adequate treatment for his condition, did not advise him to refrain from driving, and did not properly notify PennDOT that Smith was not physically competent to operate a motor vehicle,” Tamilia said. The attorneys for both parties could not be reached for comment. Del Sole was joined by Judge Michael T. Joyce.

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