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Journal of Rehabilitation, April-June, 1995 by Barbara S. Handler, Jeanne Boland Patterson
Issues of Liability
Noting the emerging trend to hold rehabilitation professionals liable for injuries to third parties caused by patients with cognitive impairments, Antrim and Engum (1989) insisted that physicians must go beyond simply warning a survivor of brain injury who has difficulty with judgment and reasoning of the risks of driving. To be protected, physicians must base decisions about driving on validated tests such as the CBDI, rather than on their experience or intuition. In a survey of 50 states, Pidikiti and Novack (1988) found that in only 15 were physicians authorized to report driving impairment secondary to a disabling injury, and in only seven states were they required to report such impairment. They found that state licensing offices were frequently uninformed about the potential effects of disability (in general) on driving performance and about reporting requirements. They also surveyed 100 rehabilitation centers, of which only 36 provided on-site training for drivers with all types of disabilities. Pidikiti and Novack recommended the establishment of consistent guidelines across states for reporting, evaluating, and re-evaluating drivers with disabilities, especially brain injury, and protecting physicians who must breach patient confidentiality to make such reports.
Liability issues are not limited to physicians. In addressing the legal issues of a driver rehabilitation program, Pierce (1993) outlined the responsibilities of the facility, the physician, and the driving rehabilitation professional and cited cases in which all of these individuals and organizations have been found liable, when traffic accidents resulted from driving by individuals with disabilities.
Clearly the presence of seizure disorders following brain injury must influence driving decisions made by both the physician/rehabilitation team and by the survivor and his/her family. Although higher accident rates exist for individuals with seizures (Gastaut & Zifkin, 1987; Hansotia & Broste, 1991; Spudis, Penry, & Gibson, 1986), there is not unanimity among groups/researchers in establishing rules that restrict driving following the onset of seizures. Finding significantly higher accident rates for individuals who have seizures, Gastaut and Zifkin (1987) suggested that individuals should be seizure free for one year before driving. They suggested that these decisions be individualized and that there may be instances in which some type of temporary or limited driving permit would be appropriate.
In contrast, Hansotia and Broste (1991) found only slightly higher rates of accidents in 30,240 individuals with epilepsy or diabetes mellitus and did not recommend automatic restrictions. Spudis et al. (1986) also recommended flexible guidelines rather than rigid, arbitrary codes (e.g., a certain number of months seizure free). Model driving legislation proposed by the Epilepsy Foundation (1991) suggested that each case should be considered on an individual basis, with a recommended period of three seizure-free months before return to driving. They further recommended that (a) each state have a medical advisory board to formulate guidelines for the department of motor vehicles or other licensing body, (b) the established criteria should appear as regulations and guidelines rather than statutes, and (c) restricted licenses should be considered on a case-by-case basis.
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