*1
Appeal of G. Witthoeft. Supreme Pennsylvania. Court of
Argued Dec. 1997. July Decided *3 York, Lynn S. Witthoeft. Frankel, for Estate Mark David Yaninek, Yaninek, F. Stone, John Doyle A. Kathleen Craig C. Kiskaddon. for James Harrisburg, ZAPPALA, CAPPY, FLAHERTY, C.J., and Before NEWMAN, JJ. CASTILLE, NIGRO and
OPINION CAPPY, Justice. and significant to address a in order allocatur granted
We us is The issue before impression. of first far-reaching issue by suffered injuries liable for may be held physician whether by physi- the accident caused in automobile an party a third be ophthalmologist will an specifically, More patient. cian’s failed ophthalmologist where party liable to a third held of Trans- Department Pennsylvania patient his inform acuity, (PennDOT) of the patient’s portation driving while party third injured patient subsequently, herein, we affirm set forth For the reasons automobile? her Court. Superior the order of the A facts, brief recitation of the relevant as set forth in the complaint, necessary to understand and resolve this issue.1 6, 1993, decedent, July Witthoeft, On Appellant’s Lynn S. Road, bicycling on Walker Chambersburg, Pennsylvania. As Drive, Ms. Witthoeft approached Limekiln an automobile driv- en Ms. Helen Myers J. struck Ultimately, her. Ms. Witthoeft died from injuries sustained the accident.
Prior to the events of July Ms. Myers had been a regular patient of Appellee, Dr. James C. Kiskaddon. Dr. Kiskaddon is a licensed practice whose of medicine is limited to ophthalmology. Four prior months to the acci dent, in March Dr. Kiskaddon performed a visual exami nation of Ms. Myers. His examination revealed that Ms. Myers had a visual acuity of combined. 2%o
Appellant, Ms. Witthoeft, Witthoeft’s spouse, Henry G. as personal representative of the behalf, decedent and on his own filed a complaint against Dr. Kiskaddon. Appellant’s com- plaint consisted of action, three counts: a survival a wrongful action, death and a claim for punitive damages. The com- plaint alleged that the physician failed inform Ms. Myers that she was not “legally authorized” to drive a motor vehicle in Pennsylvania and that Dr. Kiskaddon failed to results of Ms. Myers’ examination to required PennDOT as law. Appellant asserts that Myers’ inability to see was the direct proximate cause of the accident.
Dr. Kiskaddon filed preliminary objections in the nature of
a demurrer to the complaint as
specific
well
to the
allega-
tions
complaint.
The Court of Common Pleas of
Franklin County found that Dr. Kiskaddon owed no duty to
*4
appeal
1. This
procedural
comes to us in the
of
context
the trial court
granting preliminary objections in the nature of a demurrer.
In our
review of
grant
the trial
preliminary
court's decision to
objections
the
demurrer,
in the nature of a
all material facts as set forth in the
complaint as well
reasonably
as all inferences
deducible therefrom are
accepted as
presented by
true. The core issue
the demurrer is whether
averred,
on the
says
facts
certainty
the law
with
recovery
that
exists,
impossible. Where doubt
this doubt should be resolved in favor
overruling
Philadelphia
demurrer. Emerich v.
Center For Human
Inc.,
al.,
209,
Development,
(1998);
et
554 Pa.
720 A.2d
Kyle
v.
Criste,
(1985).
McNamara &
506 Pa.
We of this Common- and citizens physicians to important wealth. of this Common- argues that under laws first
Appellant to wealth, legal obligation Dr. Kiskaddon had essence, Appellant Myers’ vision. poor PennDOT con- and from them requirements notification looks to these for dam- of action private cause they authorize tends upon physician’s failure Dr. Kiskaddon based against ages vision. Myers’ PennDOT Ms. notify regarding a provisions contains Motor Vehicle Code retain, obtain, license. driver’s eligibility driver’s alia, inter encompass, § 1518. provisions Pa.C.S.A. These driving. Pur- impair presumed conditions that are medical Board is Advisory § a Medical to 75 Pa.C.S.A. suant conditions physical various mental and charged defining ability of a drive person to affect the that are deemed 1518(b) and certain others requires physicians safely. Section name, birth, and address to PennDOT the date or disabili- having specific disorder diagnosed person each of one may operating privileges ty. PennDOT recall has been estab- a motor vehicle incompetence to drive whose § The list of Pa.C.S.A. under the Code. 75 lished at 67 83.3-83.5. are found Pa.Code and disabilities disorders *5 the Specifically, regulations promulgated under the Motor require Vehicle Code that: physical mental shall by physi-
these and criteria be used in physical cians of for conducting applicants examinations permits learner’s by physicians and driver’s licenses and persons other diagnose and authorized to and treat disor- and in chapter determining ders disabilities covered this a person [physician] whether examined the should be as reported Department having affecting disorder ability of person safely. to drive § 67 Pa.Code 83.1.
Visual standards are found 83.3: (c) A acuity person Jess than visual Visual with 20/70. of acuity of less than combined vision with best correction 2% is not authorized to drive. 83.3(c).
67 Pa.Code Thus, Appellant to impose liability physi- seeks a new on patients cians for motor accidents vehicle caused their through physician’s comply failure to with the notification requirements in the Motor found Vehicle Code.2
We must determine whether Motor Vehicle Code, thereunder, the regulations promulgated or expressly First, implicitly provide private remedy. for neither the nor regulations Code expressly private authorize cause action report problem. failure vision Section 1518(b) of the merely Motor Code requires physicians Vehicle persons and others information PennDOT on diagnosed having disability a disorder or that PennDOT’s Appellant complaint critical allege It is to note that has failed in his Myers’ acuity that Ms. visual is "with best correction.” 2%o regulation person acuity relevant is that a clear with visual of less than correction,” i.e., combined vision "with best the use correc 20/io lenses, Obviously, tive is not Appellant authorized to drive. unless can measurement, establish measurement is a "best corrected” 2%o Myers’ vision would have fallen PennDOT below standards Dr. Kiskaddon would had have no inform PennDOT of the However, Myers’ of Ms. status vision. because our resolution issue, assume, stage and because proceedings, of the we will arguendo, Appellant’s acuity with best correction. 2%o ability affects their Board determined Advisory has Medical investigation PennDOT’s triggers Such a drive. *6 li- subject’s the driver’s suspend action to further possible statute, failure to However, physician’s a under the cense. rise a give private a does not of disorder notify PennDOT stated, terms the Simply or else. remedy anyone Appellant action. create cause of expressly private a the statute do implic- the statute we to consider whether required are private remedy. creates a itly has a three- Court offered Supreme States
The United private whether a determining in analysis assist prong one. providing in a not expressly is statute remedy implicit (1975). 2080, Ash, 66, L.Ed.2d 26 422 95 S.Ct. 45 v. U.S. Cort decision are: three under the Cort factors [fjirst, especial for of the class whose plaintiff is the ‘one enacted,’—that is, does the statute benefit the statute was Second, is there plaintiff? in of the right create a ... favor intent, implicit, or either legislative explicit any indication Third, is it deny or to one? remedy such a create of the underlying purposes legislative consistent with for remedy plaintiff? such a imply scheme to 78, (citations omitted)(emphasis original). 2080 at Id. 95 S.Ct. a beneficial frame decision offers We believe that Cort issue the statute at analyze within which to whether work As second private right action.3 implicitly creates inquiry” factor been the “central recognized Cort has Co. v. prong. with that Touche Ross & analysis, begin we 2479, 575, 61 82 560, 99 L.Ed.2d Redington, 442 U.S. S.Ct. Distributors, (1979); v. A.P. Inc. Weilers M. Lutheran Alfred bacher, 83, (1994); Inc., 650 87 alloca Pa.Super. A.2d (1995). denied, does Pa. A.2d 791 Nowhere tur private parties suggest found the statute language damages comply for a failure to bring seeking an action may reporting The intent of the provisions. with the notification action prong, fourth "is the cause of The Cort also contains a decision inappro- ... it traditionally relegated state law so that would be one solely Id. priate based on federal law?” to infer a cause of action Obviously, prong inapplicable a state statute. fourth is from requirements simply clear its face. The statute re- quires notification to PennDOT certain under Additionally, circumstances. does Appellant any not offer legislative history Assembly’s illuminate the General intent. guidance Our finds that the statutory history review offers no Indeed, as to this issue. to the extent the statute discusses all, civil actions at precludes it cause of action. 75 private 1518(f)(“[n]o civil may brought Pa.C.S.A. ... action be against any person agency information providing the required under this system.”).4 legislative
This court or imply is hesitant to infer intent where of such impact leap would constitute a change Hoy Angelone, drastic law. Accord 554 Pa. 720 A.2d We find prong that the second analysis Cort has not been satisfied.
Turning to
remaining secondary prongs,
the
we must first
allowing
whether
a
against
consider
cause of action
a physician
be
would
the underlying
consistent with
scheme.
statutory
statutory
The
scheme authorizes PennDOT to
certain
adopt
criteria,
standards,
physical
including
and mental
vision
for
licensing
the
of drivers. These
and
physical
mental criteria
are
conducting physical
used
examinations of applicants for
permits
learner’s
and driver’s
The
licenses.
medical criteria
also apply to subsequent
by
examinations of drivers
their
physicians. Upon discovery of certain
disabili-
disorders and
by
regulations,
ties covered
physicians
required
are
to
Thus,
notify PennDOT.
rather
requiring
driving
than
to
public
submit to periodic physical
examinations
Penn-
DOT, the
has required physicians
Commonwealth
to
certain disorders and disabilities to PennDOT to assist it in
a
making
determination of the
of
an
propriety
maintaining
interesting
It is
to
that the
note
Commonwealth Court has held that
may
PennDOT
incorrectly failing
not be sued for
a
to revoke
driver’s
provisions.
license under
Dept. Transporta
these
Giovannitti Com.
of
tion,
572,
denied,
(1988),
113 Pa.Cmwlth.
Appellant also as a Appellant’s a decedent foreseeable duty don owed is, Dr. Kiskaddon omissions. That physician’s victim of the inform Ms. by failing Ms. Witthoeft breached condition, notify and this failure to Myers poor her cause of Ms. Witthoeft’s proximate a direct and constituted In cites to support argument, Appellant death. of his County, Homes-Chester Lynch court’s decision DiMarco v. Inc., 525 Pa. 583 A.2d DiMarco, physician may
In that a be liable this court held injured to a third who is because non-patient person case, In that patient. treatment of a physician’s negligent who patient, misinformed his a blood technician had physician accidentally hepati- to the communicable disease exposed been B, tis if free for six weeks she was symptom she remained told the patient not infected with the disease. The fact, for six to refrain from sexual relations weeks. relations with patient boyfriend abstained from sexual her Additionally, Appellant asserts that Dr. Kiskaddon failed to inform Myers Appellant legally Ms. that she was authorized to drive.” "not First, placing Assembly the cart before the horse. the General could patient regarding have notification vision and the mandated Moreover, patient’s driving guarantee there is no but did not do so. filed, Myer’s operating privileges that once a was would out, Myers points have Dr. whether Ms. been revoked. As Kiskaddon legally permitted to drive is a determination to be made examination, Myers’ filing PennDOT. At the time of Ms. of an supersedeas operating appeal by a driver as a and the driver’s acted privileges could not be revoked until a final determination of the 1550(b). upon certain visual matter. 75 Pa.C.S.A. based examination, notify patient be error to Dr. Kiskaddon would legally permitted physician simply A he or she was not to drive. cannot failing give warning that is inaccurate. be held liable for *9 350 free, symptom patient the resumed
eight being weeks. Still both the partner. Subsequently, sexual relations with her B. boyfriend diagnosed hepatitis her were with patient and boyfriend brought against physi- suit certain patient’s cians, in failing patient their to warn the alleging negligence within six months could having expose sexual relations This court that the partner her sexual to the disease. found third whose health could physician’s duty encompassed parties i.e., patient, contact with the diseased the be threatened in to those physician such circumstances extended Thus, within orbit of risk of harm. foresee- the foreseeable duty. of ability was the essence of the determination DiMarco, in plaintiff contends that like the Wit- Appellant thoeft within the foreseeable risk of harm when Dr. fell Myers poor eyesight. Kiskaddon failed to inform Ms. of her distinguishable that DiMarco is for a number of We believe reasons. in
Initially, the focus of the court DiMarco was on the at issue. the court unique Specifically, medical condition great emphasis injury on the fact that the involved was placed Thus, spread a communicable disease. the threat of the in paramount communicable disease was the court’s mind. Institute, Pa.Super. See Troxel v. A.I. Dupont denied, alloc. 546 Pa. 685 A.2d A.2d (1996), disease, physician’s duty In the context of a communicable accurate information is critical because information provide risks of or the regarding contacting dangers the disease the disease are often times not known to the transmitting Thus, context, general in this the education and advice public. are provided by about the communicable disease great import finding duty may and the have been However, in judice, reasonable. the case sub we are faced vision, certainly with not a communicable disorder or a Finally, disorder of imminent threat to health. it is a condi policy tion of is well aware. patient which noticeably reasons DiMarco are absent this case. present Additionally, giving of incorrect DiMarco dealt DiMarco, health care the third professional. advice Here medical advice. the erroneous actually upon relied party *10 that allegation an advice but there was no incorrect that she had his patient to inform physician failed would have patient a condition of which eyesight, again, or Ms. that Ms. Witthoeft There is no indication been aware. from advice upon erroneous relied to their detriment Myers Indeed, was in the Myers patient. Dr. to his Kiskaddon effects, acuity her visual any, if that position best to know the Thus, inapposite find DiMarco driving. on we would have her holding to impose not extend its present to the matter and will circumstances of provider under the liability upon a medical this case. County both the Franklin
Although directly point, not on Court found the Superior Court of Common Pleas and Sultz, 527, v. 405 592 Crosby by Crosby Pa.Super. decision (1997) Crosby, A.2d 1337 to be instructive. The decision report- the case sub involved Motor Vehicle Code judice, like plain- facts of that case disclose that ing requirements. The tiffs, a vehicle pedestrians, injured by operated who were were Dr. brought against James Jackson. Plaintiffs suit Marvin alleging temporary Sultz Jackson had sustained of lapse of consciousness and lost control the vehicle because of his diabetic condition. The claimed that Dr. Sultz plaintiffs drive, should have not to but also only counseled Jackson him reported pursuant should have to PennDOT to the Motor reporting requirement, Vehicle Code. The relevant 67 Pa.Code 83.5(a)(2), patient notification if the from mandated suffered diabetes, unstable or brittle unless there has been a continu- period ous of at least six months freedom from a related syncopal attack. Crosby duty
The court held that the doctor did not breach a injured lost plaintiffs patient care to the when the doctor’s while a motor vehicle. the loss operating consciousness While allegedly of consciousness arose from a diabetic condition Sultz, known to Dr. that Jackson had not the court noted a loss of consciousness as a result of his previously suffered obligation the notification under 67 Pa.Code diabetes. § 83.5 never arose.
However,
on to
that:
the court went
state
duty
if Dr.
did
Jackson’s
Sultz
have
disclose
[e]ven
no
Department
Transportation,
name to the
we find
obligation
duty
connection between that
and a
of care
logical
were not foreseeable
[plaintiffs].
[plaintiffs]
to the
victims of Dr.
actions or inactions. See Zanine v.
Sultz’s
(1985)
Gallagher,
Pa.Super.
(scope
Crosby,
(emphasis
original).6
Having
agree
considered these
we
with the
present
that the issue in the
matter is more
Superior Court
in
may
akin to
than to the situation DiMarco.
It
be
Crosby
to an infectious
reasonably
patient exposed
foreseeable that a
professionals’ duty
Additionally,
involving
health
cases
mental
patients
parties
warn third
of threats
their
are consistent
this
directly
Although
point, case law from this Common-
rationale.
wealth,
on
Emerich,
including
in
makes
the recent decision from this court
only
duty
in
context
arises where there is an
clear that a
to warn
this
Emerich;
party
identifiable and forseeable third
victim.
see also Leon-
(1993);
Hospital,
Pa.Super.
Appellant’s foreseeability not stretch recognize. We will court will to make so will be recognition for do beyond point in this case would be liability allow endless. To liability acts of their for the various absolutely liable physicians make We recall the admo- This we will not countenance. patients. in his Flaherty stated Chief Justice eloquently nition Emerich; applicable point equally in it is a concurring opinion judice: sub to the matter that an extension
Yes,
instances
many
can reason
so
one
naturally and
step flowing
a small
liability merely
seemingly
law. Yet each
existing
from the
case
logically
time,
number
proliferating
to an ever
over
leads
step,
small
in terms of
huge leaps
steps
up
that add
of small
and I
stop
it must
liability.
point
At some
extension
what is
of the law with
line
this area
would draw the
*12
case—no further.
by the court
this
expressed
Emerich,
For the above-stated Court.7,8 Superior PennDOT compel notification to Assuming factual basis existed to
7. a Code, Ms. failure Motor Vehicle Dr. Kiskaddon’s under the However, it is acuity not to be condoned. Myers’ visual to PennDOT is penalty Assembly appropriate for to determine the the General for physician liable for noncompliance, not for this court to render by patient. his accident caused injuries in an automobile sustained (Second) of liability upon Restatement Appellant based also asserts Torts, 324A(a). underpinnings of Appellant that the factual asserts However, Appellant while complaint. are in his such a claim contained ZAPPALA concurs in Justice the result. dissenting opinion.
Justice NIGRO files a NIGRO, Justice, dissenting.
I respectfully majority must dissent because the fails to see Contrary the forest for the trees. position I majority, ophthalmologist believe that an should be held party injuries by liable a third for caused his patient’s of a motor when operation ophthalmologist vehicle has to inform Pennsylvania Department failed of Transporta- (PennDOT) patient’s poor tion of that visual acuity, he is required to do law.
As majority, Myers noted Helen was a of Dr. patient Kiskaddon, ophthalmologist. an In March of Dr. Kis kaddon Ms. Meyers examined and determined that she a had Code, acuity visual combined. Under the Motor Vehicle 2%o with person acuity of less than with combined best 2%o correction is not authorized drive and a is re quired to patient diagnosed with this level of visual Nonetheless, acuity to PennDOT. Dr. Kiskaddon failed notify PennDOT of Ms. Meyers’ condition and allegedly failed Meyers to inform Ms. legally she was not authorized in Pennsylvania. drive
Four months after Dr. Kiskaddon’s examination of Ms. Meyers visual acuity revealed her was less than 2%o combined, Meyers operating motor vehicle on Walker Road. struck bicycle being She by Lynn ridden Witthoeft, who injuries died as result of sustained Appellant, accident. as Ms. Witthoeft’s husband and the estate, personal representative of her a complaint against filed preliminary objections notes that argued were briefed and before the court, trial argued theory he does not assert that he before the trial only Appellant legal theory court. raised this for the first time on We, Court, appeal Superior Superior to the Court. like the find the Moreover, 302(a). issue to be waived. Appellant Pa.R.A.P. now fails to any meaningful argument respect liability offer under section 324A(a). appropriate We Appellant’s argu- do not believe it to make him, therefore, ments for will plea not address his alternative 324A(a). relief under section *13 Meyers’ Ms. alleged complaint The Dr. Kiskaddon. Dr. Kiskad accident and had caused inability to see that she Meyers Ms. to inform failing for liable don was to her due Pennsylvania to drive authorized legally not Meyers’ of Ms. PennDOT notify to failing and eyesight acuity. impaired requires Code Vehicle the Motor majority explains,
As the diagnosed are who to PennDOT report patients physicians ability drive affect their that would conditions with certain 1518(b) requires of the Code section safely. Specifically, name, birth, and date to PennDOT the report physicians specified disor- having diagnosed person of each address 1518(b). list of applicable § The 75 Pa.C.S. disability. der disabilities, regulations promulgat- found disorders a visual Code, with person diagnosed includes ed under Pa.Code 83.3. See 67 than combined. acuity of less Dr. Kiskaddon on clearly imposed provisions These to PennDOT. examination results Meyers’ eye finds, however, failure that Dr. Kiskaddon’s majority The to a private rise statutory duty give does with his comply is inconsistent remedy because such a essentially remedy require- reporting Code’s of the Motor Vehicle purpose I cannot of the Code. statutory scheme general and the ments agree. view, requirements reporting of the purpose my to Penn- doctors Requiring not be clearer.
could with certain diagnosed have been those drivers who DOT safely, to drive ability that will affect their conditions medical 2%o, first and than serves acuity a visual of less such as injury from pedestrians protect motorists foremost it is driving because who should not be by persons caused Secretary As stated for them to do so. unsafe reporting require upon readoption Transportation ments: readoption that without explained also Department any be left without Department would regulations,
these licensure; even individ- consequently, standards for medical *14 uals with problems severe vision ... eligible would be licensure, creating unacceptable an level of risk on our highways. Bulletin, 20, added).
PA .Vol. No. April 1991 (emphasis This statement reflects what I to believe be the obvious intent of the reporting requirements at issue here—a doctor is required to report person diagnosed with severe visual impairment, Meyers, such as Ms. to in PennDOT order to protect people on the highways from drivers who are too visually view, to drive In impaired safely. my doctor’s to report certain medical conditions to merely PennDOT not Commonwealth, an administrative benefit to the majori- as the Rather, Code, ty suggests. under the the doctor serves as critical link in highway safety by alerting PennDOT those drivers who diagnosed have been with medical conditions that put them at injuring risk of themselves or others on the road. Commonwealth, Without compliance by the doctors of this PennDOT’s to act ability preventatively proactively removing medically unsafe drivers from the road before a traffic incident occurs would be In severely hampered. light express doctor’s statutory duty and what I see as the plain reporting intent of the requirements, it seems only logical that a doctor should be liable to a third party for injuries caused aby patient’s poor visual acuity when the doctor report has failed to that patient’s condition to Penn- DOT.
Similarly, in
Lynch
DiMarco v.
County,
Homes-Chester
Inc.,
(1990),
525 Pa.
I also cannot Myers case because Ms. from this distinguishable DiMareo but Dr. Kiskaddon given by advice not on erroneous rely did effects, if any, to know position “in the best rather was Although driving.” on her would have acuity that her visual I failing, that her vision was likely realized Meyers Ms. most doctor, as a eye to her Meyers that Ms. went only can assume regarding her visual information and advice seeking specialist, it specialty, is Dr. Kiskaddon’s ophthalmology acuity. Since he, was Meyers, and not Ms. seem to me that would Myers’ poor the effects of Ms. to understand position best DiMareo, Wit- the victim in majority that unlike 1. The concludes failure to act in victim of Dr. Kiskaddon’s thoeft was nol a foreseeable Instead, lawfully bicy- person I that a disagree. believe this case. I Witthoeft, road, foreseeable cling public as Ms. is within the on a such patient that her failure to inform a created a doctor’s risk of harm driving legal requires for acuity what the standard visual is less than Pennsylvania patient’s impaired acuity to visual PennDOT. Thus, acuity on her it driving. makes sense that the doctor, imposes duty Motor Vehicle Code on the patient, presumed medical conditions which are impair patient’s ability to drive. sum, it seems clear that legislature enacted the reporting requirements physicians report pa- ensure tients with certain medical conditions so that PennDOT can take steps prevent medically-impaired individuals from driving and harming themselves or others who are on the Dr. road. Because Kiskaddon failed to with his statu- comply I tory duty, believe that he owes a to a party third who injured as a result of that I noncompliance. would Court, reverse the order of the Superior affirming the trial grant Appellees’ preliminary objections court’s in the nature demurrer, of a proceed and let this case to trial.
733 A.2d Pennsylvania, Appellee, COMMONWEALTH of CHESTER, Appellant. Frank Supreme Pennsylvania. Court of
Submitted 1999. June Decided June