In 2001, Mr R began having numerous episodes of syncope. In 2002, he was diagnosed with swallow syncope, which is associated with intense vagal afferent activation from esophageal stimulation. A pacemaker was implanted to remedy the situation and Mr R did not have a passing out episode again until 2016.

A month earlier, Mr R began to experience episodes of dizziness and lightheadedness when he got up from bed. The episodes did not occur if Mr R stood, sat still, or swallowed liquids. They only occurred in the morning and not throughout the day. To have this checked out, Mr R went to a cardiology practice where he was seen by Ms N, a nurse practitioner, and Dr I, an internal medicine resident.

During the visit, Dr I performed a physical examination and took a medical history. He noted in the appointment progress report that Mr R received a pacemaker in 2002, but no mention was made of why the pacemaker was installed. Ms N ordered a pacemaker interrogation to evaluate how well the leads were working and to determine if the patient was having arrhythmias.

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The report indicated that the patient had not experienced any arrhythmias and that the pacemaker’s right ventricular lead was not being used to pace his heart. Ms N was aware that the report showed an elevated number for impedance of the pacemaker’s right ventricular lead, and she attempted to determine whether the dizzy episodes were related to this. In light of the patient’s report that the dizziness lasted minutes to hours, occurred when he moved his head, and that the symptoms were lessened by the medication meclizine, Ms N believed that Mr R’s dizziness was caused by an inner ear problem. Ms N referred Mr R to an otolaryngologist, instructed him to stop taking his blood pressure medications, and asked him to return for a follow-up visit in 6 months. The cardiologist at the practice did not see or treat Mr R, but he signed off on the progress report of the appointment that Ms N prepared.

The following month, Mr R was driving with his wife. He took a sip of coffee and had a feeling similar to his prior experiences before passing out. Mr R pulled off the road but was unable to stop the truck and he crashed into a tree, injuring himself and his wife. Following the accident, Mr R was hospitalized and underwent a right ventricular lead revision. In January 2017, the cardiologist signed a letter indicating that the patient had suffered a syncopal episode caused by “malfunction of his right ventricular lead of his previously placed pacemaker” while driving that led to the automobile accident. The letter advised that the malfunction was corrected and that Mr R was able to resume driving without restrictions.

Two years later, Mr R and his wife sued the cardiology practice and the cardiologist for medical malpractice. The complaint alleged that the cardiologist owed a duty to the wife, as a foreseeable passenger, to properly treat Mr R and that the physician breached this duty by failing to:

  • Take a specific history to determine the pattern, frequency, and duration of the episodes
  • Determine if there was a correlation between the dizzy episodes and the pacing of the right ventricular lead in the pacemaker
  • Implement a plan to repair or replace the right ventricular lead
  • Advise Mr R not to drive

The defendants made a motion to dismiss the medical malpractice claim by the wife, asserting that she had no patient-physician relationship with the cardiologist or the practice and, thus, they owed no duty to her. The trial court denied the motion and the physician appealed.

Legal Decision

On appeal, the defendants alleged that the wife was not owed a duty under the law and that it was not foreseeable that Mr R would have a swallow syncope episode while driving. The appeals court disagreed. “The duty owed by the health care professional arises from the health care professional’s relationship with the patient,” noted the court, “however, it does not follow that only a patient may bring a malpractice claim or that a physician never owes a duty to third parties.”

To the contrary, the court noted that other courts have sometimes recognized malpractice claims by a third party despite the lack of a doctor-patient relationship. To maintain such a claim, the third party must establish that the physician owed a duty to the third party. Generally, duty is based on a relationship between the parties.

According to the court, “a duty of reasonable care may arise when one stands in a special relationship with either the victim or the person causing the injury.” Although the determination of duty is generally an issue of law, “the facts and circumstances of a special relationship may give rise to an issue for resolution by the jury,” noted the court, particularly in cases of a dangerous medical condition. Ultimately the court refused to dismiss the case and sent it back to the lower court for a trial.

Protecting Yourself

Both the nurse practitioner and physician failed to get enough information to determine whether Mr R was a danger to himself or others. Notably, Ms N ordered a pacemaker interrogation and the results determined that it was not functioning properly. Despite this, no further testing of the pacemaker was ordered, no efforts were made to fix it, and the patient was not warned about the abnormality with the pacemaker or that he could faint while driving. He was not told that he should not drive.

Additionally, neither Ms N nor Dr I asked why Mr R had the pacemaker installed. Had they known about Mr R’s history of swallow syncope, they might have handled his treatment differently. Information is power — gather as much of it as possible to make the best, most informed decisions.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.