JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12549 Austin, TX. 7071% 2549 512/475-2501 Telex Qlo/a74-1367 Telecopier 51214750266

714 Jackson, suite 700 Dallas, TX. 752024506 2141742-9944

4924 Alberta Ave., Suite 160 El Paso, TX. 799052793 915/5333484 /-, 01 Texas. Suite 7M) Houston, TX. 77002-3111 7131223-5886

808 Broadway, Suite 312 Lubbock, TX. 79401-347s SW47-5238

4309 N. Tenth. Suite B McAllen, TX. 79501-1885 5121992-4547 2M) Main Plaza, Suite 4W San Antonio, TX. 79205.2797 512,225-4191

An Equal OpportunityI Affirmative Action Employer 

# The Attorney General 6f Texas
December 31, 1985

Honorable Gibson II.(Gib)Lewis Speaker Texas House of Relwesentatives P. 0. Box 2910 Austin, Texas 7fi769 OpinionNo. JM-419 Re: Whether a physician who grants to an individuala medical exemption from wearing a seat belt under article 6701d, section 107c,V.T.C.S., may be liable in the event of injury Dear SpeakerLawis;: You ask sewral questions about the new seat belt law. Acts 1985, 69th Leg., <:h.804, at 6062 (to be codified at art. 6701d. §107C, V.T.C.S.). The law provides that, as a general rule, persons riding in the frcsntseat of a passenger car must wear a seat belt. The law takes intcm account,however, thepossibility that a personmay not be able to wsr a seat belt for medical reasons by providing as follows: (f) . . . [The seat'beltrequirement]does not

apply tu a person who possesses a written statement frlnna licensed physician stating that for medical treasonsthe person is unable to wear a safetytelt. (g) It is a defense to prosecution . . . that the perwn presents to the court, not later than the IOil day after the date of the offense, a statement from a licensed physician stating that formedical reasons the person isunable towear a safetybelt. V.T.C.S. art. 6701d, §107C(f) and (g). You ask the following questions in regard to thoseprovisions:

1. If a person who wears no seat belt is injured in an auto accident, does the physician who isswd the person a medical exemption letter face any civil liability? 2. If so, will a release from liability, signed lqr the person seeking the exemption, be sufficientto protect the physician from liability

p. 1913. Honorable GibsonD. (Gib)Lewis - Page 2 (JM-419)

connectedwith tinauto injurywhere the failure of the parson tow(!ara seatbelt becomas an issue? Article 6701d, sactl3n 107C. does not contain any provision providing for immunity E:comcivil liability for a physician who provides a written statemc!nt that a person cannotwear a seatbelt for medical reasons. The stBl:utedoes, however, contain the following provision: Use or nonuse of a safety belt is not

admissible evidence in a civil trial. V.T.C.S. art. 6701d, §107C(j). As a practicalmatter, this rulewould make it extremely difficult for a person to prove a claim of negligence against a physician who had provided a statement of medical exemption. If a person claimed tlat a physicianwho has provided a statement of medical exemption was :!iablefor injuries that person suffered in an automobile accident, the physician's liabilitywould depend on the plaintiff'sability topro'rethe elements of negligence. Generally, a finding of liability baslidon negligence requires proof that the defendant breached a duty of acting with ordinary care and that such breach was the proximate cause of injury to the plaintiff. See Rosas -- v. Buddies Food Store, 5111S.W.2d 534, 536 (Tex. 1975); Lumpkins v. Thoqtpson.553 S.W.2d 949, !I52(Tex. Cfv. App. - Amarillo 1977, writ ref d n.r.e.). Questions of failure to exercise ordinary care and questions of proximate cause are generally questions of fact to be answered by a jury. Blank.6 v. -- Southland Hotel, 229 S.W.2d 357, 361 (Tex. 1950);Clarkv. Wawner, 452 S.W.2d 437, 440 (Tex. 1970). -- Pour second question is whether a release from the person seeking the exemptionwould protect:a physician from liability. The validity of a release depends on the circumstances surrounding the particular release. See Atkins V. WorS,le,300 S.W.2d 688, 703 (Tex.Civ. App. - Dallas 195rwrit ref'd n.17x). Therefore,we cannot give a definitive response to your question. SUMMARY The law does not explicitly make physicians immune from liability for negligence In providing a person a statement of exemption from the mandatosy seat belt law. The validity of a release depends on the drcumstances of the particular case. %Jzou$(&

JIM MATTOX Attorney General of Texas
p. 1914Honorable GibsonD. (Gib) Lewis- Page 3 (m-419)

JACK HIGH'fOWER FirstAssistantAttorneyGmeral NARY KELLER ExecutiveAssistantAttorne:y General ROBERT GRAY SpecialAssistantAttorney fGenera1 RICK GILPIN Chairman,Opinion Committee Preparedby SarahWoelk AssistantAttorney General

p. 1915