                                     The Attorney General 6f Texas

      JIM MATTOX                                    December 31, 1985
      Attorney General


      Supreme Court Building         Honorable Gibson II. (Gib) Lewis        Opinion No.   JM-419
      P. 0. BOX 12549                Speaker
      Austin, TX. 7071% 2549         Texas House of Relwesentatives          Re:    Whether a physician who
      512/475-2501                   P. 0. Box 2910                          grants to an individual a medical
      Telex Qlo/a74-1367
      Telecopier   51214750266
                                     Austin, Texas   7fi769                  exemption from wearing a seat
                                                                             belt under article 6701d, section
                                                                             107c, V.T.C.S., may be liable in
      714 Jackson, suite 700                                                 the event of injury
      Dallas, TX. 752024506
      2141742-9944
                                     Dear Speaker Lawis;:

      4924 Alberta Ave., Suite 160        You ask sewral questions about the new seat belt law. Acts
      El Paso, TX. 799052793         1985, 69th Leg., <:h. 804, at 6062 (to be codified at art. 6701d.
      915/5333484                    §107C, V.T.C.S.).  The law provides that, as a general rule, persons
                                     riding in the frcsnt seat of a passenger car must wear a seat belt.
/-,
        01 Texas. Suite 7M)          The law takes intcmaccount, however, the possibility that a person may
      Houston, TX. 77002-3111        not be able to wsr a seat belt for medical reasons by providing as
      7131223-5886                   follows:

                                                  (f) . . . [The seat'belt requirement] does not
      808 Broadway, Suite 312
      Lubbock, TX. 79401-347s
                                               apply tu a person who possesses a written state-
      SW47-5238                                ment frlnn a licensed physician stating that for
                                               medical treasons the person is unable to wear a
                                               safety telt.
      4309 N. Tenth. Suite B
      McAllen, TX. 79501-1885
      5121992-4547                                (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
      2M) Main Plaza, Suite 4W                 statement from a licensed physician stating that
      San Antonio, TX. 79205.2797
                                               for medical reasons the person is unable to wear a
       512,225-4191
                                               safety belt.

       An Equal OpportunityI         V.T.C.S. art. 6701d, §107C(f) and (g).          You    ask     the   following
       Affirmative Action Employer   questions in regard to those provisions:

                                                  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
                                               sufficient to protect the physician from liability


                                                                   p. 1913
.

    Honorable Gibson D. (Gib) Lewis - Page 2    (JM-419)




              connected with tinauto injury where the failure of
              the parson to w(!ara seat belt becomas an issue?

         Article 6701d, sactl3n 107C. does not contain any provision
    providing for immunity E:com civil liability for a physician who
    provides a written statemc!ntthat a person cannot wear a seat belt for
    medical reasons. The stBl:ute does, 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 practical matter, this rule would
    make it extremely difficult for a person to prove a claim of negli-
    gence against a physician who had provided a statement of medical
    exemption.

         If a person claimed tlat a physician who has provided a statement
    of medical exemption was :!iablefor injuries that person suffered in
    an automobile accident, the physician's liability would depend on the
    plaintiff's ability to pro'rethe elements of negligence. Generally, a
    finding of liability baslid on 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, 5111 S.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.6v. Southland Hotel, 229 S.W.2d 357, 361
    (Tex. 1950); Clark v. Wawner,
                               --   452 S.W.2d 437, 440 (Tex. 1970).

         Pour second question is whether a release from the person seeking
    the exemption would 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 defini-
    tive 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 manda-
              tosy seat belt law. The validity of a release
              depends on the drcumstances of the particular
              case.

                                           %Jzou$(&



                                             JIM     MATTOX
                                             Attorney General of Texas


                                 p. 1914
Honorable Gibson D. (Gib) Lewis - Page 3 (m-419)




JACK HIGH'fOWER
First Assistant Attorney Gmeral

NARY KELLER
Executive Assistant Attorne:yGeneral

ROBERT GRAY
Special Assistant Attorney fGenera1

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




                              p. 1915
