Rejecting a challenge over confidentiality, the Court of Appeal says California law supports a physician who struggled with her decision to report her patient’s condition to the Department of Motor Vehicles.
In 2002, Michael McNair, a commercial driver for two years, reported during a neuropsychiatric evaluation that he followed his own bus routes, didn’t like to babysit people, and on one occasion drove a group of children from San Diego to Tijuana by mistake because he “just didn’t think.”
In 2004, Mr. McNair asked Ann Kim, MD, an internist employed by the San Francisco Department of Public Health, to determine his eligibility for renewal of his commercial driver’s license. Dr. Kim refused to so certify Mr. McNair based on his cognitive disorder and uncontrolled diabetes. In 2005, Dr. Kim wrote a letter in support of Mr. McNair's application for Social Security Insurance disability benefits by stating her opinion that he was not able to hold down any kind of full-time job.
The next year, however, Mr. McNair told Dr. Kim that he had been hired as a bus driver. She told him that he should not be driving children because of his poor health and that she was inclined to write to the DMV about his medical condition. Though Mr. McNair stated that he did not want Dr. Kim to communicate to the DMV, the internist wrote a letter concerning Mr. McNair’s diagnosis of Cognitive Disorder NOS.
In that letter, Dr. Kim referred to Mr. McNair’s 2002 neuropsychiatric evaluator’s comment advising against renewal of his professional driving license and described a follow-up evaluator’s report in 2005 as saying Mr. McNair “lacks capacity to set limits on himself and fails to understand the consequences of his behavior.”
When the DMV subsequently revoked his commercial license, Mr. McNair sued the City and County of San Francisco and Dr. Kim for intentionally violating California’s medical privacy laws. The trial court dismissed the claim after ruling that Dr. Kim’s communication fell within California’s “litigation privilege.”
On review, the Fourth District Court of Appeal in McNair v. City and County of San Francisco said that Dr. Kim wrote her letter “out of concern for McNair’s safety and the safety of the public” and that she based her letter on her own observations and on the reports of other specialists. The Court of Appeal noted that Dr. Kim did not immediately contact the DMV after learning of Mr. McNair’s new employment “because she was wrestling with the decision whether to protect her patient’s confidentiality or to disclose McNair’s information for the safety of the public.” Once Dr. Kim learned that her patient would be driving a school bus, that “just kind of pushed the balance.”
Prior to sending her letter, Dr. Kim had reviewed the DMV’s website, which stated: Physicians are required by law (Health & Safety Code Section 103900) to report disorders characterized by lapses of consciousness, as well as Alzheimer’s disease and related disorders. Additionally, they may report any other condition if they believe it would affect the driver’s ability to drive safely.
In upholding the lower court’s dismissal, the Court of Appeal noted that California’s litigation privilege applied to Dr. Kim’s letter as it involved a “quasi-judicial proceeding” (i.e., the DMV’s review of drivers’ qualifications to drive safely) and was made by an “authorized” individual (Dr. Kim, as a licensed physician), among other considerations. With regard to whether Dr. Kim violated California’s medical privacy laws, the court said that the confidentiality statute itself, Civil Code 56.10, contains provisions in which disclosure of confidential information is either mandatory or permissive.
“Because California has a policy of encouraging reports regarding suspected unsafe drivers, [the state’s medical confidentiality laws] must be construed in a way that will not impede voluntary reports of the type generated by Dr. Kim. . . .”
Gordon Ownby is general counsel for CAP. Questions or comments related to this article should be directed to gownby@CAPphysicians.com. The information in this publication should not be considered legal or medical advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.