A recent appellate opinion offers a memorable example of how strongly the law protects physicians who make reports to governmental agencies regarding the health and safety of their patients.
Dr. Christianne Heck, a neurologist, began treating Amr Sarieh in 2003 when Mr. Sarieh enrolled in a research study for epileptic seizures. Mr. Sarieh, 32, had his driver’s license suspended several years earlier.
The research treatment did not prove helpful to Mr. Sarieh and Dr. Heck recommended standard epilepsy surgery, which Mr. Sarieh declined.
According to the opinion, in November 2007, Mr. Sarieh told Dr. Heck that he was averaging about one seizure a month. Dr. Heck “made it clear he is not to drive” because of his risk to himself and others. She also reported Mr. Sarieh to the Department of Public Health.
In January 2008, Mr. Sarieh asked Dr. Heck to complete a medical evaluation form for the Department of Motor Vehicles (DMV) so that he could drive. Because Mr. Sarieh had reported that he continued to have seizures, Dr. Heck declined and gave him “strict orders” not to drive.
In April, Mr. Sarieh told Dr. Heck that his most recent seizure had been the previous November and again asked her to clear him for driving. Concerned with his medication compliance, Dr. Heck recommended that Mr. Sarieh be seizure free for another three months. In September, when Mr. Sarieh told her that his improved medication compliance had kept him seizure free, Dr. Heck agreed to complete the DMV form, which stated that Mr. Sarieh suffered from epileptic seizures, that he was taking medication, and that his last seizure was in November 2007. She opined that his medical condition did not affect safe driving, so long as he took his medication.
At a hearing in October, a DMV officer relied on Dr. Heck’s report and cleared Mr. Sarieh to drive. The next month, as he was driving to a pharmacy, Mr. Sarieh had a seizure, lost control of his automobile, and caused serious injury to a man and his wife. According to the allegations relied on by the court, Mr. Sarieh had not taken his seizure medication the evening before.
The couple sued Mr. Sarieh, Dr. Heck, and the DMV for negligence, medical negligence, and government tort liability.
Dr. Heck filed a “motion for summary judgment,” asking the trial court judge for a dismissal. As part of the motion, her attorney filed an expert’s declaration stating that Dr. Heck’s recommendation to the DMV was appropriate based on what the patient had told her.
In opposition, the plaintiffs filed an expert declaration stating that Dr. Heck “negligently evaluated” Mr. Sarieh and “negligently concluded that he did not have any medical conditions that affect safe driving. The DMV relied on that medical evaluation in reinstating [Mr. Sarieh’s] driver’s license.”
When judges get conflicting opinions in a motion to dismiss, they often say that the dispute must be resolved by a jury. Here, the judge — and the Court of Appeal — said that Dr. Heck deserved to be dismissed immediately.
The Second District Court of Appeal explained in Wang v. Heck, et al., that Dr. Heck’s alleged liability was based solely on actions involving her report to the DMV. As such, Dr. Heck deserves the full protection of California’s “litigation privilege,” and should be dismissed. Under the litigation privilege, a communication made as part of a judicial or quasi-judicial proceeding may not be used as a basis for liability after the fact. The DMV hearing qualified as such a proceeding.
The Court of Appeal explained that although the litigation privilege “has its costs,” it exists for the greater benefit of promoting communication in specified settings without one needing to be concerned about being sued over those communications later.
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc. (CAP).
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