A California law requiring doctors to report individuals who pose a threat while driving can make a sympathetic case even more difficult to defend.
A 67-year-old gentleman had been seeing Dr. FP, his family practitioner, for hypertension and Type II diabetes for three years. During an office visit, the patient told Dr. FP he had recently suffered two “seizures” one week apart. When he self-checked his blood sugar after the second episode, the got a reading of 76. Dr. FP referred her patient to a cardiologist and a neurologist and advised him not to drive until he had completed those evaluations.
When the patient saw the neurologist a week later, the specialist formed the impression of “seizures” and ordered a sleep-deprived EEG. The patient failed to follow through with that test and a week later was hospitalized overnight for a hypoglycemic event without loss of consciousness.
The patient ignored Dr. FP’s advice not to drive and later rolled over his motor vehicle, prompting a visit to the emergency room, where he was treated for injuries without blood labs being taken.
Two weeks later, the patient drove a rented car onto the wrong side of the road, severely injuring a husband and wife who were riding a motorcycle while visiting from out of state. When he saw Dr. FP the next day, the patient told her that he had a “blackout because of sugar drop.” After the second accident, the patient stopped driving. He died five months later.
In their lawsuit against Dr. FP, the injured couple contended that she had sufficient information to report the patient to the local health officer, who would have suspended the gentleman’s driver’s license before the accident.
California Health & Safety Code Section 103900 requires that:
Every physician and surgeon shall report immediately to the local health officer in writing the name, date of birth, and address of every patient at least 14 years of age or older whom the physician has diagnosed as having a case of a disorder characterized by lapses of consciousness.
The statute goes on to explain that the local health officer is required to notify the Department of Motor Vehicles of every person so reported. The DMV, in turn, must determine the eligibility of the reported individual to operate a motor vehicle.
In a motion for summary judgment, Dr. FP’s defense attorney filed a declaration by an expert on DMV processes. In that declaration, the expert explained that there was “no possibility” that the DMV would have taken action on the patient’s driving privileges between Dr. FP’s learning of the two lapses of consciousness and the time that the patient’s rental car struck the motorcycling couple 27 days later.
In opposition, the plaintiffs’ attorney filed a declaration from a physician who stated that Dr. FP knew her patient to be noncompliant, that she inappropriately dismissed hypoglycemia as a cause of the patient’s “seizures,” and that she did not document on subsequent visits a “demand or warning” to the patient that he not drive. The physician criticized Dr. FP for not making a report to the public health officer under Section 103900 and pointed out that in her deposition, Dr. FP admitted not knowing about the statutory requirement until after the incident.
Notwithstanding the declaration by Dr. FP’s expert on DMV procedures, plaintiff’s expert concluded that Dr. FP’s failure to take steps to prevent her patient from driving was a “substantial contributing factor” in causing the collision with the motorcycle. Those words provided enough of an issue to bar summary judgment by the judge, so defense counsel withdrew the motion. Dr. FP and the couple later arrived at an informal resolution of the dispute prior to the matter going to a jury.
While the California statute does not, in itself, establish liability, evidence that a physician failed to report a person suffering from black-outs can, when combined with a physician expert’s critical testimony, provide an irresistible temptation for a jury to side with an innocent bystander.
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc.(CAP).
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