Is doctor liable for patient’s crash?
Doctor Christianne Heck must have had that sinking feeling when she heard that one of her patients had suffering an epileptic seizure while driving and been involved in a serious accident.
Perhaps the doctor even felt a measure of responsibility for the crash since she had just certified to the California DMV that her patient was safe to drive.
Cang and Xiaofen Wang believe that Dr. Heck was more than a little responsible for the accident. They were in the path of Amr Sarieh’s car when he suffered an epileptic seizure and lost consciousness. Struck down by the out-of-control vehicle, Mr. Wang’s injuries were serious enough to require the amputation of his legs. Mrs. Wang kept her limbs but suffered a traumatic brain injury.
The accident occurred on Nov. 18, 2008, two and a half months after Dr. Heck helped Sarieh get his driver’s license reinstated by assuring the California Department of Motor Vehicles that her patient was safe to drive.
Sarieh was born in 1971 and has suffered from seizures since the age of 13. Sarieh’s license was suspended for three years in 2001 or 2002 when he suffered a seizure and hit a lamp post. His license was suspended again when he had another seizure-related accident in 2007.
Heck began treating Sarieh in 2003. After his license was suspended in 2007, Sarieh pestered Heck to certify that he was safe to drive so that he could get his driving privileges reinstated.
Heck wouldn’t budge at first. The doctor was concerned that, even after corrective surgery, Sarieh suffered seizures approximately once every couple of months. Moreover, the doctor allegedly didn’t trust Sarieh to take his anti-seizure mediation.
Dr. Heck began to relent in September 2008 after Sarieh reported that he had been seizure-free since November 2007. On Sept. 2, 2008, Heck completed a DMV evaluation form so that Sarieh could have his license reinstated. In the form, Heck indicated that Sarieh’s prognosis was good, that his condition was stable, and that his condition did not affect safe driving, so long as he took the prescribed medication.
On Oct. 22, 2008, a DMV investigator interviewed Sarieh to determine whether to reinstate his license. Based on the results of the interview and Dr. Heck’s evaluation, a DMV hearing officer decided to lift the suspension.
Unfortunately, Sarieh allegedly failed to take his epilepsy medication several weeks later on the night before he suffered a seizure and ran down the Wangs.
Upon learning of Heck’s role in getting Sarieh’s driver’s license reinstated, the Wangs sued Heck for negligently evaluating her patient’s fitness to drive. The centerpiece of their lawsuit was the DMV evaluation form that Heck completed in furtherance of Sarieh’s efforts to have his suspension lifted.
Unfortunately for the Wangs, Los Angeles County Superior Court Judge Lisa Hart Cole decided that that their suit was barred by the state’s litigation privilege, which protects communications in furtherance of judicial or “quasi-judicial” proceedings.
Last month, the California Court of Appeal agreed that the DMV evaluation form completed by Dr. Heck fell within the scope of the privilege:
Although Heck did not complete the DMV evaluation form for purposes of testifying in judicial proceedings, the form was used in the DMV hearing in order for the DMV hearing officer to determine whether to reinstate Sarieh’s license. Thus, the form was used in an administrative proceeding, which is a “truth-seeking proceeding” for purposes of applying the litigation privilege.
In an attempt to get around the privilege, the Wangs stressed that the real issue was Dr. Heck’s alleged medical negligence.
But the court rejected this characterization of their claims:
[The Wangs] argue that their claims are based on Heck’s negligent conduct in reaching her conclusion that it was safe for Sarieh to drive, rather than the conclusion itself. However, it is clear that Heck’s conduct prior to completing the September 2, 2008 DMV evaluation form was the basis of her communication in completing the form. Although appellants attempt to characterize their claim as medical negligence by failing to warn Sarieh not to drive, the basis of their complaint is Heck’s statement on the DMV medical evaluation form that Sarieh could drive safely. Because “[t]he offending conduct alleged by appellant[s] occurred during and as part of the preparatory activities which were directed toward and done in contemplation of” determining Sarieh’s fitness to drive, this case “falls squarely within the rationale of [the litigation privilege].”
– Pat Murphy
