Neurologist’s DMV seizure evaluation of patient privileged in barring patient-caused accident claim of injured party

Posted in: Summary Judgment, Tort Liability by Steven Vartabedian on

Plaintiff Cang Wang suffered critical injuries when struck by the vehicle driven by Amr Sarieh, who had lost consciousness at the wheel as a result of an epileptic seizure. Sarieh recently had his driving privileges restored based on an evaluation filed with the DMV by his treating neurologist defendant Christianne Heck, M.D., clearing him to drive. In Wang v. Heck (filed January 24, 2012, certified for publication February 12, 2012) 2012 DJDAR 2131, the Court of Appeal, Second Appellate District, Division Four, affirmed the trial court’s grant of summary judgment dismissing the lawsuit against Dr. Heck.

The litigation privilege is found in California Civil Code section 47, subdivision (b), and affords litigants and witnesses in judicial and quasi-judicial proceedings freedom of access to these processes without fear of being harassed by later lawsuits against them for testimony they give or steps they take in connection with those proceedings. (See Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The appellate court in Wang agreed with the trial court that defendant’s form evaluation presented to the DMV fell within this privilege and barred plaintiffs action.

The Court of Appeal rejected plaintiff’s argument that defendant’s negligent conduct was her failure to warn Sarieh not to drive, which was independent of her completion of the DMV evaluation form; failure to warn her patient was not a communication within the litigation privilege according to plaintiff.

The court cited Gootee v. Lightner (1990) 224 Cal.App3d 587, where the defendant psychologist had performed testing on plaintiff’s family in order to testify in child custody proceedings; claims against this court expert acting in a testimonial capacity are barred. Similar reliance is placed on Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 concerning the claim that a toxicologist was negligent in reaching findings as to cause of death. Because the gravamen of plaintiff’s claim in the instant case was Dr. Heck’s completion of the DMV evaluation form, the litigation privilege likewise extended to her conduct.

I have no squabble with the finding of the DMV communication as coming within the litigation privilege, and the sound public policy in protecting medical experts who comply with requests that they offer declarations concerning medical issues. If there were no such protection, people who, for example, have recovered from a medical condition that caused the loss of driving privileges, may be unable to get medical clearance to ever drive again due to doctors’ fears of potential future liability claims by then-unknown persons.

What surprises me a bit is the use of the Gootee and Block cases as sufficiently “similar.” Both of those cases involved court experts whose primary function was to testify in court. Dr. Heck served primarily as Sarieh’s treating physician. While that relationship may raise the issue of another privilege (physician-patient), that privilege would be possessed by patient Sarieh, who could waive it. The litigation privilege asserted here is possessed by Dr. Heck. There may be other evidentiary problems with a doctor being sued for failing to warn her patient of her physical limitations, but it does seem that the role of a treating physician is distinguishable from that of a court expert medical professional.

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