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In order to obtain a Class B driver’s license, and be able to drive a passenger bus, a prospective driver in California must obtain medical certification of his or her ability to do so. As prescribed by Vehicle Code Section 12804.9(a)(2)(A), this is a pre-condition to employment in that capacity.

In a recent case encountered by this office, a physician examined a bus driver, who was later involved in an accident causing catastrophic injuries to our client. The examinations, on two separate occasions and two years apart, were each for the purpose of providing the driver her Section 12804.9 medical certificate. Both times the physicians issued the required certificate.

In our litigation, issues arose as to whether Plaintiff’s counsel could, at deposition, question the physician about the mental health background of the driver (including her history of mental illness, duration thereof, treatment therefore, etc.) as reported to him at these two pre-licensure examinations.

Title 13, section 28.18 of the California Code of Regulations sets forth the minimum medical requirements of class A, B and commercial class C drivers; in doing so, section 28.18 adopts the requirements set forth in federal law, 49 Code of Federal Regulations Part 391.41, for commercial drivers. The federal regulation sets out at length the physical and mental qualifications required to drive a commercial vehicle. Included among those criteria is subdivision (b)(9), which requires that the driver: “Has no mental, nervous, organic, or functional disease or psychiatric disorder likely to interfere with his/her ability to drive a commercial motor vehicle safely.”

Prior to a medical certificate examination, a prospective licensee and driver fills out a form that contains background health questions, including questions relating to psychiatric health and background, and delivers it to the examining physician. That form, entitled “Medical Examination Report For Commercial Driver Fitness Determination,” is required by 49 C.F.R. § 393. A specimen is contained in the regulation, showing (among other things) the portion of the form to be filled out by the applicant. As noted in the portion of 49 C.F.R. § 391.41(b)(9) quoted above, applicable law sets forth the necessity that the examinee have no mental or psychiatric disorder likely to interfere with his/her ability to drive a commercial motor vehicle safely. There is also a warning set forth on the Form that: “Emotional or adjustment problems contribute directly to an individual’s level of memory, reason, attention and judgment,” facilities which impact driving ability. There is also language in the Form, under the heading “The Driver’s Role,” which states that: “In addition, a driver must have the perceptual skills to monitor a sometimes complex driving situation, the judgment skills to make quick decisions when necessary, and the manipulative skills to control an oversize steering wheel, shift gears using a manual transmission, and maneuver a vehicle in crowded areas….”

In the case which this office encountered, the issue was whether the driver of the bus was impaired in her physical abilities and judgment skills at the time of the accident, and whether that impairment contributed to the causation of the incident. In deposition testimony, the examining physician agreed that the use of a psychiatric medication might indicate that a prospective driver had an underlying condition that would disqualify him or her from obtaining the certificate. He acknowledged that information as to such medications is called for on the “Health History” portion of the Form, which the examinee completes. In fact, he acknowledged that the examiner is to consider all of the medications taken by the examinee, and determine if any interfere with driving. The medical examiner is, according to the Form, instructed to consider and discuss with the examinee: “the side effects and hazards of these medications while driving.”

In light of these requirements, the examining physician testified that a prospective licensee should indicate, on the “Health History” portion of the Form that he or she fills out prior to the examination, whether he or she has a nervous or psychiatric disorder. The physician testified he had indeed obtained the completed “Health History” portion of the Form from the driver for use in each examination.

Legal issues arose as to questions asked at the examining physician’s deposition. Those questions included several related to the driver’s psychiatric condition: whether anything in her examinations revealed she was taking any medication for an emotional or psychiatric condition; whether she checked the box on the required form with respect to a nervous or psychiatric disorder or condition; whether she indicated she had been taking a drug for psychiatric treatment, and whether she was then taking any such drug; whether the examining physician and the driver had any discussions regarding a nervous or mental condition; and whether the physician had any documentary evidence of psychiatric treatment at the time he saw her, or thereafter.

As to each such query, counsel for the defendant driver and her employer tendered an objection on the grounds of the driver’s privacy rights; after each such query and objection, the examining physician refused to answer. A typical question, objection, and response by the deponent at issue would be:

    Q: Does your review of the December, 2011 examination records reveal that you had any discussion with Ms. Driver regarding a nervous or mental condition?
    DEFENSE COUNSEL: Objection. Privacy rights of Ms. Driver.
    PHYSICIAN COUNSEL: Based on the objection of the attorney for Driver that the question invades her privacy, I have to instruct examining doctor not to answer the question.

As to the questions here at issue, the examining physician indicated that he had the ability to answer the question, if he were not instructed by his counsel not to do so. Plaintiff’s counsel contended the result of the physician’s failure to answer these queries was that the investigation into this critical issue (the driver’s impairment) was effectively thwarted, contrary to applicable law.

The case settled before a motion to compel the examining physician’s responses to these queries, and reasonable follow-up questions on like subject matter, could be adjudicated. But the issues raised are of broader interest, as to which this article hopes to enlighten.

Plaintiff claimed entitlement to the physician’s discovery responses at deposition because: the driver was not entitled to assert either privilege or a right to privacy under applicable law; no physician-patient privilege attached because she was not being “treated” for an illness or injury; she did not have a reasonable expectation of privacy under these particular circumstances, nor would these disclosures constitute a serious invasion of privacy; and in any event, balancing competing interests of the litigants as the law requires, the physician’s response to the questions at issue should be required.

In the event this issue was brought before a law and motion judge, Plaintiff’s first claim would be that the evidence sought was discoverable. The extent of the driver’s impairment at the time of the incident, due to either psychiatric impairment or side effects of drugs or medications taken to treat such conditions, is evidence that is not only discoverable, but will be admissible at trial. Such evidence is directly relevant to the driver’s degree of culpability in this incident. See Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 334 (allegedly intoxicated auto driver plaintiff struck parked boat trailer, and jury rendered determination of comparative fault), stating: “Whether plaintiff was intoxicated on the evening of the accident was a disputed question of fact. There is no question that there was sufficient evidence from which the jury could have found that plaintiff was driving while intoxicated at the time of the collision.” See also, Sagadin v. Ripper (1985) 175 Cal.App.3d 1141 (issue of plaintiff’s intoxication relevant evidence as to his fault); Blake v. Moore (1984) 162 Cal.App.3d 700 (same).

In fact, evidence of a driver’s mental condition (or a driver’s potential impairment from medication) is deemed so universally significant in liability inquiries that there are two form interrogatories on the subject in California, contained in “Form Interrogatories – General,” Judicial Council Form DISC-001. Form Interrogatory 2.12 inquires: “At the time of the INCIDENT, did you … have any… emotional, or mental disability or condition that may have contributed to the occurrence of the INCIDENT?” Form Interrogatory 2.13 also asks: “Within 24 hours before the INCIDENT did you …take any of the following substances: …other drug or medication of any kind (prescription or not)?” Thus, evidence arising from (or relating to) the driver’s interaction with the examining physician is relevant evidence: what did she disclose regarding mental conditions, or pharmaceutical intake, that might have affected either her certification or her driving performance on the date of the incident; were those disclosures true or false, in light of other evidence; what were the physician’s responses and queries to the driver; and what did medical records available to the doctor reveal in that regard?

Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, in part quoting Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987, discusses a situation like this one where a privacy objection has been interposed to a discovery request. The Puerto court first notes: “… our Supreme Court has often stated that discovery statutes are to be construed broadly in favor of disclosure, so as to uphold the right to discovery whenever possible. [Citation omitted.] ‘Matters sought are properly discoverable if they will aid in a party’s preparation for trial.’” Puerto, supra, 158 Cal.App.4th at 1249.

The Puerto court next cites to the California Supreme Court’s discussion in Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370. In evaluating the discovery order, the court notes that the Supreme Court in Pioneer: “… applied the framework set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill), which sets forth prerequisites to invoking privacy rights.” Puerto, supra, 158 Cal.App. 4th at 1250-1251.

Under Hill, the first prerequisite to a privacy assertion is ascertaining whether a claimant possesses a “legally protected privacy interest.” Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact. Trivial invasions do not create a cause of action. Ibid.

If there is a reasonable expectation of privacy and the invasion of privacy is serious, then (and only then) the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information. Puerto, 158 Cal.App.4th at pp. 1250-1251.

Plaintiff would contend that a motion to compel should be granted, at the outset, because the driver could not meet the second prerequisite to asserting a right of privacy: that the claimant have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. Here, there was no such expectation.

The doctor’s examination of the driver was conducted to meet a state requirement to obtain a license to drive. The driver did not pay for the examination: her employer did. The medical certificate card, issued by the examining physician, states that medical record of the examination is part of the governmental record of licensure: “A complete examination form with any attachment embodies my findings completely and correctly, and is on file in my office.” There is no reasonable expectation of privacy under these circumstances: the medical data underlying the physician’s action on the certificate is merely incidental to the certificate and the driver’s license, a privilege granted by the State.

Moreover, the driver was not seeing the doctor as part of a physician-patient relationship, in order to seek care or treatment for an ailment or injury. Therefore, she had no reasonable expectation of privacy under these circumstances. Cf., City & County of San Francisco, 37 Cal.2d at 231, finding that such contacts are insufficient to create physician-patient privilege: “That privilege cannot be invoked when no treatment is contemplated or given.” This fact mitigates against a judicial finding of an expectation of privacy for the same reason.

Separately and distinctly, Plaintiff would claim that the driver could not meet the third prerequisite for invoking the right of privacy: the invasion of privacy here at issue is not serious in nature, scope or potential impact. What is sought here merely a trivial invasion of her privacy interests.

Finally, Plaintiff would claim that the motion should be granted because the “competing or countervailing interests” of Plaintiff far outweigh the driver’s asserted privacy rights. This was a disputed liability case. Factual claims related to whether the bus driver’s vehicle operation (including her speed, reaction time, and driver acuity) met the standard of care would be dispositive of the outcome of Plaintiff’s claims. Ascertaining whether or not the driver was an impaired driver at the time of this incident was therefore critical to determining her credibility, interpreting the physical evidence, and ascertaining the true facts of the incident. These are countervailing interests which justify discovery, in spite of claimed privacy interests.

While the issue may be a close one, it is our conclusion that discovery of the driver’s examination should, and is likely to be, permitted. On balance, the Plaintiff’s need for this information exceeds the driver’s claims of privacy.

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