Pertinent Case Law
The majority of cases deal with employer-employee disputes over the Americans with Disabilities Act, civil rights, and related issues. However, a number of courts have addressed the medical exam and related physical qualification issues in the context of a personal injury action. CMV litigation It comes as no surprise that a motor carrier’s failure to properly qualify a driver, who then suffers some physical problem and causes an accident, may be liable for that breach.
Lewis v. City of Shreveport
In Lewis v. City of Shreveport, a bus passenger was injured when the city bus driver lost consciousness and wrecked. The driver had previously failed a medical exam due to diabetes, and the court found evidence that the employer knew or should have known of that finding. The court also found that the loss of consciousness was foreseeable, thus creating proximate cause. Interestingly, the driver in Lewis had obtained a limited, one year certification some years earlier, but failed to follow the physician’s instructions regarding follow-up testing and care. Even though it does not appear that the driver was insulin-dependent (which would have totally disqualified him from operating a CMV), the plaintiff was nevertheless able to state a cause of action:
Given the serious nature of Young’s health problems, the trial court could reasonably have found that Young and his employer were negligent in failing to follow the physician’s instructions to obtain further testing and evaluations which could have indicated whether Young’s diabetes was becoming worse over time.
Davis v. Nevarez
Thus, a driver’s one-time passage of an exam does not obviate the duty of the motor carrier to monitor the driver thereafter and make certain he remains fit to operate a CMV.
There is recent support for an amendment to add a claim for punitive damages, based on the physical condition of a driver, even though it may (hyper) technically be argued that no regulation was explicitly breached. In Davis v. Nevarez, motor carrier Swift Transportation had hired Nevarez, a driver with a long history of schizophrenia and bipolar disorder who was taking four different psychotropic medications. He had been issued a limited six-month medical examiner’s certificate due to these disorders. During the application process, it became apparent he was being untruthful about his prior employment, accident history, and other details. Despite these warning signs, Swift put him on the road, where he promptly ran another vehicle off a cliff.
When the facts regarding the hiring became known, the plaintiff moved to amend his complaint to allege punitive damages, which Swift opposed. In support of the motion to amend, the plaintiff produced evidence of Nevarez’s psychiatric disorders, the falsification of his employment application and related documents, his driving record (which featured five preventable accidents, including a turn-over in the last five years), and his employment history. The court focused on the driver’s psychiatric disorders and noted that his immediate supervisor was not informed of them. It further found that Swift Transportation failed to monitor his condition, despite the short six-month period of his medical certification. In an appropriately terse analysis, the judge observed: It is difficult to imagine, for the purposes of allowing an amendment to allege punitive damages, an applicant with more warning signs of a safety risk than those raised by Nevarez’s application. Plaintiff has provided sufficient evidence […] that Swift’s action in hiring Nevarez was outrageous and grossly negligent.
It should not be overlooked that the motor carrier involved is often a large and sophisticated entity, presumably utilizing a sophisticated driver qualification and monitoring staff. Another point referenced by the court in Davis was the motor carrier’s attempt to separate out each element of the claim for punitive damages, and to argue in the abstract, as it were, that taken individually the problems with the driver did not create a duty to take him off the road. The court readily dispensed with this parsing, as well, noting that:
Swift seems to suggest that the Court must look at each circumstance or allegation independently to determine if the independent action, or inaction, was sufficient to establish a basis for punitive damages. To view each fact in a vacuum would result in a distorted picture of the circumstances regarding Swift’s cumulative knowledge of Nevarez and the risks he posed as a commercial driver.
While Davis provides a path to punitive damages based, inter alia, on the physical and mental condition of a driver that possesses a valid medical certificate, it must be noted that other courts have dismissed claims for punitive damages in similar situations.
Hollywood Trucking, Inc. v. Watters
Another issue arising out of the context of the driver’s medical exam is the liability of a physician who improperly or negligently completes the exam. In Hollywood Trucking, Inc. v. Watters, the Indiana Court of Appeals affirmed a grant of summary judgment to a physician who quite obviously missed numerous signs that the driver was not physically qualified. There, the suit was brought not by an injured member of the public, but by the motor carrier who hired the driver. The driver had been injured on the job, and workers compensation benefits were at issue. The motor carrier argued that it would not have put the driver behind the wheel but for its reliance on the medical certification that, among other things, overlooked the “obvious scars” of prior back surgery. After the trial court dismissed the claim, the appellate court affirmed, finding that no duty extended to the motor carrier. The court went on to find that the motor carrier was not the “intended beneficiary” of the exam and, therefore, there was no “direct relationship” between the physician and the motor carrier.
Notably, the reasoning in Hollywood Trucking would not seem to apply to a claim against the examining doctor by one injured by the driver’s negligence. In this context, the court’s statement that the requirement of a medical certification was “implemented for the safety of the traveling public and not for purposes of insulating an employer from every claim of injury an employee sustains in the course of his employment” becomes important. The corollary to this statement is the fact that the public is the reason the requirement was imposed, and if done negligently, it is certainly foreseeable a member of the public could be injured.
Wharton Transport Co. v. Bridges
This was exactly the issue confronting the Tennessee Supreme Court in Wharton Transport Co. v. Bridges. Like Hollywood Trucking, the Wharton case involved a claim by a motor carrier against a physician who arguably was negligent in certifying a driver as physically able to operate a CMV. However, the motor carrier there was seeking indemnity or contribution from the physician after settling a case against it by a plaintiff injured as result of the driver’s negligence. During discovery in the plaintiff’s underlying lawsuit, the motor carrier learned that the driver had previously been declared 100% disabled and had eyesight which rendered him unqualified to operate a CMV, along with other disqualifying health issues. The wreck between the driver and the plaintiff involved circumstances that appeared to result from the driver’s poor vision.
The motor carrier settled the case and made a claim against the certifying physician. The trial court directed a verdict for the physician, but the Supreme Court of Tennessee reversed, finding “it was reasonably foreseeable that, if an examination fell below that standard and resulted in certifying an unfit person as physically qualified to drive a commercial vehicle, the probable consequences would be a highway accident causing loss or injury to a third party.” From there, the court took the short step of recognizing the motor carrier’s right to contribution or indemnity from the physician. Given that the courts in Hollywood Trucking and Wharton agreed in principle, but appeared to have reached different results due to the different theories of recovery presented by the respective plaintiffs in each case, the opinions are likely reconcilable.
Houston v. Bedgood
There is authority to the contrary, however. In Houston v. Bedgood, the evidence indicated that a wreck occurred after a truck driver had died suddenly from coronary heart disease, resulting in his uncontrolled CMV striking and killing another motorist. The parents and the estate of the motorist brought a medical malpractice action against the truck driver’s certifying physician and his treating cardiologist on the basis that neither doctor ordered the driver to refrain from driving despite knowledge of his heart condition.
As to the certifying physician, the plaintiffs alleged general negligence. The trial court granted summary judgment to the certifying physician, and the Georgia Court of Appeals affirmed, finding that the regulations did not contain a provision creating a duty of care in medical examiner physicians. The court likewise refused to find a common law duty of care, rejecting the plaintiffs’ argument that the certifying physician had a “special relationship” with the truck driver that required him to control the driver for the protection of the public.
Most concerning in the Houston opinion is that the court explicitly rejected the plaintiffs’ argument that the physician owed a duty of care to the decedent “on the basis of the public policy of protecting the motoring public as evidenced by the requirement for a DOT physical examination and medical examiner’s certificate certifying fitness to drive as an over-the-road carrier.”
Accordingly, while the Wharton holding (and the language in the Hollywood Trucking opinion that appears to be reconcilable with it) seems to establish a solid precedent for a claim against a physician who negligently certifies a driver, cases like Houston show that such is not necessarily the case.