Author: Matthew McQuillan, J.D.
Physicians and other medical professionals choosing to perform physical examinations for commercial driver applicants pursuant to the Department of Transportation's (hereinafter, "DOT") regulations have potential liability exposure of which they should be aware. While cases are not often pursued against examiners, practitioners must understand their potential liability and how best to protect themselves. Regardless of the type of case, a medical professional's best defense is to perform the medical examinations within the strict guidelines provided by the DOT and using the best medical practices possible on every case.
I. Negligence Concepts
While state laws may vary, cases brought against medical professionals resulting from examinations are often considered general negligence cases and not medical malpractice. This is likely because the examining professionals are not medically treating the examinee. When asserting a negligence case, a plaintiff must prove four elements: (1) the existence of a duty of care, (2) a breach of that duty, (3) that the breach was the incident's proximate cause, and (4) that the plaintiff was damaged or injured. If any of the elements are missing, the plaintiff's case fails.
Potential liability exists wherever a medical professional owes a duty of care. In practice, a judge typically determines if a duty exists rather than a jury. If that duty exists, the jury will then decide whether a breach occurred and if that breach was an accident's proximate cause. Legal cases in which an examiner may be involved, either as a defendant or a witness, include: (1) accidents where third parties are injured, (2) suits by a driver's employer for work related injuries, and (3) disability discrimination actions.
II. Third Party Injury Suits
The obvious case involving DOT physicals is a lawsuit brought by injured third parties after an accident with a commercial driver. Plaintiffs in these cases, when suing examiners, typically allege the examining doctor owed and breached a duty to perform the DOT physicals with reasonable competence and skill. A Tennessee case, Wharton Transport Corp. v. Bridges, 606 S.W.2d 521 (Tenn. 1980), addresses this situation in an indemnity suit brought by a driver's employer, Wharton Transport, against the driver's examining physician, Dr. Bridges. While every jurisdiction has distinct rules and procedures, this case is an example of how an examiner may be liable. Wharton brought suit to recover approximately $400,000 it previously paid to settle claims resulting from an accident in which its commercial driver, Lawson, was involved. In 1972, Lawson applied for a driving position with Wharton. Wharton sent Lawson to Dr. Bridges for a DOT physical examination. Dr. Bridges determined Lawson was qualified and gave him the appropriate certificate of approval.
Shortly after being hired and trained, Lawson was operating a Wharton vehicle on a cross country trip. At approximately 4:00 a.m., he pulled off the highway and collided with a parked station wagon. The accident resulted in the death of one child and severe injuries to three others. During Wharton's settlement negotiations with the claimants, it learned that, prior to his employment, Lawson had severely defective vision and other doctors had determined him to be 100% physically disabled. Lawson's treating physicians testified he suffered from the following problems when he applied at Wharton: (1) 95% loss of vision in his left eye and unspecified blurred vision in his right, (2) severe left knee osteoarthritis, (3) severe but unspecified right knee and ankle problems, (4) chronic degenerative disc disease affecting his neck and lower back resulting in neck and head maneuverability problems, and (5) chronic fatigue, exhaustion, and depression. Dr. Bridges did not list any of these conditions on his signed examination sheet. During testimony, Dr. Bridges also admitted he would have discovered these disabilities had he exercised a reasonable degree of medical care and skill. He also admitted Lawson's vision defects alone would have disqualified him under the DOT's standards.
The court determined the accident and Wharton's resulting indemnity case were reasonably foreseeable when Dr. Bridges completed the examination. Since the accident was a reasonably foreseeable consequence of failing to properly perform the examination, Dr. Bridges owed a duty of reasonable care. The forms Dr. Bridges used listed safety as the physical examination's purpose. The court also noted Dr. Bridges derived a large portion of his income from these examinations, making him familiar with their purpose and consequences. There was also sufficient evidence by which a jury could determine Lawson's conditions proximately caused the accident.
While this case is an extreme example, it is certainly possible less egregious mistakes during a DOT examination could expose a medical professional to liability if an accident occurs. In order to mitigate this risk, it is critical examiners follow the DOT's examination protocol. In addition, detailed notes and consistent examination procedures will demonstrate proficiency and skill in the event records are examined. All of these make it less likely an examiner will be named in a third party's lawsuit.
III. Suit by the Driver's Employer
Another potential area of liability is a lawsuit brought by a driver's employer against an examiner for the driver's work related injuries. This situation is less likely to occur but further reinforces the need for proper examination procedures. In Hollywood Trucking v. Watters, 893 N.E.2d. 3 (Ill. App. 2008), a commercial vehicle driver hired a physician, Dr. Watters, to perform the required DOT physical. During the examination, the driver advised Watters he had no prior back problems or surgeries. After certification, Hollywood Trucking hired the driver. Sometime later, he fell and injured his back at work. After the company and driver resolved the workers' compensation claim, Hollywood Trucking sued Dr. Watters alleging he improperly performed the examination by not noticing the driver's scars from a prior back surgery. If noticed, Hollywood alleged Dr. Watters would not have certified the driver as medically compliant with the DOT regulations. Without certification, Hollywood would not have hired the driver and the claim would have been avoided.
The court did not determine whether or not Dr. Watters should have discovered the prior back condition and instead found the doctor owed no duty of care to Hollywood Trucking. Because the driver retained Dr. Watters to perform the examination, Hollywood and Dr. Watters did not have a contractual relationship on which to base a duty of care.
The court also addressed the potential for liability if Hollywood had directly retained Dr. Watters. It noted the purpose of the medical examination was to determine whether a specific condition or illness would interfere with the driver's ability to operate a commercial vehicle on the highways, not to determine the likelihood of an on the job injury. This indicates a doctor would not likely owe a hiring company a duty of reasonable care in that situation. As an additional evidentiary matter, the court also held there was no evidence the company relied on the medical certification when it hired the driver.
While it appears difficult for a hiring company to maintain a case against an examiner for the driver's injuries based on this case, every jurisdiction and fact pattern are different. The Hollywood Trucking case is relatively recent and the holding, while persuasive, does not necessarily apply to every situation or jurisdiction. As with the above section addressing third parties, the best protection an examiner has is to perform the examination completely and competently. There is always the possibility an applicant will misrepresent conditions on history forms and during the examination. A case would then hinge on whether a physician following the DOT guidelines and using best practices should have discovered the omission or false statement. Again, following the protocol the DOT prescribes is critical.
IV. Involvement in Disability Discrimination Cases
Most of the existing cases involving driver examinations are not likely to involve examiners as a party, but could involve them as witnesses and implicate their records. When an applicant fails the medical examination and is not hired, that applicant could attempt to sue the hiring company under federal and state disability statutes. The examiner's records and potentially their testimony could be part of this case. The EEOC v. Texas Bus Lines, 923 F.Supp. 965 (S.D. Tex. 1996) case is an example of a suit under the Americans with Disabilities Act. A company sent a driver to an outside physician for a DOT exam, which the applicant did not pass due to morbid obesity. The doctor claimed the driver's weight made him less agile in the event of an accident. The doctor did not conduct any agility evaluation or test for other potential conditions causing the weight, such as thyroid problems. The doctor noted the driver waddled to the examination room and was slow getting out of a chair. The lack of medical certification caused the company to reject the driver's application, resulting in the suit. The court criticized the examiner and noted the DOT regulations did not list morbid obesity as a disqualifying condition in and of itself. The court also took issue with the subjective movement problems the examiner mentioned. The examiner did not ask any questions to determine if temporary fatigue was the cause rather than the permanent mobility problems the doctor assumed. Based on the medical opinion not being consistent with DOT standards, the court held the company was on notice the examination was not compliant and should have sent the driver for a re-exam. While an examiner is not a party, a court's criticism, such as occurred in this case, could affect future business with commercial driving companies.
As emphasized, compliance with DOT's regulations and standards is critical for not only an examiner's liability, but their future business and reputation. In Dept. of Civil Rights v. A & C Carriers, 403 N.W.2d 586 (Mich. App. 1987), a driver made a similar disability claim against an employer based on state law. Here, the doctor performing the original DOT exam and a second physician reviewing the records both agreed the applicant's spinal problem precluded certification. Since the spinal problem was directly related to the applicant's ability to perform the job based on DOT standards, the court held the claim was not valid.
In the event of any accident, examination records are likely to be scrutinized by the driver's employer, along with any injured party's attorneys. As discussed, the primary defense an examiner has is to follow DOT guidelines on every examination. This, combined with detailed examination records showing DOT compliance, will help protect an examiner if an investigation occurs. To help an examiner comply with ever changing regulations, it is critical they attend a proper certification course and maintain that certification with the DOT through continued education courses. The DOT also has a Medical Expert Panel (hereinafter "MEP") of which examiners should be aware. The MEP provides medical expert opinions for the DOT on medical standards and reviews research for future regulation changes.
Since there is a potential difference between liability cases and medical malpractice, an examiner would be wise to contact their insurer or agent to discuss their coverage and any potential limitations before conducting DOT examinations. As with any legal situation, every jurisdiction has different rules, standards, and regulations. This article is not meant to examine every potential factual scenario or application of law and is not to be considered legal advice. Any medical professional with concerns should consult with an attorney licensed in their jurisdiction to discuss protections from potential liability.