The Charlotte Observer reported yesterday about a federal lawsuit which has been filed by six North Carolina drivers with disabilities against the North Carolina DMV. The drivers allege that the DMV’s Medical Evaluation discriminates against them because of their disabilities, even though they are safe drivers.
The statutory provision pursuant to which the DMV has the authority to refuse to license a person with certain physical or mental disabilities or diseases is G.S. 20-9(e) which states that
The Division shall not issue a driver’s license to any person when in the opinion of the Division such person is afflicted with or suffering from such physical or mental disability or disease as will serve to prevent such person from exercising reasonable and ordinary control over a motor vehicle while operating the same upon the highways, nor shall a license be issued to any person who is unable to understand highway warnings or direction signs.
Subsection (g) of G.S. 20-9 permits the DMV to license a person covered by subsection (e) under the following conditions:
(1) The Division may issue a license to any person who is afflicted with or suffering from a physical or mental disability set out in subsection (e) of this section who is otherwise qualified to obtain a license, provided such person submits to the Division a certificate in the form prescribed in subdivision (2). Until a license issued under this subdivision expires or is revoked, the license continues in force as long as the licensee presents to the Division a certificate in the form prescribed in subdivision (2) of this subsection at the intervals determined by the Division to be in the best interests of public safety.
(2) The Division shall not issue a license pursuant to this section unless the applicant has submitted to a physical examination by a physician or surgeon duly licensed to practice medicine in this State or in any other state of the United States and unless such examining physician or surgeon has completed and signed the certificate required by subdivision (1). Such certificate shall be devised by the Commissioner with the advice of qualified experts in the field of diagnosing and treating physical and mental disorders as he may select to assist him and shall be designed to elicit the maximum medical information necessary to aid in determining whether or not it would be a hazard to public safety to permit the applicant to operate a motor vehicle, including, if such is the fact, the examining physician’s statement that the applicant is under medication and treatment and that such person’s physical or mental disability is controlled. The certificate shall contain a waiver of privilege and the recommendation of the examining physician to the Commissioner as to whether a license should be issued to the applicant.
(3) The Commissioner is not bound by the recommendation of the examining physician but shall give fair consideration to such recommendation in exercising his discretion in acting upon the application, the criterion being whether or not, upon all the evidence, it appears that it is safe to permit the applicant to operate a motor vehicle. The burden of proof of such fact is upon the applicant. In deciding whether to issue or deny a license, the Commissioner may be guided by opinion of experts in the field of diagnosing and treating the specific physical or mental disorder suffered by an applicant and such experts may be compensated for their services on an equitable basis. The Commissioner may also take into consideration any other factors which bear on the issue of public safety.
(4) Whenever a license is denied by the Commissioner, such denial may be reviewed by a reviewing board upon written request of the applicant filed with the Division within 10 days after receipt of such denial. The reviewing board shall consist of the Commissioner or his authorized representative and four persons designated by the chairman of the Commission for Public Health. The persons designated by the chairman of the Commission for Public Health shall be either members of the Commission for Public Health or physicians duly licensed to practice medicine in this State. The members so designated by the chairman of the Commission for Public Health shall receive the same per diem and expenses as provided by law for members of the Commission for Public Health, which per diem and expenses shall be charged to the same appropriation as per diems and expenses for members of the Commission for Public Health. The Commissioner or his authorized representative, plus any two of the members designated by the chairman of the Commission for Public Health, constitute a quorum.
The example in the Charlotte Observer’s article of people that this statute should typically apply to is people with diminishing physical and cognitive capabilities due to age. However, this statute might also reasonably apply to others with chronic medical problems, such as epilepsy or heart problems.
If a driver with a known medical problem were involved in an accident because of an episode related to their medical issue, would they be considered negligent? If another person injured in an accident with such a person were to bring an action against the driver, the driver could raise the defense of sudden incapacitation. To successfully raise this defense, the defendant must prove that
(i) the defendant was stricken by a sudden incapacitation, (ii) this incapacitation was unforeseeable to the defendant, (iii) the defendant was unable to control the vehicle as a result of this incapacitation, and (iv) this sudden incapacitation caused the accident.
Let’s suppose that you are involved in an accident with a person who had an epileptic seizure, lost control of their car and hit your car, causing injury to you. You file an action against them claiming damages for your injuries. The defendant raises the defense of sudden incapacitation. Will this defense be successful?
The defense of sudden incapacitation typically turns on the issue of foreseeability. If the defendant had never had an epileptic seizure before and had no idea that he suffered from epilepsy, his sudden incapacitation would be unforeseeable. If the defendant knew he had epilepsy and had suffered from frequent and recent seizures such that his doctor cautioned him against driving, his sudden incapacitation would not be unforeseeable.
But what if the defendant knew he had epilepsy but thought it was controlled with medication such that his doctor had signed a certificate stating that it is a not “a hazard to public safety to permit the [defendant] to operate a motor vehicle” in accordance with G.S. 20-9(g)? In this case, it is arguably unforeseeable that the defendant would suffer from sudden incapacitation while driving.
If you have been injured in a car accident, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450 to discuss your options.