Case Name: Moqadam v. The Permanente Medical Group, Inc., et al.
Case No.: 1-14-CV-259326

According to the allegations of the first amended complaint (“FAC”), on June 19, 2010, defendant Alma Valencia (“Valencia”) suffered a seizure while driving and lost control of her vehicle, injuring her passenger, plaintiff Ali Moqadam (“Plaintiff”). (See FAC, ¶¶ 17-19.) Valencia was treated for her seizure disorder from 2005 to the date of the accident by defendant Maryalice Ambrose, M.D. (“Ambrose”) of defendants The Permanente Medical Group, Inc., Kaiser Foundation Hospitals, and Kaiser Foundation Health Plan, Inc. (collectively, “Kaiser defendants”). (See FAC, ¶¶ 9-14.) In 2005, the Kaiser defendants reported the diagnosis of the seizure disorder, and based on a Driver Medical Evaluation (“DME”) completed by Ambrose, the Department of Motor Vehicles (“DMV”) suspended Valencia’s driver’s license. (See FAC, ¶ 10.) In 2007, Ambrose completed a new DME, and that based on the DME, the Department of Motor Vehicles (“DMV”) reinstated Valencia’s driving privileges. (See FAC, ¶¶ 11, 13.)

Plaintiff asserts that Ambrose knew or should have known that Valencia was still suffering from a seizure disorder and was non-compliant with anti-seizure medications that affected Valencia’s driving ability. (See FAC, ¶¶ 12, 14.) Plaintiff further asserts that Kaiser had a duty to report Valencia’s true and accurate medical condition to the DMV pursuant to Health and Safety Code § 103900. (See FAC, ¶¶ 22-23.) On April 7, 2014, Plaintiff filed the FAC, asserting causes of action for medical negligence and negligence. The Kaiser defendants and Ambrose demur to each cause of action, asserting that: the FAC alleges facts establishing that they complied with section 103900 and thus did not violate section 103900; they did not owe any duty to Plaintiff; license reinstatement is solely within the DMV’s discretion and thus Plaintiff does not allege causation; and, actions based on information in a DME form are barred by the litigation privilege.

Section 103900, subdivision (a) states that “[e]very physician and surgeon shall report immediately to the local health officer in writing, the name, date of birth, and address of every patient at least 14 years of age or older whom the physician and surgeon has diagnosed as having a case of a disorder characterized by lapses of consciousness.” (Health & Saf. Code § 103900, subd. (a).) Thereafter, the local health officer reports to the DMV “the name, age, and address, of every person reported to it as a case of a disorder characterized by lapses of consciousness… for the purpose of determining the eligibility of any person to operate a motor vehicle on the highways of this state.” (Health & Saf. Code § 103900, subds. (b) and (c).)

In a case cited by the Kaiser defendants, Wang v. Heck (2012) 203 Cal.App.4th 677, the plaintiffs were injured when they were struck by a car driven by Sarieh, who suffered an epileptic seizure and lost consciousness. (Id. at p.679.) Sarieh was treated by a neurologist, Christianne N. Heck, who completed a DME at Sarieh’s request, and was subsequently interviewed by the DMV hearing officer. (Id. at pp.679-681.) Relying on the DME and Heck’s statement that “everything is good,” the officer decided to lift the suspension of Sarieh’s license. (Id. at p.681.) Less than one month after the lifting of the suspension, Sarieh had a seizure, lost consciousness and injured the plaintiffs. (Id.) Concluding that all of the plaintiffs’ cause of action were premised on Heck’s completion of the DME, the Wang court determined that the claims were barred by the litigation privilege, stating:

We conclude that the litigation privilege applies to Heck’s September 2, 2008 communication to the DMV. None of appellants’ causes of action can stand without relying on Heck’s completion of the DMV medical evaluation form. We therefore conclude that all of appellants’ causes of action are barred by the litigation privilege….

Similar to the respondents in Gootee, Heck was a professional whose role as to the DMV hearing was limited to evaluating Sarieh’s fitness for driving. [Citation.] Although Heck did not complete the DMV evaluation form for purposes of testifying in judicial proceedings, the form was used in the DMV hearing in order for the DMV hearing officer to determine whether to reinstate Sarieh’s license. Thus, the form was used in an administrative proceeding, which is a “‘truth-seeking proceeding[]’” for purposes of applying the litigation privilege.

There is no question that Heck was a participant authorized by law to complete the DMV evaluation form and that the form was completed in order to achieve the object of the DMV hearing—that is, to determine Sarieh’s fitness for driving. [Citation.] Because Sarieh’s license had been suspended, he needed Heck to complete the evaluation form in order for the DMV to determine whether the license should be reinstated. There can be no dispute that the form had “‘some connection or logical relation’” to the DMV hearing. [Citation.] All four requirements of the litigation privilege accordingly are satisfied.

(Wang, supra, 203 Cal.App.4th at pp.684-685.)

In opposition, Plaintiff argues that “Kaiser’s argument ignores the fact that… Plaintiff has also pled in the alternative that Kaiser failed to provide any Driver Medical Evaluation whatsoever in 2007 (see FAC at ¶ 22).” However, Plaintiff’s argument disregards her own allegation that Ambrose had previously completed a DME in 2005 that resulted in the suspension of Valencia’s license. If Ambrose failed to complete a DME whatsoever in 2007, Ambrose’s prior report in 2005 constituted compliance with section 103900. By its words, section 103900 does not impose a continuing duty to repeatedly file DMEs after the initial DME. Therefore, if Plaintiff alleges that the Kaiser defendants failed to complete a DME whatsoever in 2007, the facts of the FAC indicate that the Kaiser defendants complied with section 103900; alternatively, if Plaintiff alleges that the Kaiser defendants negligently completed a DME in 2007, Wang , supra, clearly states that such a claim would be barred by the litigation privilege.

The demurrer to the FAC is SUSTAINED without leave to amend. The Court will prepare the order. The Kaiser defendants shall prepare a judgment of dismissal after service of notice of entry of this order.