Posts Tagged ‘driving’

Doctor’s Report to California DMV Does Not Violate Privacy Rights

DECEMBER 5, 2016 VOLUME 23 NUMBER 45
You might have wondered about this from time to time — we have, too. If a patient really shouldn’t be driving, is his or her doctor really able to write to the Motor Vehicle Division to report the patient’s condition? Wouldn’t that be a violation of the patient’s privacy rights?

A recent California case says no — the doctor is not liable for any breach of privacy, at least not under California law. The facts of that case are interesting, and instructive.

Mitch McIntyre (not his real name) was trying to establish that he was disabled, so that he could qualify for Social Security Disability payments. He visited several physicians over an almost ten-year period, but his primary care physician was Dr. Ann Kim. His diagnoses included diabetes and unspecified cognitive deficits.

During one office appointment, Mitch told Dr. Kim that he needed to renew his commercial driver’s license. He told her that he had applied to drive a school bus, and asked if she would “sign off” on his medical certification.

Over previous years, while he was working as a bus driver, Mitch had complained to Dr. Kim and other physicians that he didn’t want to “babysit” his passengers. He had confessed to his physicians that he didn’t always follow the routes specified by his employer — he preferred his own routes. On one occasion, he acknowledged, he had taken a group of children from San Diego, California, to Tijuana, Mexico — though that was not their actual destination.

But when Mitch told Dr. Kim that he was about to start driving school buses, that was too much for her. She called Mitch, told him that she wouldn’t be signing his medical certification form, and added that, in fact, she was considering sending a letter to alert the California DMV to her concerns about his impulsivity and poor judgment. Mitch told her that he did not want her communicating with the DMV at all, and that he did not agree with her reporting her concerns.

Dr. Kim thought about her dilemma for several weeks, and then wrote a letter to DMV. Her letter reported that Mitch “is functionally illiterate, lacks the capacity to set limits on himself and fails to understand the consequences of his behavior.” She added that Mitch’s problems appear to be “the result of mild congenital or developmental brain damage that has not only affected his cognitive skills but more importantly has impaired his judgment, impulse control, insight, forethought and ability to introspect.”

Mitch’s commercial and regular driver’s licenses were suspended almost immediately after the DMV received Dr. Kim’s letter. His employment was suspended, and he was ordered to get his licenses reinstated if he wanted to continue to drive buses. He managed to get his regular license restored quickly, but it took him three months to get his commercial license reinstated — though he did manage to do so. Because he failed to meet his employer’s deadline, however, he lost his bus-driving job.

Mitch then sued Dr. Kim and her employer, alleging that she had violated state privacy laws and the federal HIPAA (Health Insurance Portability and Accountability Act) law by disclosing his medical information to DMV. The defendants moved to dismiss Mitch’s complaint, arguing that they were permitted to give such information to the Department of Motor Vehicles. While the trial court did not immediately dismiss, it ultimately threw out Mitch’s case after he had put on evidence at his trial; the defendants were not even required to put on any case.

Mitch appealed to the California Court of Appeals, which affirmed the trial judge’s dismissal. Applying California’s version of the privacy laws, the appellate judges ruled that Dr. Kim’s disclosure was specifically authorized to report her concerns about Mitch’s ability to drive. According to the appellate court, California has a policy of encouraging people (including but not limited to physicians) to report the possibility of unsafe driving — and that supported Dr. Kim’s authority to disclose medical information for the limited purpose of calling Mitch’s ability to drive into question. McNair v. City and County of San Francisco, November 22, 2016.

Mitch and Dr. Kim, of course, were operating under California’s state law — and the national HIPAA rules. As the court acknowledged in its opinion, HIPAA does not give Mitch (or any other individual) any right to bring a breach-of-confidentiality suit against a medical provider. That means that state law will be the most important consideration in addressing similar claims.

Arizona has law that seems like it would resolve a dispute similar to Mitch’s (if it had been subject to Arizona law, that is). Arizona Revised Statutes section 28-3005 spells out that:

Notwithstanding the physician-patient, nurse-patient or psychologist-client confidentiality relationship, a physician, registered nurse practitioner or psychologist may voluntarily report a patient to the department who has a medical or psychological condition that in the opinion of the physician, registered nurse practitioner or psychologist could significantly impair the person’s ability to safely operate a motor vehicle.

In fact, the Arizona Motor Vehicle Division has a web page devoted to the forms and procedures for physicians — and any regular citizens — to report unsafe drivers or concerns about anyone’s ability to drive. Physicians are encouraged to use the form on the MVD website; other concerned citizens can download a form to make their own reports, as well.

Driving, Aging and Dealing With Family Dynamics

APRIL 1, 2013 VOLUME 20 NUMBER 13
Driving. It’s an issue for seniors. And their families.

According to the Centers for Disease Control, drivers over age 75 are at particular risk for fatal accidents, and that risk continues to grow as those older drivers age. The CDC is candid: it’s hard to tell how much of that is related to increased frailty and susceptibility to injury, and how much is the result of worsening vision and slower reaction times. Ultimately, though, it doesn’t really matter: fatality rates are much higher for older drivers (on a per-mile-driven basis) than even for brand-new drivers under age 20.

When is it time to stop driving, and who is best able to tell the time has arrived? Or are those even the right questions to be asking? If you have an older family member, or you are aging yourself (yes, we know that that includes every reader), then you should be concerned about the issue. Fortunately, there is some help available.

First, let’s wrestle with what may be the biggest problems in encouraging a senior to drive less, or to stop driving: there is plenty of emotion and psychology involved, and there are too-few alternatives. It is seldom good enough to just insist on your parent or spouse giving up the car keys. You need to consider the problem from their perspective.

In our modern American culture, we tend to identify with our automobiles. I may favor a flashy, brightly-colored muscle car; you may prefer a solid, responsible and reliable set of wheels. My brother, on the other hand, might be a nut about saving gas. All three of us are making statements about our interests, preferences and personalities when we pick out a car. There is little else which says so much about us and simultaneously provides so much freedom.

So if you think I ought to stop driving, I am going to be very resistant. At root, my objections might be very practical — it’s too hard to get errands done, I don’t want to rely on anyone else, I’m not really driving that much any more anyway — but those objections will be more forceful because you are getting too close to my sense of self.

Before you tackle restricting the driving of an aging family member, it would be wise to review the arguments, prepare some strategies, and figure out what has worked for others. The good news: there are several good resources to help you with that project.

Let’s start with the AARP, which has done extensive work on driver safety and education. The AARP’s focus on aging drivers is unsurprising, but you may be surprised at how well they have analyzed the issue and how much material is available. Start with the online seminar called “We Need to Talk.” It will take about an hour (a little more if you stop along the way to scratch out questions or approaches, or if you re-review some sections). You may be surprised at how well it helps prepare you for your talk with a family member about your concerns.

Maybe what you really want is a review of driving skills, or a refresher course with emphasis on abilities that change over time. The AARP has some help there, too — it offers a link to driver safety courses for seniors. A quick check as we wrote this found three courses within a few miles of the Fleming & Curti, PLC, offices scheduled in the next month. Plus there’s an online version of the course, too.

Maybe you’re past this point with your family member. Can you disable the vehicle, force a review of their driving ability, or take stronger action? Yes, but first look at two publications produced by AARP, MIT’s AgeLab and The Hartford Insurance Company. One, “We Need to Talk,” is the basis for the AARP seminar described above. You can also order printed copies if you want to leave one lying around, or share with siblings or other family members. Copies are free, and you’ll get them in the mail in just a couple of days. While you’re online, you might also download or order “At the Crossroads,” another excellent resource offered by the same consortium.

Arizona drivers’ licenses are valid until age 65 without retesting (you do have to have your picture taken at least every twelve years or so). After 65 a driver has to take a vision test at least every five years, but there is no automatic retest for driving ability.

There is, however, one way to get a family member retested: any one who is concerned about driving ability can request a review for a family member, neighbor, patient or client (many of the requests are filed by doctors and other medical and social service professionals). You can initiate a review by filing a form 96-0469 with the Motor Vehicle Division; after looking at your description, MVD may require a doctor’s report and/or a driving test.

Are you worried about the possibility that you might cause this kind of concern, and force your own children to take similar steps? We have one suggestion for you to head off a similar scenario for your own future: talk to your family, and maybe even consider signing an agreement with your family about driving. You can give someone — perhaps the same person you name as agent on a health care power of attorney, perhaps someone else — instructions to tell you when you need to stop driving, and the power to take steps to stop you from putting yourself and others at risk.

The reality: such an agreement probably has no legal validity. But it could give your chosen family member the moral and psychological power they need to tackle a very difficult problem when you are unable to make the decision for yourself. At Fleming & Curti, PLC, we include such a power in most of our health care powers of attorney; if you would like to sign an agreement on your own, there’s one in the back of the “At the Crossroads” booklet described above. There is also a separate copy of such an agreement on The Hartford’s website; you can download it, review it and sign it on your own. But we really favor talking with your family about it.

A final thought: at least once a week or so, we have a client tell us “I’ll be the first to know when I need help.” Sadly, that has not been borne out by our experience at all.

Dealing With the Older Driver: Driving Skills Assessments

MARCH 24, 2003 VOLUME 10, NUMBER 38

Elder Law Issues has devoted several recent weeks’ articles to some of the problems involving aging drivers. If you are concerned about your own driving skills or those of an older family member, you may wish to obtain a formal skills assessment.

The Association of Driver Rehabilitation Specialists (ADED) provides information about driving assessments and referrals to certified specialists. ADED recommends that a driving assessment include testing on visual perception, functional ability, reaction time and a road test.

Visual processing speed, an important component of safe driving, decreases as we age. The Useful Field of View (UFOV) test is a measure of visual processing speed that is increasingly touted as a reliable predictor of accident probability. Researchers at University of Alabama-Birmingham UAB have worked on UFOV for more than a decade.

UFOV is given in three parts. First, a silhouette of a car or truck flashes for less than a second on a computer screen and test takers must touch the word on the screen that corresponds to the vehicle type. Second, test takers must remember where a circular shape flashed on the screen near the vehicle. Last, they must be able to ignore a third object which appears only as a distraction.

Encouraging news: UFOV can be a training tool as well as a diagnostic instrument. According to UFOV researcher Dr. Karlene Ball, in those elderly drivers with poor visual processing skills, training with a modified version of the computer test for four to seven hours may raise visual processing speed to within normal levels.

Recovering stroke victims may wish to explore with a driving rehabilitation specialist or occupational therapist the possibility of incorporating adaptive aids. Cars can be adapted for post-stroke patients so that they accommodate the driver’s “good” side, or allow steering by a modified hand or foot control. Simple adaptations such as adding larger rear and side-view mirrors to cars may assist many drivers with decreased neck mobility.

In addition to ADED, local occupational therapists, local area agencies on aging, your state department of motor vehicles, or your physician may provide driving assessment referrals. Remember that mature driver courses are offered by a variety of organizations, the best-known of which is AARP’s Driver Safety Program. (formerly 55 Alive). Course schedules nationwide may be found on AARP’s website or by calling its toll-free line at (888)AARP-NOW. Participating in safety courses entitles older drivers to insurance discounts mandated by law in most states.

Older Drivers and State Laws: A Few Things to Consider

MARCH 17, 2003 VOLUME 10, NUMBER 37

Twice in October 2002, Elder-Law Issues highlighted concerns of and about older drivers. (See What Can Be Done About Driving Skills As We Age? and Dealing With Impaired Driving Skills In Aging Family Members) This week and next we continue our examination of driving and aging. If you are concerned about the driving habits of an older family member or client, or want to know what is in your own future, here are some things you should know:

a. Older persons do not automatically lose their driver’s licenses. No state has an age-based revocation of driving privileges.

b. Road tests and vision exams are rarely required to maintain a driver’s license. Only drivers 75 or older living in Illinois or New Hampshire must take a road test to renew a driver’s license. However, your state department of motor vehicles may initiate a re-examination interview and road testing upon receiving a referral from family, friends, health care or other professionals who have concerns about an unsafe driver.

A vision test is required in Maine for first license renewals, at every second license renewal until 62, and thereafter at every renewal. In Oregon, vision screening is required every eight years for drivers 50 and above. Utah requires that drivers aged 65 or older take a vision test. Arizona requires a vision test verification form to have been completed within three months of a renewal by mail for those 65 or older.

c. Physicians are not required to report functional impairments in a driver—with two exceptions: 1. Physicians with demented patients in California. 2. Physicians who diagnose or treat patients with epilepsy in California, Delaware, Nevada, New Jersey, Oregon and Pennsylvania. Although they may not be required to report impairments physicians are not ethically prohibited from reporting safety concerns.

d. Five states restrict driver’s license renewal by mail for older drivers. In Alaska, license renewal by mail is unavailable to drivers 69 or older. Arizona, California and Louisiana prohibit renewal by mail for drivers 70 and older. At 66, drivers in Colorado can no longer renew their licenses by mail.

e. 13 states have accelerated renewal periods for older drivers. Arizona, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Missouri, Montana, New Mexico and Rhode Island have shorter renewal cycles for older drivers, though the cycles vary among those states. In Idaho drivers must renew their licenses every four years beginning at age 63 and no longer have the option of electing an eight-year cycle. In Illinois once a driver turns 81 she/he must renew every two years until 87. At 87 the Illinois license renewal is annual. Rhode Island drivers must renew every two years starting at age 70. At 69 Missouri drivers must renew every three years.

What Can Be Done About Driving Skills As We Age?

OCTOBER 7, 2002 VOLUME 10, NUMBER 14
Driving is an enormously important issue to our elderly (and disabled) clients, their family and friends. In the western U.S. and particularly in Tucson, transportation without a car is difficult and inconvenient. Safety of both the driver and the public is paramount, but the loss of independence and self-esteem as well as easy access to groceries and medical care must be addressed when a loved one can no longer safely drive.

There is no mandatory cut-off age for giving up driving. However, even the healthiest senior citizens experience age-related “slowing down” at some point — less flexibility in movement, a decrease in night vision, blurred vision from cataracts, hearing loss, etc. When decreased physical or psychological function cause unsafe behavior —either on the road or in other activities — driving should be suspended until that behavior is evaluated.

If one has difficulty seeing to prepare meals or cannot hear when there is loud knocking at the door, driving is likely also a hazard. All drivers, but especially seniors (who tend to take increasing amounts of medication as they age) must be attuned to the fact that many medications create hazardous driving situations. For example, allergy medications as well as drugs used to treat high blood pressure often have a strong sedative effect.

Seniors and their friends/families have many information resources. Information available online includes the AAA-sponsored website www.SeniorDrivers.org and www.la4seniors.com, both of which help in identifying and addressing driving problems. For drivers concerned about maintaining their skill levels, AARP’s “55 Alive Driver Safety Program” is taught locally at the Pima Council on Aging (enrollment is limited; contact them at 298-3120 first.)

In 1999, the American Medical Association changed its ethical guidelines so that physicians, despite their duty to keep confidences, may report a patient’s driving impairments in order to protect public safety. Physicians or family members concerned that a senior should not be driving may contact the AZ Dept of Motor Vehicles, Medical Review Program at 1452 N Eliseo C. Felix, Jr. Way, Avondale, AZ 85323 [(623) 925-5795]. Advanced age alone is insufficient; the letter of concern should detail the driver’s deficits and must contain the driver’s name, address, date of birth, and if possible the driver’s license number.

Revoking a driver’s license may not stop the impaired driver. In a future newsletter we will discuss some strategies to deal with that problem.

©2017 Fleming & Curti, PLC