In my prior blawg, “When Automobile Insurance Doesn’t Work”, I related the details of a pending case involving the “Sudden Medical Emergency Defense”. The details of this case are reiterated as follows:
On December 30, 2004, a young man was driving his pickup truck westbound on Hacienda. The defendant driver, prior to the accident, was driving his pickup truck northbound in the southbound lanes on Rainbow (on the wrong side of the road), ran a red light at a very high rate of speed and collided with the driver’s side of the young man’s vehicle. The young man died almost instantly. The collision between the adverse vehicle and the decedent’s vehicle prevented the adverse vehicle from colliding head-on with the other vehicles that were stopped in the southbound lanes of Rainbow for a stop light.
The Defendant driver claims to have experienced a seizure just prior to the accident.
The traffic accident report approximates the adverse driver’s speed at approximately sixty-nine to seventy-three (69-73) miles per hour.
The adverse driver was taken to University Medical Center after the accident. His Dilantin level was found to be below therapeutic range at the hospital. In other words, he was not taking the correct dose of his anti-seizure medication.
In the litigation that followed this fatal accident, the Defendants (the adverse driver and his employer) asserted the affirmative defense of “Sudden Medical Emergency” or “blackout”.
The sudden medical emergency defense was established by the Supreme Court of Ohio in a case dating back to 1956, Lehman v. Haynam, 133 N.E 2d 97 (1956). The Ohio Supreme Court stated, “Where the driver of an automobile is suddenly stricken by a period of unconsciousness which he had no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.”
In that case, the Defendants Affirmative Defense stated, “The subject accident and Plaintiffs’ damages, if any, were caused by an unavoidable sudden emergency and not by Defendants’ negligence or other actionable conduct, the existence of which is denied.”
The Ohio Supreme Court reviewed the sudden medical emergency defense in the case of Roman v. State of Gobbo, 99 Ohio St. 3d 260, (2003). This involved an accident where the Defendant Walter Roman suffered an incapacitating heart attack prior to the accident. In that accident, the Roman vehicle caused a multiple vehicle car accident resulting in the death of Nino Gobbo and his wife Frances.
The “Sudden Medical Emergency” defense has not been adopted by the Nevada Supreme Court. Public policy in Nevada dictates that it should not be adopted in the state of Nevada. However, in several cases filed in our District Court, the Defendants have raised this defense. It is likely to be raised in other cases.
As previously mentioned, the “Sudden Medical Emergency” jury instruction utilized by some jurisdictions that have adopted it, centers on the issue of foreseeability. Therefore, it would appear that a way to defeat the sudden medical emergency defense is to obtain the defendant’s prior medical records to determine if the defendant’s medical event (seizure, heart attack, stroke) was contributed to by the defendant’s non-compliance with his physician’s recommendations for treatment of his medical condition.
My case involving the young man driving the pick-up truck, was recently the subject of a judicial settlement conference in District Court, Clark County Nevada. The Settlement Conference Judge was the Honorable Timothy Williams who was successful in resolving the case in its entirety. bouncy obstacle course
Since the basis for the defense of “Sudden Medical Emergency” is foreseeability, my discovery in this case concentrated on the defendant’s compliance with his doctor’s orders prior to the accident. With the assistance of a medical expert, neurologist Dr. Russell Shah, the defendant’s medical records reveal that:
- Defendant’s Dilantin level immediately after the accident was 7.9. The therapeutic level for Dilantin is 10.0.
- Three months prior to the accident the Defendant’s medical records contained notations resembling petite mall seizures. Petit mal seizures are seizures without loss of consciousness. Defendant’s treating physician raised Defendant’s Dilantin from 400 mg to 500 mg. Per day. (Note that, if petit mal seizures did occur, the treating physician should have notified DMV, and Defendant’s drivers license should have been suspended).
- Defendant did not follow up with a blood test as recommended by his doctor three months prior to the accident.
- Defended did not comply with his doctor’s orders to follow-up with a neurologist as soon as possible.
- After the fatal accident defendant’s Dilantin level was toxic on 500 mg. per day (above 20) . 10 to 20 is the therapeutic range. Eventually after the accident the Defendant’s Dilantin was reduced to 400 mg a day, because he was toxic on 500mg.
- The half-life for Dilantin is 22 hours.
- Therefore, the medical expert concluded that defendant did not take his Dilantin as prescribed probably for two days before the accident, and that this contributed to a breakthrough seizure on the date of the accident.
- Furthermore, the defendant’s medical expert did not state in his report, to a reasonable degree of medical probability, that the defendant had a seizure before the accident as opposed to the trauma of the accident itself causing the seizure.
In this case it was very helpful to have Judge Timothy Williams as our settlement judge. Call it luck of the draw, but his background and experience as a personal-injury attorney was instrumental in his ability to settle this case.