So what can a medical examiner do to reduce medical malpractice liability risks related to DOT medical examinations? Risks may not be as high as you think. A DOT medical examiner is not automatically at risk just because a commercial motor vehicle driver has an accident, even if that accident is related to a health problem that the driver has.
DOT medical examiners are held to the standard of care that is reasonably expected for medical examiners with similar credentials and training. Most importantly, this means that the question as to whether a driver should have been medically cleared to drive hinges on whether most DOT medical examiners, given a driver presenting with a similar medical history, would have cleared the driver.
Broadly speaking, drivers presenting for medical clearance can be divided into three categories: 1) drivers that most medical examiners would clear to drive, 2) drivers that most medical examiners would not clear to drive, and 3) drivers that some medical examiners might clear but others might not. It is this last category that medical examiners need to steer clear of – when in doubt, don’t, is a wise approach. Ask yourself, if this driver presented to 100 certified DOT medical examiners, how many medical examiners do you think would clear this driver to drive? If the answer isn’t 100%, or close to 100%, you should consider a temporary or permanent disqualification determination.
There are also things the medical examiner can do to mitigate risk. While the medical examiner cannot cede the certification decision to any other medical provider, obtaining medical opinions from other medical providers involved in the driver’s medical care can provide important clinical support for the medical examiner’s determination. Bear in mind that FMCSA guidelines for obtaining medical opinions require that the medical providers involved should understand the CMV driver’s role. This requirement is most easily met by attaching a description of the duties of a CMV driver to medical clearance documents sent to other medical providers, and by including a statement that the medical provider is familiar with a CMV driver’s duties in the statement to be signed by the medical provider.
Medical clearance statements should also contain questions that are as specific as possible. Rather than simply ask for “cardiology clearance” the medical examiner is better served to ask for “cardiology clearance related to the driver’s history of myocardial infarction and congestive heart failure”. Rather than ask for “pulmonary clearance” the medical examiner is better served to ask for “pulmonary clearance which requires FEV1 of at least 65% predicted”.
Apply the standard care that most medical examiners would use. Make sure medical providers consulted are aware of CMV driver duties. Ask consulted medical providers specific questions related to the driver’s medical history and FMCSA medical standards. DOT medical examiners that follow these rules are unlikely to have significant liability risk, even in the event of driver accidents that may be related to a driver’s medical condition.
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