8/27/2019
Sudden Medical Emergency Defense

Sudden Medical Emergency Defense

Three tips for when and how to raise it

By Howard L. Huntington , Karen Swafford

Most states recognize some variation or degree of the “sudden medical emergency defense.” In such jurisdictions, this defense may enable defendants to escape liability in the event they suffer from a sudden and unforeseeable medical emergency that renders them unconscious in the instant preceding an accident. A classic scenario in which the defense may apply involves a driver who suddenly and unexpectedly blacks out while driving and, through no fault of her own, crosses the centerline and collides with oncoming traffic. This may be due to a heart attack, brain aneurysm, diabetic hypoglycemic attack, or other similar medical event that renders the driver suddenly incapable of controlling the vehicle. With a spectrum of differences among jurisdictions, this defense sometimes goes by different labels, including, but not limited to, “act of God defense,” “blackout defense,” “sudden physical illness defense,” “defense of sudden unconsciousness,” “defense of unanticipated unconsciousness,” and “sudden loss of capacity,” to name a few.

The rationale underlying the defense is that the stroke or other event rendering the defendant unconscious is deemed equivalent to a tornado or other “act of God.” As a result, the theory is that the afflicted defendant has not, in fact, acted negligently and/or has not proximately caused the accident, so tort liability is effectively precluded. Even if the strength of the defense is uncertain, a colorable “sudden illness” argument may provide the defense with much-needed leverage that is initially not apparent in a difficult case. Therefore, as uncommon as the circumstances may be that appropriately support the defense, insurance professionals should determine its availability and requirements in their given jurisdictions before making an offer to pre-suit claimants. As will be discussed in more detail, insurance professionals and defense counsel must also weigh the pros and cons of raising the defense.

What to Consider

As with many common law doctrines, there is a wide spectrum of how the doctrine is recognized and/or applied across the country. Some jurisdictions that have explicitly acknowledged the viability of the sudden medical emergency defense have promulgated specific patterns for jury instruction. Other states have, thus far, only recognized the act of God defense in the context of such natural calamities as earthquakes, but have not yet definitively addressed applicability to a sudden medical emergency. A relatively small handful of states have outright rejected application in the medical context, even where the act of God defense is available in traditional force of nature situations.

Among the states in which the defense is cognizable in the medical emergency context, there are differences involving elements to be proven, the severity of medical events that are eligible to give rise to the defense, burden of proof, standard of proof, and other evidentiary nuances. Some states require actual unconsciousness, whereas extreme pain or numbness alone (or even a coughing fit) may suffice to support the defense in others. In some states, the defense may even be a basis for a successful motion for summary judgment. Obviously, insurance professionals should study the parameters of the defense in their given jurisdiction in order to most effectively investigate and consider raising it in any pre-suit negotiations.

Given the harsh consequences for a plaintiff, some jurisdictions in which the defense is cognizable require unequivocal evidence of the unforeseeable event. Thus, a self-serving claim of blackout alone may not be enough. The defendant typically must be physically rather than mentally incapacitated. The onset of the medical event must be sudden. The medical event must be unforeseeable to the defendant such that the accident is rendered unavoidable by foresight. The medical event itself must occur before the negligent act. In order for the defense to apply, the emergency must not be manifested by the defendant’s own negligent conduct. Here are three strategies to consider during defense.

1. Investigate all warning signs preceding the accident. The foreseeability prong is commonly tested by such factors as the defendant’s awareness of his own medical condition, whether or not he sought medical advice for relevant symptoms, prescriptions for relevant symptoms, and previous occurrences. The frequency, recentness, dormancy, number, extent, duration, and severity of previous episodes are also relevant to whether or not the medical emergency should have been foreseeable to the defendant. For example, if chest pains are progressive prior to the incident, then the driver arguably should have anticipated the danger was imminent and voluntarily restricted his own activities. Conversely, an afflicted defendant who was the model of good health at all times prior to the accident will be more likely to demonstrate the illness was unanticipated.

2. Determine the nature, severity, and length of unconsciousness. Obviously, it is important to establish how and why the unconsciousness occurred, when it commenced, and how long it persisted. Evidence of the alleged blackout itself is often tested by such factors as whether or not the defendant appeared to make consciously evasive maneuvers in the instant leading up to the collision and whether or not he has any recall of the accident. The defense team may anticipate that the plaintiff’s counsel will retain an accident reconstructionist to opine that the defendant’s loss of control was not immediate. Black-box data may undercut a defendant’s assertion that he blacked out at the critical moment.

3. Carefully consider whether opening the door to a defendant’s medical history will be counterproductive. Because this defense may otherwise lend itself to fabrication, a defendant raising the medical emergency should expect that raising the defense will open the door to his own medical history when such discovery otherwise would be unavailable to the plaintiff. The defense team should expect plaintiff’s counsel to subpoena medical records with an eye toward discovering prior episodes of syncope, vertigo, or seizures; diagnoses of heart conditions; or disorders and conditions that might interfere with the alertness, strength, physical coordination, or skill necessary and required to safely operate a motor vehicle. Pharmacy records may also uncover prescriptions obviously intended to treat such conditions. Prescriptions and their labels may demonstrate warnings of side effects or interactions that the defendant should have anticipated prior to the collision. Moreover, a failure to take prescribed medications may demonstrate the defendant’s negligence and defeat the defense. A failure to disclose a physician’s warnings as to risk of recurrence while driving to the licensing authority would clearly gut the defense.

If the collision involves a defendant who is employed as a driver for another entity and was driving in the scope of employment at the time of the collision, the defense team should anticipate evidence of the driver’s medical history may trigger otherwise unknown theories to pursue against the employer, such as a theory of negligent hiring of an employee who the employer knew or should have known was unfit to drive.

Pursuing the defense in litigation might have the unwanted effect of triggering the plaintiff to focus discovery on uncovering evidence that actually increases the value of the plaintiff’s case. Therefore, even pre-suit, insurance professionals should be judicious about limiting the defense to cases with significantly favorable, objective evidence rather than merely plausible explanations. Above all, insurance professionals and defense counsel should be aware and beware of the potential pitfall of inflaming a jury where the facts supporting the defense are simply too weak. Plaintiffs would be hard pressed to accuse defendants of making flimsy excuses where they have objective proof of a heart attack. In contrast, defendants who have little more than apparently self-serving testimony that they must have fainted should think twice about pursing the defense for this reason.

While the circumstances warranting a sudden medical emergency defense exist in a relatively small fraction of claims, insurance professionals too often settle without considering and employing the leverage that may be available to them. In jurisdictions where the defense is recognized, raising the defense requires careful investigation of the supporting evidence and potential drawbacks. In the right case, the sudden medical emergency defense can certainly be an effective tool that should not be overlooked.



Howard L. Huntington is a partner at Harrison & Held, LLP. He can be reached at hhuntington@harrisonheld.com.

Karen Swafford is claim manager at CCMSI. She can be reached at kswafford@ccmsi.com.

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