Litgation Privilege Shields Doctor Who Reported Patient to DMV

McNair v. City and County of S.F., No. A138952 (D1d4 Nov. 22, 2106)

Doctor examined Patient in connection with an application for SSI. Against Patient’s wishes, Doctor sent a letter to the DMV, warning that Patient’s medical condition rendered him unable hold a commercial drives license. Patient sued for breach of contract and invasion of privacy. The trial court granted SJ on the privacy claim based on the Civil Code § 47(b) litigation privilege. It later granted a nonsuit on the breach of contract claim, on various grounds, including the litigation privilege. Plaintiff appealed.

The court holds that both claims were barred by § 47(b). The letter was close enough to the quasi-judicial DMV revocation proceedings that it should be litigation-related because it started the ball rolling on the license revocation process. Plaintiff argues that there is a specific on-point non-disclosure statute—Confidentiality of Medical Information Act, Civil Code § 56.10—that trumps the litigation privilege. But the relevant part of CIMA says that disclosure is permissible when “authorized by law,” and Health & Safety Code § 103900 says that a doctor can report a patient’s confidential medical information about a disorder causing “lapses of consciousness” to the DMV. Because the statutes don’t categorically bar disclosure—and indeed arguably allowed it—when such a disclosure, in connection with a public proceeding, is the basis of litigation, it is still coveted by § 47(b). Which is the case here.

So far as the contract claim goes, there are some cases that suggest that § 47(b) applies only to torts. But the court reads some newer cases hold that § 47(b) can, in fact, bar a disclosure in breach of a confidentiality agreement, when: (1) the obligations under the alleged agreement are not entirely clear; and (2) there is some overriding policy interest in disclosure. The court follows those later cases here. Plaintiff’s contract theory isn’t a portrait of clarity, and its uncertain even whether whatever part-oral-part-written-part-implied agreement existed wasn’t subject to the Doctor’s other disclosure obligations under the law. And there is clearly an important public protection function that is served by the laws permitting a doctor to report unfit drivers to the DMV. Given these considerations, the litigation privilege wins out.

Affirmed.