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Aviation Medical Examiner Added as Defendant in Crash Case
Published in the January 2010 issue of Transportation Notes - View Article
Last month, a judge in the British Columbia Supreme Court released an interesting decision that provides some insight into the possible liabilities of civil aviation medical examiners (“CAMEs”) for accidents caused by their patients, as well as the extent to which providing medical reports to Transport Canada will result in a statute bar to actions against them.
On the afternoon of October 19, 2007, Chen Zhang and Jin Wu were sitting comfortably in their ninth floor condominium in Vancouver, when Peter Garrison paid them a visit. Rather than entering through the front door of the apartment, he crashed through the exterior wall, while piloting his Piper Seneca.
Mr. Garrison was killed in the collision. Zhang and Wu were injured, and suffered significant property damage (as did Li Zhang, who also resided in the apartment, but was not present on the day in question).
The Zhangs and Wu commenced legal proceedings against Garrison’s estate for damages arising from the crash.
After conducting an investigation, the Transportation Safety Board indicated that the pilot suffered from a number of health problems at the time of his death and concluded that the most probable cause of the accident was that “[t]he pilot had pre-existing health risk factors, making it possible that he suffered an acute medical event resulting in incapacitation and a loss of control of the aircraft.”
With this finding in hand, the plaintiffs brought an application before the Court to add Dr. Daniel Wong as a party defendant to the action. Dr. Wong had been Garrison’s CAME since 1995, and his personal physician since 2004.
The plaintiffs proposed to allege that Dr. Wong was negligent for failing to point out to Mr. Garrison and Transport Canada that Mr. Garrison was not fit to operate an aircraft on the basis of his age and medical condition, and accordingly, as a pilot, he posed an unreasonable risk to others.
More specifically, the plaintiffs sought to argue that Dr. Wong failed to order the required electrocardiogram testing on Mr. Garrison that would have ascertained his true state of health. Further, the plaintiffs sought to allege that Dr. Wong’s personal relationship with Garrison as his personal physician clouded his judgement which, in turn, caused him to fail to report Mr. Garrison’s medical problems to the authorities.
The plaintiff’s position was that, had Dr. Wong reported the medical problems to Transport Canada, Garrison would not have been continued as licensed as a pilot, and, consequently, the accident would not have occurred.
The issue with this argument was that section 6.5 of the federal Aeronautics Act provides that no cause of action lies against a CAME for any reporting done or information provided to Transport Canada for the purposes of advising the Minister that a member of a flight crew “has a medical or optometric condition that is likely to constitute a hazard to aviation safety.” Moreover, the legislation provides that any information provided in that context cannot be used against the physician in legal proceedings
In support of their position that Dr. Wong should be added to the action, the plaintiffs cited Canada v. Gill [1992] F.C.J. No. 118 (T.D.), which stands for the proposition that not all reports or information provided by a CAME are subject to the section 6.5 immunity.
In that case, the Court found that the protections afforded to medical records pursuant to the legislation does “not appl[y] in respect of medical information provided to the Department of Transport by a doctor designated as a civil aviation medical examiner, following the medical examination of a pilot where such examination is required under the Aeronautics Act to enable the pilot to obtain or maintain a Licence Validation Certificate (“LVC”) which he must have to keep his pilot’s licence in force” [emphasis added].
In the circumstances, it is my opinion that the plaintiffs have established that there may exist a question or issue as to whether Dr. Wong knew or ought to have known that Mr. Garrison’s medical conditions were such that Mr. Garrison should not have operated an aircraft, and that he failed to warn Mr. Garrison or Transport Canada.
The plaintiffs argued in the present case that the medical records that were provided by Dr. Wong in the course of the TSB investigation were not prepared in the context of Dr. Wong validating Garrison’s pilot’s licence, but rather they were records prepared as his personal physician, which were provided after the LVC had issued — and, are therefore are not subject to the privilege and are admissible as evidence at trial.
In further support of their position, and in order to demonstrate the existence of a duty of care from Dr. Wong to the plaintiffs, counsel cited Bakker v. Van Santen, 2003 ABQD 92, where the Court held that a physician may be found liable for failing to warn a patient, or a regulatory authority, that a patient suffers from a medical condition which may impair his/her ability to operate a motor vehicle.
Dr. Wong opposed being added as a defendant. While he conceded that physicians may be found liable to third parties in the circumstances described in the Bakker case, he argued that he should not be exposed to litigation based on evidence that Parliament has specifically deemed medical reports delivered to the appropriate authorities by CAMEs to be inadmissible as evidence at trial.
Dr. Wong’s counsel argued that all medical records and information supplied by a CAME in the TSB investigation were privileged, but failed to adequately distinguish the Gill case.
The Court noted that, in this case, the plaintiff’s were arguing that Dr. Wong failed to make any report to Transport Canada warning of the risks posed by Mr. Garrison’s medical conditions prior to the crash, and further, they were not even seeking disclosure of any records provided to the TSB. (Presumably, they had already obtained Dr. Wong’s medical records regarding Garrison by some other means).
Considering all of the circumstances, the judge found that there was a real issue as to whether or not the information that was provided by Dr. Wong to Transport Canada was caught under the Aeronautics Act immunity provisions.
The Court further held that such a determination could not be made in the context of the application, so it added Dr. Wong as a defendant to the action.
The application was granted with costs in the cause.
Zhang v. Garrison Estate [2009] BCSC 1741