The opposing driver in your subrogation lawsuit asserts they are not liable for their role in the accident because of a sudden medical emergency. But what exactly does that mean? And how do you continue to pursue subrogation recovery? In the episode of On Subrogation: Sudden Medical Emergency below, subrogation attorney Jason Sullivan discusses how to argue against a sudden medical emergency defense, one of the several affirmative tort defenses lawyers often encounter in insurance disputes.
A situation an insurer’s counsel often encounters in automotive subrogation claims is that the tortfeasor claims they had a sudden medical emergency, so it’s not their fault. This is an affirmative defense that’s meant to remove liability in cases where there was, in fact, a sudden medical emergency that preceded the incident that caused the damages.
Subrogation lawyers often encounter this defense in auto insurance subrogation because, when successfully argued, it completely eliminates negligence. Therefore, even a comparative or contributory fault argument cannot be applied and the tortfeasor is entirely absolved of their role in the loss incident. These cases are especially important for insurers and their subrogation legal team to investigate thoroughly – never accept this claim at face value.
What Qualifies as a Sudden Medical Emergency?
A sudden medical emergency must have a few factors to qualify as a viable defense for your adverse party. Defined as “When a party loses consciousness, is no longer in control, and causes damages,” the event must directly precede the accident, must be sudden and, perhaps most importantly, must be unforeseeable.
Because a sudden medical emergency is an affirmative defense, the burden of proof generally falls on the tortfeasor to prove the defense applies. Simply claiming to have blacked out or suffered a cardiac event is not enough. Courts typically require competent evidence demonstrating both (1) the existence of the sudden medical event and (2) its direct contribution to the accident itself.
Learn more about sudden emergency defenses in subrogation claims:
- Blog article: How Does a Sudden Emergency Affect Liability for a Loss?
- Video episode: On Subrogation: Sudden Emergency Defense
- Subrogation podcast: Sudden Emergency
What to Consider when a Tortfeasor Claims a Sudden Medical Emergency
So your tortfeasor is asserting that there was a sudden-onset event that caused them to black out, for example, a heart attack, stroke, fainting, etc. Therefore, they’re not responsible for your damages. What should a subrogation attorney do? Don’t take their word for it. Ensure you thoroughly explore those three factors: precedence, suddenness, and foreseeability.
- Did the party lose consciousness before or after the accident? If it’s after the accident, the defense will not hold up.
- Did the party actually lose consciousness? Are there witnesses, video footage, medical records from directly after the event, etc., that may prove it?
- Could the event have been anticipated? If the tortfeasor had some sort of condition, was on a certain medication, or felt some type of way, should they have known they shouldn’t have been driving at the time of the accident?
Subrogation claims adjusters and investigators must move quickly to preserve evidence that may disappear over time. EMS reports, toxicology screenings, witness statements, and body camera footage from responding officers may all become critical in evaluating whether the alleged medical emergency actually occurred. Similarly, newer cars have capabilities that can reconstruct factors such as whether the driver braked before the impact. If they didn’t, it may indicate they were incapacitated. Conversely, if they did, it implies they were conscious.
Another possible line of evidence to consider is wearables. Today, many people wear fitness watches, rings, ear pieces, and other monitoring devices that record variables such as heart rate and respiratory rate, blood pressure, sleep, and other associated statistics that may also contribute to an argument for or against a sudden medical emergency. Subrogating parties should consider and explore all possible angles to evaluate the condition of the adverse driver at the time of the accident.
Calling Consciousness into Question
How does a court determine whether there was actually a loss of consciousness that was an immediate cause of the subrogated matter? Jason offers an example from one of his cases to illustrate:
The insured was in a car accident that was clearly caused by the other party. The other party claimed they lost consciousness and had no recollection of events immediately preceding or following the incident. To support this defense, they had a doctor testify, who concluded that it was possible but impossible to confirm whether the party lost consciousness.
In this case, the court decided the jury would not consider the sudden medical emergency defense because there was not enough evidence to confirm that the loss of consciousness occurred before the accident. Because, unless the loss of consciousness occurred before and directly contributed to the incident, there can be no sudden medical emergency.
One challenge in medical emergency subrogation is obtaining the medical evidence needed to evaluate the defense; medical records and provider opinions are protected by privacy laws. Subrogating carriers should be ready to submit subpoenas or formal discovery requests with immediacy if the opposing party is not willing to provide them voluntarily. Important records to collect in the subrogation inquiry might include:
- Emergency room evaluations
- Neurology or cardiology records
- Prior diagnoses involving seizures or movement disorders
- Prior diagnoses involving fainting or narcolepsy
- Medication histories
- Physician driving restrictions, warning, or past restrictions
- Toxicology or alcohol screening results
The Importance of the Foreseeability Factor: Was it Actually an Emergency?
Many times, successfully arguing against a sudden medical emergency defense in a subrogation claim involving a car accident hinges on foreseeability. Some states analyze this factor under an act of god theory, but others, like Pennsylvania, operate under a loss of consciousness theory. Subrogation professionals should perform a thorough discovery to explore foreseeability.
Under Pennsylvania and other states’ loss of consciousness theory, there is an implicit expectation that a reasonable person who knows they were not in a state to drive has acted negligently. A team subrogating a case where this loss of consciousness defense arises should determine:
- Was the person diagnosed with a condition that causes fainting/dizziness/blacking out?
- Was the person under current care by a doctor for said condition? For how long?
- Was the person on any medications with warnings against operating vehicles or symptoms that include compromised cognitive and/or motor control? For how long?
For example, a driver with a documented seizure disorder who ignored medical advice not to drive will have a difficult time asserting a sudden medical emergency defense. While a seizure itself is both sudden and an emergency, as a chronic disorder, the possibility of a seizure should have been considered as a continuous risk; the driver should have reasonably expected the possibility of experiencing such an episode while driving – it was not unforeseeable.
Dismantling a Sudden Medical Emergency Assertion in Your Subrogation Case
Whether the tortfeasor’s defense stands up often boils down to whether a reasonable person would have sought medical care for a condition, and whether a reasonable person would have been aware they should not have been driving at the time of the incident. The same holds for medications with certain symptoms and warnings. Again, foreseeability is key for a subrogation attorney arguing against a sudden medical emergency defense.
It is also important for subrogation attorneys to remember that even when a legitimate medical event occurred, liability issues are not always entirely eliminated. Depending on the jurisdiction and facts of the case, courts may still analyze whether the tortfeasor acted reasonably leading up to the incident. Questions about medication compliance, medical follow-ups, delayed treatment or ignored symptoms, etc., may factor into a comparative negligence argument.
Carriers should engage with a subrogation law firm able to provide national coverage with attorneys knowledgeable in jurisdiction-specific statutes to maximize recovery potential in every viable subrogation claim. Rathbone Group is a leading subrogation law firm with a skilled team of attorneys, adjusters, and specialists committed to advocating insurer rights to subrogation recovery.
Want to explore more informational resources on important subrogation topics and tips on how to navigate complicated cases? Visit our YouTube channel and podcast library for more episodes of On Subrogation and explore our Subrogation Blog for more educational articles like this one. Have a question we haven’t yet covered? Reach out at video@rathbonegroup.com or podcast@rathbonegroup.com to suggest a subject for a new episode.