In this episode of On Subrogation: Sudden Medical Emergency, 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.

If you’re interested in the general sudden emergency defense in the context of subrogation cases, you can find a video episode and in-depth podcast in our library of On Subrogation episodes.

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.

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 cause damages,” the event must directly precede the accident, must be sudden and, perhaps most importantly, must be unforeseeable.

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.

  1. Did the party lose consciousness before or after the accident? If it’s after the accident, the defense will not hold up.
  2. Did the party actually lose consciousness? Are there witnesses, medical records from directly after the event, etc, that may prove it?
  3. 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?

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 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.

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?

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.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. Have a question we haven’t yet covered? Reach out at [email protected] or [email protected] to suggest a subject for a new episode.