Stories of runaway automobiles are scary. Toyota, with a well-deserved reputation for reliability, has apparently been reluctant to face the facts. Federal investigators are now said to looking into whether the problem with Toyota gas pedals goes beyond the fix announced by the company Monday and involves the vehicles’ electrical system. Sources state that the National Highway Transportation Safety Administration (NTSHA) is looking at the possibility that electromagnetic interference might somehow be causing Toyota’s electronic throttle control systems to malfunction. Toyota recalled 2.3 million vehicles on January 21st due to problems with sticking gas pedals that cause the vehicles to accelerate out of control. Then Toyota halted the sale of the eight vehicles involved in the recall. On Monday, company officials announced they had found a solution that involved reinforcing the pedal assembly with a part that is being rushed to dealerships.
Toyota, however, has known about problems with the gas pedals since 2007. A friction lever at the base of the movable portion of the pedal was prone to swell in high humidity. Toyota changed materials, but did not recall the pickup trucks involved. Nearly a year ago, further investigation disclosed similar problems with several different models, but no recall was initiated.

If you have had a runaway Toyota incident resulting in serious injury, seek competent legal advice immediately. Do not let Toyota take custody of the vehicle or repair it. The evidence must be preserved until it can be evaluated by independent experts.

Yesterday, January, 27, 2010, the Federal Motor Carrier Safety Administration (FMCSA) issued a “Notice of regulatory guidance” concerning texting while driving a commercial motor vehicle (CMV). The guidance is applicable to all interstate drivers of commercial motor vehicles, such as large trucks and buses, subject to the Federal Motor Carrier Safety Regulations (FMCSRs). The regulatory guidance is effective immediately. 

Regulatory Guidance

The Notice provides regulatory guidance concerning the applicability of 49 CFR 390.17, “Additional equipment and accessories,” to drivers engaged in “texting” on an electronic device while driving a CMV in interstate commerce. Currently, 49 CFR 390.17 states:
“Nothing in this subchapter shall be construed to prohibit the use of additional equipment and accessories, not inconsistent with or prohibited by this subchapter, provided such equipment and accessories do not decrease the safety of operation of the commercial motor vehicles on which they are used.”

This provision, Section 390.17 has now been interpreted by the FMCSA as follows:

Question 1: Do the Federal Motor Carrier Safety Regulations prohibit “texting” while driving a commercial motor vehicle in interstate commerce?

Guidance: Yes. Although the current safety regulations do not include an explicit prohibition against texting while driving by truck and bus drivers, the general restriction against the use of additional equipment and accessories that decrease the safety of operation of commercial motor vehicles applies to the use of electronic devices for texting. Handheld or other wireless electronic devices that are brought into a CMV are considered “additional equipment and accessories” within the context of § 390.17. “Texting” is the review of, or preparation and transmission of, typed messages through any such device or the engagement in any form of electronic data retrieval or electronic data communication through any such device. Texting on electronic devices while driving decreases the safety of operation of the commercial vehicles on which the devices are used because the activity involves a combination of visual, cognitive and manual distraction from the driving task. Research has shown that during 6-second intervals immediately preceding safety-critical events (e.g., crashes, near crashes, lane departure), texting drivers took their eyes off the forward roadway an average of 4.6 seconds. Therefore, the use of electronic devices for texting by CMV operators while driving on public roads in interstate commerce decreases safety and is prohibited by 49 CFR 390.17.

Who does this apply to?

CMVs are defined in 49 CFR 390.5 as “any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle —
1. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
2. Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
3. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
4. Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.”
Section 390.17 is therefore applicable to drivers of commercial motor vehicles (CMV), as defined by §390.5, when the CMV is being used by a motor carrier operation subject to the FMCSRs.

I. Background

In 2002, the Tennessee Supreme Court held that there is an implied covenant of confidentiality between physician and patient, which prohibits informal discussions between a defense attorney and a plaintiff’s non-party physician. Givens v. Mullikin ex rel. McElwaney, 75 S.W.3d 383 (Tenn. 2002). Four years later, the Tennessee Supreme Court held that ex parte communications between the plaintiff’s non-party physicians and defense attorney is not permissible in Tennessee. Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn. 2006). The law was crystal clear as it applied to the typical tort case, but what about workers’ compensation claims?
Many claimant attorneys argued that Givens and Alsip applied with equal force to workers’ compensation claims. However, without an express case holding the implied covenant of confidentiality applicable in a workers’ compensation case, the answer was not absolutely certain, and many employer/defense attorneys continued to engage in ex parte communications with the claimant/employee treating physicians.

II. Overstreet v. TRW Commercial Steering Div.

In Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626 (Tenn. 2008), the defendant employer filed a motion with the trial court seeking permission to interview the plaintiff’s treating physician and further sought to compel the employee to undergo an independent medical evaluation (“IME”). The trial court denied the motions, and permission to appeal was granted per Rule 10, TRAP. The relevant issue before the Court was relatively simple: Is an employer entitled to conduct an ex parte interview with an employee’s treating physician? The Court held:

The employer may not communicate ex parte with the employee’s treating physician without first obtaining a waiver of the implied covenant of confidentiality from the employee. . . .

Mr. Overstreet worked for his employer for nearly 35 years as a painter, tow motor operator, and assembly line worker before retiring in 2003. In 2005, Mr. Overstreet was evaluated by a doctor for hearing loss and tinnitus. The doctor issued a favorable opinion concerning hearing loss, tinnitus, impairment, and causation. Thereafter, Mr. Overstreet provided the doctor with written notification instructing the doctor not to communicate with defense counsel. Defense counsel made numerous attempts to communicate with the physician, but the doctor’s office properly advised that they would not engage in ex parte communications. The employer then filed a motion for an IME and also sought permission from the trial court to talk with the doctor outside the presence of plaintiff or his counsel. The Supreme Court, in affirming the trial court’s denial of the employer’s motion to engage in ex parte communications, began with a detailed review of the Givens and Alsip cases mentioned herein.
In order to distinguish the Alsip and Givens decisions, the employer advanced two arguments. First, the employer argued that because the employer/insurer pays the bills, and the plaintiff was not a party to the contract for medical services, the implied covenant of confidentiality was not applicable. Second, the employer claimed that TCA 50-6-204, which allows for the dissemination of medical reports to the employer, voided any covenant of confidentiality. Id.
The Court performed a contract/public policy analysis to determine if there was a covenant of confidentiality between the claimant and the physician. The Court noted that although Givens held that there is a covenant of confidentiality in fact which did not exist in the workers’ compensation context, the same covenant nevertheless exists by legal implication. After citing the relevant provisions concerning disclosure of medical reports, records, and statements of charges, the Court properly noted that nothing in 50-6-204 permits ex parte communications, and “from this conspicuous absence, we must infer that the General Assembly did not intend such communications.” Id. p. 14. According to the Court:

Because the General Assembly has enacted a right to privacy in health care and provided a comprehensive statutory scheme for the disclosure of information under the Workers’ Compensation Act, we hold that an implied covenant of confidentiality in law exists under these circumstances. Id. p. 15.

Although some of the Court’s legal reasoning sounded in contract, public policy dictated the ultimate result, and was intertwined throughout the opinion. The Court further admitted a very real concern to those of us representing claimants:

. . . . the employers actually pay the physicians. In a sense, the physician owes a service to the employer in exchange for his compensation. To some this would call into question whether the physician is free to exercise independent medical judgment. That concern could be exacerbated by allowing the employer to interview the physician outside the employee’s presence. Id. at p. 17.

Ultimately, the Supreme Court held that while an employer may obtain medical reports, records, and otherwise, as expressly provided for in TCA 50-6-204, the employer may not engage in ex parte communications with the physician.