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Gates v. Riley2/10/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
In this interlocutory appeal, Dr. L.T. Gates challenges the denial of his summary judgment motion in a medical malpractice action filed against him on behalf of Mai Riley, deceased, by her father, Robert Keith Riley. Upon appeal, Dr. Gates presents the following restated issue for review, which is dispositive of the appeal:
In conjunction with a commercial driver's license application, if a physician indicates on a physical examination form that the examinee suffers from a disqualifying vision deficiency, but nevertheless certifies the applicant and the state issues a driver's license notwithstanding the defect, can the physician's certification be the proximate cause of injuries suffered by a third party as a result of a subsequent vehicular collision with the applicant?
We reverse.
The facts favorable to the nonmoving party are that Charles Hill has been a professional commercial truck driver since the 1950s. In 1958, Hill's right eye was surgically removed because of a malignant tumor. Formerly, a person could operate a semi-tractor/trailer with a chauffeur's license. At some point in time prior to 1990, the law changed and a person was required to obtain a commercial driver's license (CDL) in order to operate a semi-tractor/trailer. According to Federal Motor Carrier Safety Regulations (FMCS Regulations), a person must have binocular vision in order to be eligible for a CDL. See 49 C.F.R ยง 391.41(b)(10). Prior to April 1, 1992, a person could obtain a CDL, even with a total loss of vision in one eye, so long as they applied for a waiver and met certain conditions. The waiver program ended in July 1992. Since sometime prior to 1992, Indiana Bureau of Motor Vehicles (BMV) regulations permit a person with monocular vision (i.e., vision in only one eye) to obtain a CDL with a K-restriction. A person may operate a commercial vehicle within the State of Indiana with such a K-restriction license, but is not eligible to drive interstate. In order to be eligible for a K-restriction license, the applicant must have, among other things, possessed a commercial driver's license before April 1, 1992. If otherwise qualified, such a person was "grandfathered" into the K-restriction program.
In order to qualify for a CDL under both federal and Indiana law, a person is required to undergo and pass a physical examination (a DOT examination). In conjunction with the DOT examination, the examining physician was required to fill out a specific form, which the parties refer to as a "DOT form." Prior to November 1, 1991, Dr. Gates had performed forty or fifty DOT examinations. In fact, Dr. Gates kept blank DOT forms on file at his office.
On November 1, 1991, Dr. Gates performed a DOT examination on Hill. He noted on the DOT form that Hill had an artificial right eye. Hill took the completed DOT form to the BMV and was erroneously issued an unrestricted CDL with a hazardous endorsement, which permitted Hill to transport hazardous materials interstate. Apparently, the BMV clerk did not notice that the form indicated Hill had only one eye.
Drivers possessing a CDL were required to renew the license every four years. However, they were required to pass a physical examination every two years in order to remain eligible for the last two years of the license.
On November 2, 1993, Dr. Gates performed another DOT examination upon Hill, and again noted on the DOT form that Hill's right eye was enucleated (i.e., had been removed). Dr. Gates also noted on the line reserved for "General Comments" that Hill had "monocular vision only." Record at 395. At the bottom of the DOT form, Dr.
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