Case against van driver who struck 9 year-old is dismissed without allowing discovery of driver's medical records
A nine-year old obtained her parents' permission to operate their motor bike in the yard. She apparently lost control or she defied their instruction, and drove the bike down the driveway and into the road. An approaching van driver told investigators that she saw the bike's wheel on a conflict course behind a screen of trees, "5 to 7 seconds" before striking the bike in the road, and the parents of the dead girl attempted to hold her responsible for failing to react more quickly. The girl's parents alleged that the van driver reacted slowly due to medication she took for depression, but did not document that claim.
The Court held that the girl's parents could not secure the driver's medical records because the van driver had asserted the physician-patient privilege and had not made any claim about the her mental or physical condition. The Court also held that the collision was "unavoidable" by the time the van driver would have realized that it was "obvious" the motorbike would fail to yield the right of way. Given the reconstruction testimony we have heard over the years, it would appear to be a question of fact whether the van driver reasonably could have avoided striking the bike if the driver slowed immediately upon recognizing a potential collision.