McNair v. City and County of San Francisco (Nov. 22, 2016, A138952) __ Cal.App.5th __ [2016 WL 6879277]
Dr. Ann Kim disclosed to the California Department of Motor Vehicles (DMV) that her patient, Michael McNair, had Cognitive Disorder NOS diagnoses. McNair ultimately lost his commercial driving license and his employment as a bus driver. McNair sued Dr. Kim and her employer, the San Francisco Department of Public Health (DPH), for breach of contract and breach of medical privacy rights. The trial court granted summary adjudication against McNair on his privacy claim and nonsuit on his contract claim, ruling that both claims were barred by the litigation privilege. (Civ. Code, § 47, subd. (b).) McNair appealed.
The Court of Appeal affirmed. First, it held that Dr. Kim’s communication with the DMV qualified for protection under the litigation privilege, as broadly interpreted in Silberg v. Anderson (1990) 50 Cal.3d 205, 212. The court rejected McNair’s contention that the medical privacy laws are an exception to the privilege because those laws do not mandate absolute confidentiality. Moreover, the court determined that applying the privilege here would advance the policy of encouraging reports regarding potentially unsafe drivers. The court also held that the litigation privilege applied to McNair’s contract claim because none of the contracts identified by McNair (including various DPH admission and consent forms) “ ‘clearly prohibit[ed]’ ” Dr. Kim’s conduct.
Thomas Watson
htwatson@horvitzlevy.com
Horvitz & Levy LLP
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