Shifting and seizing: a call to reform Ohio's outdated restrictions on drivers with epilepsy.

AuthorKramer, Kathryn
  1. INTRODUCTION II. THE MEDICAL BACKGROUND III. DISABILITIES AND STIGMA OF EPILEPSY IV. THE OHIO LICENSING STATUTES V. SEISURE-RELATED ACCIDENT CASE LAW VI. PROBLEMS WITH THE APPLICATION A. Basic Intent of the Statues Has Failed. B. Unnecessary Imposition of Negligence upon Clearing Physicians C. Abuse of Police Power 1. Over-Inclusive 2. Under-Inclusive 3. Undue Burden VII. CHANGES IN APPLICATION A. Three-Month Mandated Suspension of Driving Privileges B. Physician Immunity for Good-Faith Certifications C. Negligence Standard for Drivers with Epilepsy D. Subjective Approach VIII. CONCLUSION I. INTRODUCTION

    On Monday, July 30, 2007, Chief Justice John Roberts, Jr. fell as a result of a benign idiopathic seizure. (1) This was Roberts's second seizure, (2) the first occurring approximately fourteen years earlier. (3) In response to this incident and upon the advice of his physician, Roberts voluntarily limited certain activities, such as driving, until he and his physician felt confident that he could resume his daily routine without further seizures. (4) Justice Roberts's self-imposed driving restriction did not provoke a significant public reaction, (5) but many individuals with epilepsy do not enjoy the freedom to choose whether to drive, due to certain laws and policies that impose mandatory driving restrictions upon them with limited exceptions. (6)

    Driving restrictions upon individuals with epilepsy date back as far as 1906. (7) While the legislative intent of such restrictions is often unstated, it is likely that the restrictions were enacted to protect the general public from the perceived high risk of accidents caused by individuals with epilepsy. (8) As a result of this assumption (whether or not correct), every state now mandates some type of driving restriction for drivers with epilepsy, and conditions the reinstatement of driving privileges upon seizure-free periods of specified durations and physician reports supporting the driving safety of the individual in question. (9)

    Despite an arguably well-meaning legislative intent based on public safety, (10) the driving restrictions on individuals with epilepsy are discriminatory. While the Ohio courts have determined the ability to drive is a privilege, not a legal right, (11) these laws restrict individuals with epilepsy from driving, despite an absence of scientific consensus that the risk of accidents caused by drivers with epilepsy is greater than that of individuals without epilepsy, or with any other medical condition. (12) Not all individuals with epilepsy are at risk of causing accidents, (13) but the restrictions exhibit overbreadth by restricting the driving rights of all such individuals according to the most serious cases of epilepsy. (14) Therefore, application of this discriminatory legislation exerts an undue burden upon individuals with epilepsy, including employment difficulties and diminished autonomy, without sufficient safeguards for individual assessment and choice. (15)

    Ohio is gifted with flourishing medical and health law markets. (16) Ohio's recognition and leadership in these areas may facilitate its reevaluation of the equity of epilepsy-based driving restrictions, and the state may take a prominent role in revising laws promoting patient rights while balancing those rights with public interest. With its progressive health market, Ohio should have comparably progressive health laws.

    Presented herein is an analysis of the equity of epilepsy-related driving restrictions and the role that the state of Ohio may assume in the restructuring of such laws. Part two of this paper discusses the medical aspects of seizures and epilepsy, including basic etiology, treatments, and prognoses. Part three of this paper examines the different types of disabilities and the stigma that impacts individuals with epilepsy. Part four reviews the history of licensing and the Ohio Revised Code provisions that govern driving, licensing, and restrictions imposed upon individuals who have experienced seizures. Part five examines the Ohio case law that imposes a negligence standard upon individuals driving with epilepsy, similar to that of other medical conditions. Part six identifies the problems of the existing statutory and case law. Specifically, this discussion focuses on the lack of scientific evidence to provide an appropriate basis of the law, the inaccuracies of the current law, and the harm imposed by contemporary licensing restrictions on individuals with epilepsy. Part seven suggests improvements to the current law that may better balance the competing interests of public safety and individual autonomy. Finally, part eight proffers a recommendation that the state of Ohio establish driving restrictions only for individuals with epilepsy who pose a significant risk of harm to other drivers. Alternatively, if broad driving restrictions for individuals with epilepsy are to be maintained in support of public safety, this paper presents a recommendation for improving the equity of the legislative intent by extending such restrictions to cover other high-risk drivers with similar medical conditions that are, at present, not similarly restricted.

  2. THE MEDICAL BACKGROUND

    Epilepsy is clinically defined as the occurrence of more than one unprovoked seizure in a lifetime of an individual. (17) A seizure is a "sudden attack" that results from an "abnormal electrical discharge in the brain." (18) Epilepsy can involve acute, recurring seizures (19) that can vary in severity and frequency and may remain chronic for a lifetime or for a period of time. (20)

    The etiology of seizures and epilepsy varies for each individual. (21) Some individuals develop chronic epilepsy, while others only experience one isolated seizure. (22) The potential causes include congenital abnormalities, antenatal or perinatal factors, infectious conditions such as meningitis, and physical trauma. (23) A seizure may be triggered by any combination of triggering factors, such as environment, biology, genetics, and physical impairments. (24) The most common of the potential causes is physical head trauma; however, the trauma need not be extensive, and a seizure disorder can develop months after the initial trauma. (25) Most seizures consist of different features, such as loss of consciousness, involuntary muscle spasms or abnormal sensations; however, these features may vary, making seizures "almost infinite in variety as viewed by any observer." (26)

    There is no cure for epilepsy, but it can often be controlled and treated. (27) Traditional treatments include drug therapies, such as Dilantin or Lamictal, and psychosurgery, (28) but the details depend on the type, severity, and frequency of the seizures. (29) Because many therapeutic options exist, physicians and patients may discuss the options and adjust the regime over a significant period of time to find a particular drug and dosage with minimal side effects and high effectiveness. (30) Because surgery is a more invasive option, it is typically used only when drug therapies are unsuccessful in reducing debilitating and chronic seizures. (31)

    In determining how a patient should be treated for seizures, physicians take several factors into account: the patient's EEG, (32) a history of seizure activity, electroencephalogram ("EEG") as a means of measuring brain waves, in hopes to measure electrical currents in the brain. Electrodes are placed on the scalp and electrical wave patterns are recorded. Some individuals with epilepsy have what is known as a spike, or a concentrated, abnormal amount of electrical energy, on an electroencephalogram ("EEG"). While this pattern is abnormal, not all epilepsy patients have an abnormal EEG. Id whether or not the individual is a driver, the age of the individual, and any other neurological disorders experienced by the individual. (33) Physicians typically choose not to instigate a treatment plan for individuals who are very young, have no previous history of neurological disorders or seizures, or have only experienced one seizure, because the risk of a repeat incident is small in relation to the high risk of negative side effects from anti-seizure medication. (34)

    For individuals with epilepsy who are prescribed drug therapies, medication can be successful in preventing seizures if taken as directed. (35) Antiepileptic medication is effective for the majority of individuals; by one estimate, at least fifty percent of patients with epilepsy can effectively control their disorder with anti-seizure medication, while nearly thirty percent experience a significant decrease in the frequency of seizures. (36) Due to the high effectiveness of medications, individuals with epilepsy who are prescribed medication and follow treatment programs are likely to have a good prognosis.

  3. DISABILITIES AND STIGMA OF EPILEPSY

    Epilepsy globally affects approximately between forty-four and one hundred per one hundred thousand people per year, (37) and nearly three million people in the United States. (38) Despite the relatively common nature of epilepsy, afflicted individuals have historically been burdened by social stigma. (39) Prior to medical advancements, seizures were believed to be associated with demonic possession and negative religious experiences. (40) People with epilepsy were often shunned or isolated out of fear or intolerance. (41) Until the 1950s, individuals with epilepsy were legally denied the right to marry, the right to drive a car, and the right to obtain employment. (42) Some were even subjected to involuntary sterilization to preclude reproduction. (43) It was not until 1982 that the last state repealed its law precluding individuals with epilepsy from marrying. (44)

    Today, the negative portrayal of epilepsy by the media continues to reinforce the public misperceptions and contribute to the stigma and social disability associated with epilepsy. (45) Many media stories contain...

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