Regulatory reactions to drowsy driving fall into three main categories: rules applicable to private drivers, rules applicable to government agencies, and rules applicable to doctors of impaired drivers. Knowing the rules addressing fatigued driving and the obligations of medical professionals to report impaired driving due to chronic fatigue will help protect you and your patients.

SAFETY ISSUES

Few can deny that we’re a sleepy nation. The National Sleep Foundation’s 2008 “Sleep in America Poll” showed that most adult respondents slept well only a few nights a week. About one-third said that they slept well only a few nights a month. Sleepy or not, it’s a good bet that almost all those polled get behind the wheel. The NSF’s 2002 poll showed that about one-half of those respondents report feeling sleepy while driving. Nearly 20% of the drivers polled admitted to falling asleep at the wheel in the year preceding the poll.

Data from the National Highway Traffic Safety Administration (NHTSA) in the mid 1990s showed about 56,000 crashes annually in which driver drowsiness or fatigue was cited by police.1 A 2002 report from the NHTSA estimated that about 1.35 million drivers have been involved in a drowsy driving-related crash in the past 5 years.2 The sad fact is that we Americans don’t usually let fatigue keep us from driving.

But when is “too tired” enough to be dangerous? If a sleepy driver crosses the line, can—or should—someone hit the brakes and take away the keys? Who should tell a driver he’s too sleepy to keep a license? Should that be a doctor? Or can the government simply take away the keys? These questions are fraught with legal, moral, and ethical judgments. Like all questions of this type, there are few simple answers. Even worse is the inconsistent approaches taken by various state legislatures and government agencies.

PRIVATE DRIVERS

Drivers have a duty to operate their cars in a safe fashion. If they know that an impairment or drowsiness is likely to cause them to crash, then it is the reckless driver who typically bears the blame if his failure to get off the road causes a crash. They sometimes try to shift the blame to somebody else, such as the driver’s employer who might force overtime duties on the driver. Most (but not all) courts refuse to blame the employer for overscheduling their employees.

The courts in employer-scheduling cases usually reason that the fatigued driver is best suited to know of their fatigue and to get off the road. Otherwise, the boss would need to keep track of his employee’s personal habits, like how late the employee stayed up the night before, how much TV the employee watched at a friend’s house after clocking out, or how distant the employee’s home might be from work.

Some believe that persons with certain maladies known to cause sudden blackouts, such as narcolepsy or epileptic seizures, should stay off the road altogether. For example, the American Medical Association takes the position in its “Physician’s Guide to Assessing and Counseling Older Drivers” that older patients with a diagnosis of narcolepsy should cease driving unless treated.3 The AMA Guide suggests that patients with sleep apnea are fine to drive if their apnea does not lead to excessive daytime drowsiness due to therapy or otherwise.

GOVERNMENT RESPONSE TO DROWSY DRIVING

The ultimate power to take away the keys rests with state governments. Almost all states have laws restricting a person’s right to drive due to certain medical conditions. Yet only a handful specifically include sleep disorders, such as narcolepsy or obstructive sleep apnea, as a medical condition leading to license denial.

A common thread in many state licensure laws is to examine the individual driver’s ability to operate a car safely rather than the driver’s diagnosis of a specific medical condition.

For example, Oregon’s Department of Transportation has established functional and cognitive standards deemed key for safe driving.4 Standards indicating unsafe driving include cognitive impairments such as lack of attention, delayed judgment, impaired problem solving, delayed reaction time, deficits in planning and sequencing, confusion, and poor memory—all conditions that sleep specialists will instantly recognize as indicative of sleep deprivation or some sleep disorders.

At least one state, New Jersey, has addressed sleepy driving indirectly in its vehicular homicide statute. The so-called “Maggie’s Law” is an evidentiary rule of law saying that proof of driving after 24 consecutive hours of sleeplessness “may” give rise to an inference of criminal reckless driving.5

Interestingly, Maggie’s law distinguishes fatigue from inebriation. Drunkenness, unlike fatigue, is a condition under Maggie’s law that shall give rise to an inference of recklessness.5 This legal distinction points out the difficulty of imposing criminal penalties on fatigued drivers. Sobriety can be objectively measured by blood test or breathalyzer. Fatigue cannot yet be objectively measured by any gauge or device. Thus, it is hard to prove “beyond a reasonable doubt” that the driver was, in fact, too fatigued to drive at the time of the crash.

THE ROLE OF THE DOCTOR

Although many states permit a driver’s doctor to report suspected driving impairment to the state’s motor vehicle division, at least seven states require the driver’s doctor to report their patient’s severe physical or cognitive driving impairments.6 Once the physician makes the report, it’s up to the state agency to determine whether to suspend the driver’s license based on the observations and opinions in the report.

This obviously puts the doctor in a tight spot with his patient, especially in subjective areas like drowsiness. In an effort to encourage physicians to report driving impairments, Oregon’s mandatory reporting law immunizes the physician against all civil liability for making good faith reports.7

But what risk does the doctor bear if he fails to report and the sleepy patient crashes a month after leaving the doctor’s office? Again, in an effort to encourage reporting, the Oregon law immunizes the physician even for not making the report. Similarly, the Pennsylvania Superior Court has held that a physician’s failure to report a driver’s impairment will not, absent certain circumstances, automatically cause the physician to be subject to an action for liability.8

Not all states have ruled on a physician’s liability for reporting or failing to report driving impairments. Physicians could face liability under two theories. First, the patient might claim that the reporting physician breached the patient’s expectation of confidentiality regarding their medical records. Alternatively, the physician might face a claim that they negligently failed to report voluntarily a severe impairment that later caused a car crash.

Many states recognize that a physician’s obligation to maintain the confidentiality of a patient’s condition is not absolute. For example, in New York state, unauthorized disclosures by physicians may be justified where a patient may be a danger to himself or others.9 In other words, the “protective privilege ends where the public peril begins.”10

The general rule under the second theory is that physicians do not owe a duty to third persons who might be injured by the acts of the doctor’s patients. Prevailing law takes the position that a physician’s duties to third parties arise only if the physician “takes charge” of his patient’s activities.11 In other words, one standard exists if there is a special relationship between the physician and the patient and another standard applies in the usual patient-physician encounter.

Thus, a physician is not usually held responsible to monitor day to day whether the patient heeds the doctor’s advice to stay on treatment or to stay off the road.

Liability could attach, however, if the physician fails to warn the patient of the adverse consequences of taking or not taking a prescribed treatment regimen. Thus, a physician should make a note that they have warned a sleepy patient that use of certain prescribed medications or failure to use treatments such as PAP could lead to excessive daytime sleepiness affecting their daily routines such as driving.

Finally, physicians have some ethical duties to the public at large regarding patients whose conditions indicate the likelihood of severe driving impairment. In 2000, the American Medical Association adopted Ethical Opinion E-2.24, which says that it is desirable and ethical for the physician to notify the applicable department of motor vehicles (i) if clear evidence of substantial driving impairment implies a “strong threat” to patient and public safety, and (ii) if the patient ignores the advice to discontinue driving. The Opinion says that the physician must follow state law if reporting is required and that doctors should disclose and explain their reporting responsibility to their patients.

Since laws vary across the country, medical professionals should check and follow regulations in the appropriate state.


Daniel B. Brown, Esq, is a health care attorney resident in the Atlanta office of Greenberg Traurig, LLP. He can be reached at sleepreviewmag@allied360.com.

REFERENCES

  1. National Center on Sleep Disorder Research and the National Highway Traffic Safety Administration Expert Panel on Driver Fatigue and Sleepiness. Drowsy Driving and Automobile Crashes. Available at: www.nhtsa.gov/people/injury/drowsy_driving1/Drowsy.html.
  2. National Highway Traffic Safety Administration. National Survey of Distracted and Drowsy Driving Attitudes and Behaviors: 2002, Vol 1. Available at: [removed]www.nhtsa.gov/people/injury/drowsy_driving1/surveydistractive03/drowsy.htm[/removed].
  3. Or Admin R §735-074-0110 (2009), Severe and Uncontrollable Impairments That Must Be Reported to DMV.
  4. American Medical Association. Physician’s Guide to Assessing and Counseling Older Drivers, 2d ed. 2010. Available at: www.ama-assn.org/ama/pub/physician-resources/public-health/promoting-healthylifestyles/geriatric-health/older-driver-safety/assessing-counseling-older-drivers.shtml.
  5. NJ Rev Stat Ann § 2C:11-5(a) (2009).
  6. States that mandate reporting of certain impairments include California, Delaware, Georgia, New Jersey, Nevada, Oregon, and Pennsylvania. Note: These laws and interpretations change frequently, so a review of your state’s Department of Transportation rules is advised.
  7. Or Rev Stat § 807.710
  8. Hospodar v Schick, 885 A2d 986, 2005 PA Super 319 (2005).
  9. MacDonald v Clinger, 84 A.D.2d 482 [4th Dept 1982], 446 NYS2d 801 (1982).
  10. Id. at 487, quoting, Tarasoff v Regents of Univ of Cal, 551 P.2d 334, 131 Cal Rptr 14, 17 Cal.3d 425 (1976).
  11. Tarasoff v Regents of Univ of Cal, 551 P.2d 334, 131 Cal Rptr 14, 17 Cal.3d 425 (1976).