TABLE 22.1 National Sleep Foundation, State of the States Report on Drowsy Driving: Summary of Findings (November 2008) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Sleep, Driving, and the Law
Sleep, Driving, and the Law
Brian Boehlecke
Drowsy driving is recognized as a serious public health problem. In the 1990s, the National Highway Safety Transportation Safety Administration estimated that 100,000 drowsy driving crashes were reported annually to police, with 1500 fatalities and 76,000 injuries representing 1% to 3% of all reported crashes and 4% of fatalities (1). That this is likely an underestimate is indicated by a naturalistic study of 241 drivers over the course of 12 months with in-car video cameras, which showed that drowsy driving was a contributing factor in 20% to 24% of crashes and near crashes (2). A Gallup Poll in 2002 found that 37% of drivers admitted to having nodded off at some time while driving, 29% of these in the past year and 10% in the past month, yielding an estimate of approximately 7.5 million drowsy drivers during one month (3). Finally, the National Sleep Foundation (NSF) 2009 Sleep in America Poll found that 28% of respondents who drive reported having ever fallen asleep while driving and 1% having had a crash or near crash due to drowsiness in the past year (4).
Numerous studies have indicated that persons with obstructive sleep apnea (OSA) are at increased risk for motor vehicle crashes (MVCs), with an estimated cost of $15.9 billion and 1400 lives lost attributable to crashes involving persons with OSA in 2000 (5,6). Whether drowsy driving should be a criminal off ense remains controversial (7,8). All states have statutes under which drivers can be charged with reckless driving (Table 22.1), but in most states to be found guilty requires that the driver be shown to have been aware of the consequences of his actions (legal concept of [mens rea]). If a driver can show it was reasonable that he did not think he would fall asleep while driving, he may avoid conviction (9).
As discussed below, patients’ perceptions of their risk of involuntarily falling sleep are often inaccurate and thus may contribute to their continuing to drive when at high risk for a drowsy driving crash. Only New Jersey has a statute (Maggie’s Law) that specifically labels driving while knowingly “fatigued” due to lack of sleep for 24 hours as reckless driving for which a driver may be charged with negligent homicide should a death result from a crash (10,11).
PHYSICIAN RESPONSIBILITY AND LIABILITY
Involvement of a patient with OSA in a drowsiness-related MVC resulting in serious injury or death poses a risk to their physician of being charged with negligence if it could be shown that the patient was not adequately warned of the risk of involuntarily falling asleep while driving or should have been reported to authorities as being at increased risk for drowsy driving. The latter situation may be especially pertinent if the patient is nonadherent to treatment. Physicians have been held liable in state courts for injuries to third persons caused by patients who were not adequately warned of the risks of drowsy driving due to medications (12) or driving with a medical condition that could cause loss of consciousness (13, 14 and 15). An American Medical Association policy (H-15.958 Fatigue, Sleep Disorders and Motor Vehicle Crashes) recommends that physicians “… inform patients about the personal and societal hazards of driving or working while fatigued …” and that they “… become familiar with the laws and regulations concerning drivers and highway safety in the state(s) where they practice” (16). Physicians have an ethical responsibility to attempt to mitigate risk of harm to their patient and to the public when they detect a condition that may impair the patient’s ability to drive safely, but legal requirements for reporting such patients vary by state (10,17). Some states require physicians to report to motor vehicle authorities all patients diagnosed with a condition on a specified list regardless of level of impairment present (mandatory reporting), while others require reporting only if the physician concludes that the condition is causing significant impairment of the capacity to drive ( functional reporting). Others have no mandatory reporting requirements but do allow reporting without risk of liability for breach of confidentiality if the physician considers the patient or the public to be at significant risk of harm (permissive reporting). An example of the latter is the author’s home state of North Carolina, which has a law (NC General Statutes, Chapter 20 Motor Vehicles, Article 2—Uniform Driver’s License Act) that states, “A physician or psychologist disclosing or not disclosing information pursuant to this section is immune from any civil or criminal liability that might otherwise be incurred or imposed based on the disclosure or lack of disclosure provided that the physician or psychologist was acting in good faith and without malice” (18). The American Medical Association has published a discussion of the ethical and legal obligations of physicians related to reporting of unsafe drivers to their state’s Department of Motor Vehicles (DMV) with a summary of requirements for reporting in each state (19). The current regulations for the state in which a physician practices should be obtained from the appropriate state DMV. A report of the Council on Ethical and Judicial Affairs of the AMA citing Opinion 5.50 states, “The obligation to safeguard patient confidences is subject to certain exceptions which are ethically and legally justified because of overriding social considerations” (20). Although indicating that physicians should make an effort to encourage patients to voluntarily report impairments to the DMV, the report states, “There may be situations, however, where clear evidence of substantial driving impairment implies a strong threat to the patient and public safety, and where the physician’s advice to discontinue driving is ignored. In these unusual cases, it is desirable and ethical for physicians to notify the Department of Motor Vehicles about medical conditions that may impair safe driving to enable the Department of Motor Vehicles to determine whether or not the patient can continue to drive.” HIPAA regulations regarding Individually Identifiable Health Information indicate that there are “uses and disclosures for which an authorization or opportunity to agree or object is not required” (21). Protected health information may be disclosed “… if the covered entity, in good faith, believes the disclosure: A. is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and B. is to a person or persons reasonably able to prevent or lessen that threat …”.
