After failing to block a court-ordered sleep apnea test for one of its drivers, Greyhound Lines reached a $6 million settlement with five passengers injured on a 2013 trip between Cincinnati and Detroit, when the bus drove off Interstate 70 in the middle of the night. By the time the bus came to rest, it had traveled at least a hundred feet off the highway and turned over several times.
The lead plaintiff maintained the bus driver had passed out; she and four other passengers suffered varied injuries, including neck and back injuries and compound fractures. They sued the bus line and the driver in Texas, where Greyhound is headquartered.
A key issue was why the driver lost consciousness; lawyers for Greyhound argued it was because he choked on some coffee he was drinking behind the wheel. But the Houston-based personal injury attorney representing the plaintiffs discovered that, five weeks before the crash, a Department of Transportation medical examiner who suspected the driver had sleep apnea and had advised the company to have the driver tested for that condition.
A frequently undiagnosed breathing disorder, in sleep apnea breathing is interrupted during a sleep session as often as hundreds of times. Left untreated, it can cause cardiovascular problems and chronic fatigue. The National Transportation Safety Board says driver fatigue is a factor in one-fifth of traffic accidents seen in its investigations.
To hold a commercial driver’s license, a driver must meet the standards set by the Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA), for knowledge, skills, and physical fitness; regular medical examinations are required.
Medical examiners are responsible for certifying a driver is fit to drive, not diagnosing or treating conditions. A medical examiner who suspects a driver has an undiagnosed or deteriorating condition must refer the driver to additional evaluation or testing.
Because Greyhound had not acted on the medical examiner’s warning and allowed the driver to stay on the road untested, plaintiffs asked the trial judge to order sleep apnea testing for the bus driver. Greyhound strenuously objected, but the judge agreed. Greyhound unsuccessfully appealed the order. Once it became clear the test would be done, the company began serious settlement talks, which led to the $6 million agreement.
How federal regulators should deal with sleep apnea remains a source of some controversy. In 2008, agency medical advisors had recommended screening all drivers for sleep apnea. But the FMCSA has never adopted official guidance on testing sleep apnea, much less mandated it. (Proposed guidance was withdrawn in April 2012, a week after it was proposed).
Following industry complaints some medical examiners were ordering testing based on unofficial criteria – such as the driver’s body mass index or neck size – in the fall of 2013, Congress passed, and President Obama signed, a law barring FMCSA from basing its sleep apnea policy merely on guidance statements; So if the agency wants to require sleep apnea testing, it must use formal rulemaking. To date, the agency has not issued official guidance or started rulemaking in the area.