A question regarding Apnea, driver licensing & insurance

[Steve of Cornubia]

I live in Australia, so some of what I'm wondering about will apply differently, in other countries.

When I was first diagnosed and went to see the sleep doctor (actually a nurse/technician in a practice operated by or endorsed by ResMed) she told me that I must notify the roads and transport folks of my condition, because it is considered to be a 'declarable condition' that could affect my ability to drive safely. She said that, if I didn't notify them, then they would! I was also told to go online to check what my responsibilities are in law.

So I went online and found that I should complete an online form, stating that I had apnea, which I did. Fifteen minutes later, I got a call from Transport to tell me that I must provide a doctor's declaration saying I was fit to drive and that, if I didn't do so within around one week, my license would be suspended! By this time I was feeling a bit threatened and fearful that I might lose my license, and all because I had 'done the right thing' by letting the authorities know. It's not that I think I shouldn't have to; I just feel the rapid and heavy response (IMO) is a bit intimidating and downright scary. I knew none of these risks before I had my sleep study.

Anyways, I will be seeing my GP later today and she will hopefully fill out the declaration. Fingers crossed. It would be an enormous blow to me if I lost my license, as a petrol-head car nut for over forty years.

All this got me to thinking. The sleep nurse said I absolutely MUST be compliant when prescribed CPAP because, if I had an accident and was found NOT to have used my machine the night before, the insurance company could refuse to honour any claim. Knowing how hard insurance companies fight to avoid paying out claims, I take this advice very seriously. However, it made me wonder if this had happened to anybody on here, and whether their insurance company or the police had demanded to see their data. Also, it made me wonder if having a machine that records usage is a good thing after all, when the information could potentially be used against you. Do any good CPAP machines NOT record usage? Don't get me wrong, I don't plan to skip treatment, but just last night we had a big storm and lost our power overnight, so I couldn't use my machine.

The ramifications of all this are a bit scary. Your thoughts?

[Drowsy Dancer]

It's not like this for non-commercial drivers in the USA AFAIK.

Edited to add: state-by-state rules (may be outdated) compiled by the NHTSA on reporting requirements: http://www.nhtsa.gov/PEOPLE/injury/oldd ... pter8.html

If you're a trucker, the rules are a little different: http://www.fmcsa.dot.gov/safety-securit ... Apnea.aspx

If there was an accident in the USA, and if there was a lawsuit stemming from it, the driver's medical records would be subject to discovery in the lawsuit. Whether medical records included the data from a data-capable CPAP machine would, I suppose, depend on the sophistication of the plaintiff's lawyer.

If the driver either didn't use his or her machine at all (generally non-adherent to treatment) or skipped using it the night before, then that would be evidence that the person was impaired by lack of sleep, which could lead to a finding that he or she was negligent in operating the motor vehicle.

It's an interesting question. If you know you have sleep apnea, and you get behind the wheel of a car untreated, is this a negligent act?

In my view, if you know you're impaired, whether by alcohol or by lack of sleep (or by distraction), you're rolling the dice when you choose to get behind the wheel of a car. The day I fell asleep (briefly) behind the wheel of a car (12/26/2010) was the day I realized I had to seek medical advice about my own condition. I did not stop driving until I got CPAP, but I have never driven again while feeling at all drowsy (I drank a LOT of coffee in the less-than-two-month interval between my "wake-up call" and my first night with my machine.

(The question becomes more subtle once you start throwing in variations like, the person is faithfully adherent to treatment but it isn't very effective because his or her sleep doc is an idiot and prescribed a bad pressure).

[ughwhatname]

It's not like this for non-commercial drivers in the USA AFAIK. If you're a trucker, the rules are a little different: http://www.fmcsa.dot.gov/safety-securit ... Apnea.aspx

If there was an accident in the USA, and if there was a lawsuit stemming from it, the driver's medical records would be subject to discovery in the lawsuit. Whether medical records included the data from a data-capable CPAP machine would, I suppose, depend on the sophistication of the plaintiff's lawyer.

If the driver either didn't use his or her machine at all (generally non-adherent to treatment) or skipped using it the night before, then that would be evidence that the person was impaired by lack of sleep, which could lead to a finding that he or she was negligent in operating the motor vehicle.

It's an interesting question. If you know you have sleep apnea, and you get behind the wheel of a car untreated, is this a negligent act?

In my view, if you know you're impaired, whether by alcohol or by lack of sleep (or by distraction), you're rolling the dice when you choose to get behind the wheel of a car. The day I fell asleep (briefly) behind the wheel of a car (12/26/2010) was the day I realized I had to seek medical advice about my own condition.

(The question becomes more subtle once you start throwing in variations like, the person is faithfully adherent to treatment but it isn't very effective because his or her sleep doc is an idiot and prescribed a bad pressure).

It seems that a new mom could be one who is even more impaired with sleep deprivation, yet I've never heard of that being used as evidence of impaired driving.

[Drowsy Dancer]

It seems that a new mom could be one who is even more impaired with sleep deprivation, yet I've never heard of that being used as evidence of impaired driving.

I bet it will be in this case! http://www.illinoistruckaccidentlawyerb ... n_i29.html

[ughwhatname]

It seems that a new mom could be one who is even more impaired with sleep deprivation, yet I've never heard of that being used as evidence of impaired driving.

I bet it will be in this case! http://www.illinoistruckaccidentlawyerb ... n_i29.html

Though that example isn't related to sleep deprivation, but to distracted driving.

As another example, what about the college student pulling an all-nighter during finals week? Would their school schedule being brought forth as "evidence?"

[Drowsy Dancer]

It seems that a new mom could be one who is even more impaired with sleep deprivation, yet I've never heard of that being used as evidence of impaired driving.

I bet it will be in this case! http://www.illinoistruckaccidentlawyerb ... n_i29.html

Though that example isn't related to sleep deprivation, but to distracted driving.

As another example, what about the college student pulling an all-nighter during finals week? Would their school schedule being brought forth as "evidence?"

"Evidence" is anything a judge says it is. The student's sleep deprivation might, in fact, be argued to be relevant, citing information from the NSF, and a judge just might let it in: http://drowsydriving.org/about/whos-at-risk/

I thought this was interesting:

The risk of having a crash due to drowsy driving is not uniformly distributed across the population. This is due to two factors. First, crashes tend to occur at times in keeping with one’s circadian rhythms when sleepiness is most pronounced, for example, during the night and in the mid-afternoon. Thus individuals who drive at night are much more likely to have fall-asleep crashes. Second, people who are excessively sleepy either because of lifestyle factors or because of an untreated sleep disorder are more likely to have crashes related to excessive daytime sleepiness. Research has identified young males, shift workers, commercial drivers and people with untreated sleep disorders or with short-term or chronic sleep deprivation as being at increased risk for having a fall-asleep crash.

[Steve of Cornubia]

I suppose the chances of being found culpable in a crash because of sleep deprivation could be argued, but my point is that the data from 'smart' CPAP machines could potentially be used against you following an accident. Of course, the data might show that you used your machine as per instructions, but if you had only a few hours sleep, decided to have a night off, or had a machine breakdown, the evidence is right there.

[-tim]

The data from a Resmed S9 is digitally signed to prevent tampering. Cracking it in the US meets the DMCA's anti-circumvention rules which could lead to federal charges. I expect the level of digital signing would be considered enough by most judges in Australia. I'll bring it up with some of the barristers I know the next time they get into a "what if" but their results might be Rosé tinted.

It appears that CASA only cares if your Epworth scale is above 9 requires investigation. (but it might have to be reported above 4 or 6). The limit for sleep apnea diagnosis is higher in the US than Australia. When I was visiting a Doc in a Box in the US, I asked for a US APAP prescription and gave him my sleep report and Aussie prescription and an explanation about cost of buying equipment. He said he would give me a script based on the existing prescription but what was in the report wasn't enough for insurance companies.

From another forum about the US FAA:

The doc's letter has to say four separate things in plain english:
(1)Appear well rested
(2)No apparent tendancy beyond normal to fall asleep
(3)Compliant with treatment (that's what the printout is for).
(4)No overt right heart failure.

Add the CPAP printout showing more than 75% of nights with 6 hours or more of usage, and you're done.

The FAA has a particularly evil test known only to those who misbehaved at Jesuit Catholic schools and the FAA known as the Maintenance of Wakefulness Test (MWT) where you sit in a comfy spot in a darkish room and wait for hours and do noting else. I expect the chairs might be more comfy in the FAA version of this test but I doubt they have the Ninja appear out of no where with a smack on a table with "another two hours" if you doze off.

So if you can drive an airplane in two countries, I would think you could drive a car but I wonder just how strict the road groups are about this. It takes more hours of practice to drive a car in Vic today than to fly an airplane. The VicRoad's web site says:

Don’t drive until your condition has been investigated by a doctor and treated.
You are required by law to report any serious or chronic medical condition or disability that could affect your fitness to drive. A medical review will assess your ability to drive safely and hold a licence.

A friend's father failed to do that and ended up running into one of the few trees in a median on the major rural highway. Had that tree not been there, there would have been more carnage.

[Drowsy Dancer]

I suppose the chances of being found culpable in a crash because of sleep deprivation could be argued, but my point is that the data from 'smart' CPAP machines could potentially be used against you following an accident. Of course, the data might show that you used your machine as per instructions, but if you had only a few hours sleep, decided to have a night off, or had a machine breakdown, the evidence is right there.

Yes, I think it could. My point is that I don't see that as automatically unfair. It's just one piece of evidence, and doesn't establish causation conclusively, it would just allow an inference to be drawn. For criminal charges all elements have to be established beyond a reasonable doubt. I'm thinking more of civil liability right now.

Counsel (and law enforcement) can get your cell phone records to see if you were texting right before an accident, which strikes me as similar.

[Steve of Cornubia]

...........Counsel (and law enforcement) can get your cell phone records to see if you were texting right before an accident, which strikes me as similar.

Absolutely. I'm not saying this is unfair or unreasonable, just that folks who are using machines that capture usage data should be aware that said information could be used against them in the event of a car crash. Once your apnea has been declared to the authorities (and your insurance companies I'm guessing - will find out today) then you are 'on their radar' and there is then the possibility that your apnea and therapy compliance could be examined after an incident.

Mainly, I'm concerned about insurance. I have had personal experience of an insurance company quite blatantly and unfairly (IMO) wriggling out of a claim due to a petty get-out clause. The small company I worked for was teetering on the brink of going under, but we were fighting back when our offices were burgled and all our computing and expensive test gear was stolen. When we tried to claim for loss, the insurance company demanded to see the maintenance records for the security system. It turned out that a scheduled maintenance was performed three days late, some months before. Not our fault, and the system worked perfectly, yet the fine print said we must keep the system serviced as per the schedule and so they refused to pay up. We went bust a few weeks later.

The analogy with apnea is that you could have a car accident that wasn't due to sleep deprivation, but if your data showed you hadn't used your machine the previous night, could the insurance company refuse to pay up?

[chunkyfrog]

In traffic school (Yes, I went), they said that drowsy drivers are as impaired as drunk drivers.
Now we need to consider the worst; and ask ourselves,
"Could I live with myself after taking an innocent life, even though it was not intentional,
save that I chose to drive while impaired?"
(Sheriff; I was doing 46 in a 35--a deserted "revenue" road -with a trap)

[Catalytic]

The results I was given after my sleep study have this in the "treatment" recommendations:

5. The patient should not drive or conduct any activity which requires him to be alert, until effectively treated.

I have no idea whether they report patients to the DMV, and my DL isn't from this state, so I honestly haven't worried about it.