Observations
Due to the physical requirements imposed by the regulations, the health of a commercial motor vehicle driver may be an issue in certain cases. However, counsel will almost always be required to present some foundational evidence or otherwise show reasonable suspicion of a physical problem to develop the issue during litigation. The motor carrier is responsible for making certain that only medically qualified drivers operate its commercial motor vehicles. Religious beliefs are unlikely to avoid these safety function regulations.
Medical Conditions And “Likely To Interfere”
While some medical conditions serve as an absolute bar to CMV operation, others only do so if they are deemed “likely to interfere” with the ability to drive a CMV safely. For example, the rules impose bright line prohibitions on the operation of a CMV by someone with certain cardiovascular diseases or insulin-controlled diabetes. Yet, a driver candidate with a history of severe orthopedic problems and bipolar disorder could obtain a medical certification if the physician found that those conditions were unlikely to interfere with his ability to safely drive a CMV.
The qualifying effect of the “likely to interfere” language throughout the regulations emphasizes an important consideration: the fact a driver has obtained a Medical Examiner’s Certificate does not necessarily mean he or she was properly tested or is currently fit to operate a commercial motor vehicle. Failure to fulfill the required qualifications with sufficient certainty should prohibit operation of a CMV. When there is a reasonable doubt about a driver’s physical qualifications under the rules, one would hope the medical examiner would err on the side of protecting the public rather than easing the process for the driver or motor carrier. Again, the unfortunate reality is that medical examiners that derive regular business from motor carriers have an unspoken financial incentive to pass drivers who are in a “gray area” in terms of physical or mental fitness.
Any regulatory inadequacy or loophole in this regard is not wholly the fault of the FMCSA. Only in cases of non-correctable vision or hearing deficits, insulin-dependent diabetes control or epilepsy is the medical examiner deprived of discretion and required to deny the Certificate. The fact is that most of the tests administered as part of a driver medical examination, and indeed much of the practice of medicine itself, necessarily require the examiner to exercise medical judgment and discretion. However, outside of requiring a driver to use corrective lenses or hearing aid or obtain a waiver or limitation to exempt city zones, the FMCSRs ultimately require a medical examiner to either pass or fail a prospective driver. Sympathy may play a role. A medical examiner is only human, and knows his or her decision may cause the denial or termination of employment for a blue collar worker. One “out” for a medical examiner confronted with certain medical conditions that in the exercise of medical discretion arguably do no warrant a denial is the FMCSRs’ allowance of a certificate for a shorter period, i.e. less than two years.
If there is any suspicion of a medical impairment as described in the regulations, counsel should not stop at obtaining production of a driver’s Medical Examiner’s Certificate. Additional discovery seeking the driver’s medical records and a copy of the medical exam itself should be aggressively pursued. The regulations themselves can be used to show the relevance supporting the disclosure of otherwise confidential medical information. An injured party should be entitled to driver’s medical records regardless of whether there is evidence of a physical handicap, since the law requires an affirmative showing that the driver is not disabled. In addition, offering to enter into a protective order that prohibits their disclosure outside of the case should convince most trial judges to at least conditionally overrule privacy-based objections made by defense counsel.
Employing a medical expert to assist in reviewing of the records is also advisable. Finally, be on the lookout for a short duration certificate. Arguably, the motor carrier should use a “tickler system” to track when a certificate expires.