Sleepless in Seattle: injured worker's case shows hazards of fatigue.

Dave Truitt was the ultimate company man. A 20-year veteran of the pipefitting trade, he loved his job as a foreman for the J.H. Kelly Construction Co. in Seattle. So when Kelly had to rush a building project in September 1991, Truitt reported for duty before dawn --and worked for more than 36 hours straight.

On his way home, Truitt fell asleep at the wheel and veered off the road. According to a witness, his car flipped over several times and slammed into a telephone pole. Truitt, then 39, survived but suffered devastating brain injuries.

Last June, Kelly agreed to pay a substantial settlement to Truitt after he sued the company for keeping him on the job too long. His lawsuit alleged that his supervisors should have realized he was dangerously sleepy and kept him off the road--either by driving him home or sending him to a motel. (Truitt v. J.H. Kelly Construction Co., No. 92-2-00983-6 (Wash., Lewis County Super. Ct. June 16, 1993).)

Truitt and other cases around the country are bringing the science of sleep into the courtroom and raising questions about who is to blame when fatigue results in injury. Employers arc being challenged for requiring employees to work allegedly unreasonable hours in a variety of workplaces, from emergency rooms to fishing boats to fast-food restaurants.

"In our culture, we're expected to work long hours. Sleep deprivation is a way of life," said Seattle attorney William Bailey, who represented Truitt. "I had no idea how dangerous it really was."

Recent sleep research has shown that the body keeps track of sleep the way a creditor tallies overdue bills. When people don't get the sleep they need, the body accumulates a "sleep debt," according to Dr. William Dement, chair of the National Commission on Sleep Disorders Research. "It's like a credit card. It doesn't go away," said Dement, who teaches sleep disorders medicine at Stanford University. Congress appointed the commission in 1988 to study human sleep patterns and needs.

The commission found that the sleep debt builds until the person pays it off by getting extra sleep. When the debt is large enough, the urge to sleep can become overwhelming--especially when outside stimulation is removed (as when a person stops working) and during late-night hours when the body is naturally programmed to rest. Under those conditions, Dement said, sleep becomes irresistible.

"As you approach the moment of sleep ... you have a tremendous impairment of judgment, reaction time, and memory" he said. "At that point, you might as well have had a pint of whiskey."

Fatigue has been blamed at least in part for a number of high-profile disasters and thousands of little-noted ones. According to the National Transportation Safety Board (NTSB),

* The Exxon Valdez oil tanker ran aground off the coast of Alaska in 1989 partly because the third mate, who had been left in charge of the bridge, was "fatigued . . . and overburdened as a result of an extensive workload."

* Crew fatigue was partly responsible for the 1990 crash of an Avianca jet on Long Island, New York. The jet ran out of fuel on its second attempt to land at Kennedy International Airport, and 73 people were killed.

* A 1990 NTSB study of 182 fatal truck crashes found that driver fatigue was the probable cause in almost a third of the cases. No other cause was cited as often.

A separate study by the Arlington, Virginia-based Insurance Institute for Highway Safety found that truck drivers routinely violate federal regulations governing the number of hours they may drive without resting. In a 1991 survey of tractor-trailer drivers, almost three-fourths admitted violating hours-of-service rules, and 19 percent admitted falling asleep at the wheel at least once during the preceding month.

Although these findings suggest the catastrophic potential of sleep deprivation, especially in the transportation industry, attorneys say litigation on the issue has thus far focused on the effects in the workplace.

Bailey said his firm has pressed several sleep-deprivation claims under maritime law for workers injured aboard fishing boats and fish-processing vessels. In one case, a worker's hand was crushed while the fishing boat he was working on was docked in an Alaskan port. The worker, a college student, had worked 18 to 20 hours a day for several weeks, Bailey said, and the captain had refused to allow him to rest until the boat was back out to sea. The case was settled. (Almond v. F/V Haida Warrior, No. C91-916Z (W.D. Wash. May 24, 1993).)

Cases Target McDonald's

Other lawsuits have alleged that fastfood restaurants have kept eployees on the job until, like Truitt, they were too drowsy to drive home safely. In Portland, Oregon, 18-year-old Matthew Theurer was killed and anothe motorist injured when Theurer dozed off at the wheel on his way home from work almost six years ago. He had put in an all-night shift at McDonald's afterworking the previous afternoon.

Frederic Faverty the other driver, sued McDonald's Corp. for negligence. "It's analogous to a liquor liability case," said Robert Neuberger, Faverty's lawyer. "They created an impairment in the boy that was no differcnt than if they had given him liquor. They knew he had to drive, and they knew he was tired."

A jury apparently agreed and awarded Faverty damages. (Faverty v. McDonalds Corp., No. 9001-00394 (Or., Multnomah County Cir. Ct. Mar. 29, 1991).) Mc-Donald's appealed the verdict, and oral arguments in appellate court were scheduled for November.

The Oregon Court of Appeals was also expected to hear oral arguments last month in the wrongful-death suit brought by Theurer's mother. Portland attorney Lawrence Wobbrock appealed the trial court's ruling that the case was covered under Oregon's workers' compensation statute. (Krushwitz v.McDonald's Restaurants of Oregon, No. 9104-02047 (Or., Multnomah County Cir. Ct. filed Apr. 3, 1991).)

Faverty has far-reaching implications for all employers with long business hours, said Jim Coleman, general counsel for the National Council of Chain Restaurants, which filed an amicus brief on McDonald's behalf.

"Where are you going to draw the line?" he asked. "The logical extension of this is that the employer had better be an expert on [employees'] physical and mental [condition] and better do good threshold interviews of everyone going out the door to make a determination of who's tire. . . . The thing that bothers us the most is setting a standard for employers th t will cause them to have to make judgment calls far beyond their abilities."

He said the case could crete liability in other situations as well. "If this holding is allowed to stand, I see no difference between this case and someone coming home from work and beating somebody up because they had a bad day," Coleman said. "That employer could be held liable."

McDonald's is defending another suit in Texas, where the victim was a 16-year-old employee rendered quadriplegic in a car crash. (Garvey v. McDonald's Corp., No. 92-00256 (Tex., Travis County Dist. Ct. amended petition filed Sept. 14, 1993).) Matthew Garvey had worked late two nights in a row, and on the second night, his supervisor demanded that Garvey drive him home at 1:30 a.m. After driving 30 miles to the supervisor's home, Garvey fell asleep at the wheel, said his lawyer, former ATLA president Bob Gibbins.

He said McDonald's should have had policies that would have prevented Garvey from working so late and the supervisor from pressuring an employee for a ride home. "This whole tragedy could have been averted," Gibbins said.

Drowsy Doctors

New York City lawyear and journalist Sidney Zion feels the same way about the death of his 18-year-old daughter, Libby, at New York Hospital in 1984. Zion's lawsuit against four doctors and the hospital has injected the sleep issue into the medical negligence arena.

Libby Zion was admitted to the hospital with a high fever. She died eight hours later after suffering a heart attack. Her father charges that exhaustion caused dents to make a fatal mistake: They prescribed the painkiller Demerol even though Libby had told them she was taking Nardil, an antidepressant. Had the doctors consulted the Physicians' Desk Reference, a widely used text, they would have learned that mixing the two drugs can be lethal, the suit say.

One of the residents treating Libby, had been on duty 19 hours; the other, 15 to 17 hours, said David Bamberger, a member of Zion's trial team. He said fatigue made the doctors unable to accurately assess Libby's condition and resulted in negligent care.

"This case involves a clear failure of judgment by the physicians to understand the severity of Libby's condition," Bamberger said. "Because they are well-trained, well-educated physicians working at a top hospital, we think it's hard to attribute their lack of judgment to any other cause" than exhaustion.

The case is scheduled to go to trial next month. (Zion v. New York, Hospital, No. 15353/85 (N.Y., New York County Sup. Ct. filed June 27, 1985).)

A grand jury investigating Libby Zion's death concluded that she received "woefully inadequate care" and recommended that the state restrict residents' work hours. In 1989, New York adopted regulations that prohibit residents from working more than 80 hours a week. Previously, residents had often clocked more than 100 hours weekly.

Plaintiffs' attorneys in sleep-deprivation cases say, that Iimits on work hours in other jobs would keep weary workers from posing a danger to themselves and others. Like pilots who are required to rest after they log a certain number of flight hours, overtired fry cooks should be kept off the road, Wobbrock said. Although the danger may not seem as severe, he said, "It's the same principle."

Dement predicted sleep-related litigition would increase until people are educated about their sleep needs and take them seriously. "The power of sleep is camouflaged," he said. "We think we can deal with it, but it takes us by surprise."