Fleet Faces Drugged Driving

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Release date: 9/12/2017

Fleet Faces Drugged Driving (Originally published in NAFA FLEETSolutions September/October 2017)

In April 2017, a report released by the Governors Highway Safety Association revealed a shocking finding.

“In 2015, 43% of drivers who died in crashes, with a known test result post-autopsy, tested positive for drugs,” said Dr. James Hedlund, an independent safety expert with Highway Safety North in Ithaca, NY. If the percentage holds firm once followup studies are undertaken, it would mean that drugs are present more than alcohol in drivers who died in fatal crashes. “Drugs are definitely increasing – (the percentage) is up from 28% ten years ago in 2005.”

According to the research by the AAA Foundation for Traffic Safety, fatal crashes involving drivers who recently used marijuana increased in Washington after the state legalized the drug, more than doubling from eight to 17 percent between 2013 and 2014, based upon the Foundation’s most recently available data.

Canadian officials are watching intently. The country intends to legalize recreational marijuana by 2018.

It’s not a stretch of the imagination, given the breadth and severity of the problem: people under the influence of drugs will wind up behind the wheel, either while on the job or while sharing the road with your drivers.

Behind an Epidemic - The National Highway Traffic Safety Administration (NHTSA) tracks more than 400 drugs in studies. NHTSA indicated that marijuana accounted for 35% of positive tests reported. Amphetamines accounted for 9% of substances detected, and more than half of the positive tests in the report were caused by “other drugs.”

These can include prescription medications including opioids like OxyContin as well as illegal drugs like heroin. There is a correlation. As reported by the National Institute on Drug Abuse, of people entering treatment for heroin addiction that began abusing opioids in the 1960s, more than 80 percent started with heroin. Of those who began abusing opioids in the 2000s, 75 percent reported that their first opioid was a prescription drug.

“The two biggest drivers were the introduction of OxyContin and the movement within the medical profession, which encouraged the aggressive treatment of chronic pain,” said Colleen Carey, Assistant Professor of Policy Analysis and Management, Cornell University. “OxyContin was a slow-release medication, and the levels of the drug would never be as high as the quick-release version, Oxycodone.” Prior to the wide adoption of OxyContin, opioids were considered too dangerous to use for chronic pain.

“However, for many people, opioids induce sleep. They don’t necessarily have an immediate onset, so you may not immediately feel drowsy,” said Anna Lembke, Assistant Professor of Psychiatry Behavioral Sciences, Stanford University; and author of the book Drug Dealer M.D. from Johns Hopkins University Press. “But then, you get in your car and, quite literally, fall asleep mid-motion. That makes opioids especially risky when it comes to operating a motor vehicle.”

What does a drugged driver look like? The stereotypical preconception of a zoned-out junkie no longer applies. “The typical demographic of the (average) drug addicted person is that there is no typical demographic,” added Lembke. “Many people have become addicted to opioids in the last three decades through a doctor’s prescription…it can affect anybody (including) the middle-class employed.”

Can a single prescription to pain meds ultimately lead to long-term use? A recent study was published in the New England Journal of Medicine which suggested that it is indeed possible, and quite possibly one of the biggest contributors to the rise of addiction. One of the report’s authors, Dr. Anupam B. Jena, M.D., Ph. D., Ruth L. Newhouse Associate Professor of Health Care Policy at Harvard Medical School, used an average hospital emergency department as the subject.

“In those settings, patients don’t choose their doctors and doctors don’t choose their patients. It’s almost random who you happen to see,” Jena said. “We posited: if you are seen by a doctor who tends to be more liberal in his prescribing of opioids, what is the likelihood that you walk out with a prescription, and what is the likelihood that you’ll become a long-term user? And again, this is among people who we call ‘opioid-naïve,’ meaning they don’t come into the E.D. already using opioids.”

The study found a three-fold variation in how likely someone was to obtain a prescription, all from the same hospital, ranging from 7 percent to 20 percent. “Then we followed these people one year later,” Jena said. “If you happened to see a more liberal prescriber on the day you went to the E.D. versus a more restrictive prescriber, the likelihood of your becoming a long-term opioid user was 20 percent higher. That, to us, is strong evidence that the narrative where a single prescription could lead to long-term opioid use is, quite possibly, true.”

Fleet managers may not be able to keep their employees from being on the road with drugged drivers around them but are required to keep them out of their own vehicles. What is involved with doing so?

Negligent Entrustment - Individuals who are using drugs for the expressed purpose of getting high may be easier to identify than those who are using to cope with chronic pain. Those in the latter camp may be caught up in a sort of vicious cycle whereby the pain is caused or exacerbated by their work, then doctors prescribe the most potent drug they have to alleviate pain, and the drugs become a crutch to get through the work day.

Nonetheless, if a fleet operator has a suspicion that their driver is compromised but allows that driver the use of the vehicle anyway, the organization could be in for significant legal and financial suffering.

John Cruickshank, Attorney with Houston, Texas-based firm Alaniz & Schraeder, LLP, said that the fleet that knowingly or negligently allows a drugged driver to drive for them will always be liable for the crash, and damages meant to punish the defendant will always be sought. “That’s a terrible lawsuit to defend. Even if everything else that you have done as the corporation was the way I’d have drawn up for you, by the book, it’s still a terrible lawsuit. It doesn’t read well to a jury at all, and it reads terrible in the newspaper.”

“If a company’s driver is found to be under the influence of drugs at the time he causes (a crash), the company could be found to be responsible for the driver’s actions and held liable for damages resulting from the (crash),” said Gail L. Gottehrer, Partner with the law firm Akerman LLP. “If the drugged driver is driving as part of his employment and is injured in the crash, his injuries could be covered by workers compensation, which could lead to increased costs for the employer. Similarly, if the drugged driver injures another person or causes property damage while driving as part of his employment, the company would likely be sued by the injured person or the owner of the property and the company could be held liable for the damages resulting from the employee’s actions.”

NAFA Past President Claude Masters, CAFM®, has had the possibility of a drugged driving event affect his family. Fortunately, things did not turn out as tragic as they could have, but he raised the question: Your drivers are not on drugs. What about the drivers that share the roads with your vehicles?

“When I was learning to drive, cars and trucks were not as well-built as they are today,” Masters said. Fast forward to today where cars and trucks are precisely engineered, and drivers have allowed their skills to diminish due to the vehicles’ advanced technology. “So, when a deer runs out in front of (a vehicle moving at) 80mph, how likely is it that the driver will make a successful evasive maneuver? Compound this with the possibility that the driver has drugs or alcohol (or drugs and alcohol) in his or her system. Now, imagine your children driving down this same highway heading back to college for Monday morning classes. Are they trained and fully capable of avoiding this potential crash? My instincts and experience tell me ‘no’.”

In order to best prepare your fleet drivers for the compromised capability of others, Masters suggested that technology today is good and getting better by the year, but nothing beats quality defensive driving and crash avoidance education. “During the 1980s-1990s, most large employers had their own in-house drivers training programs. The era of budget-cutting and expense-tightening at most companies often meant these programs were first to be cut. Some companies still outsource this function. Others do not require any driver training at all.” Masters said that it is time that organizations got serious about this form of training again.

And even though technology is improving, it could also go against you, indicated Gottehrer. “It is important to note that the data from a company’s fleet telematics system could be used as evidence against it in a legal or regulatory proceeding relating to a drugged driver. If the data indicates that the drugged driver had been driving erratically, it could provide the basis for an argument that the employer knew, or should have known, that the driver was impaired and posed a safety risk and nonetheless allowed him to drive as part of his job duties.”

And concerning your drivers, what is a fleet manager to do? “Start by recognizing the problem for what it is and developing a mitigation strategy,” Masters said. “It begins by having a frank discussion with your management team, HR department, and personnel team. Discuss the industry data with them and show them the known cases that are supported by fact. Embrace technology that can help avoid and/or mitigate crash damage. Obtain driver training that increases awareness and improves driving skills. Take it home with you and ‘own’ it.”

The doctors, lawyers, and fleet professionals agree, no matter how sympathetic you may be to a drugged driver’s extant medical situation, do not let them drive. Too many lives are at risk.

Tough Questions And Hard Choices - A drug addicted driver may have tragic circumstances contributing to where they now find themselves. Nonetheless, they pose a severe risk to themselves and to others.

“Most American adults drive as a part of their everyday lives, but unfortunately, in the language of economics, there are externalities here,” Prof. Carey said. “I have a cousin who has epilepsy. She may have a seizure only once a year, but she’s not qualified for a driver’s license. So this is a real moral question: what regulations are justified in order to keep the roads safe?”

“There are all kinds of things a company should support to help this person get treatment,” Dr. Lembke said. “There are medications, psychosocial interventions, group therapies, and spiritual interventions. Addiction is a chronic relapsing and remitting disease, so we need to anticipate that relapse will happen. The response shouldn’t be firing the individual, but there should be a swift, certain, and fair sanction, such as mandated treatment. That’s much more effective than some severe consequence in the uncertain future.”

Cruickshank took the pragmatic view that “…I am a big believer (in companies providing addiction recovery assistance) and having some kind of procedure in place for that. It certainly looks better to a jury if you have this.”

“If we knew that someone who has a prior history of crashes or speeding has a 10 percent higher risk of being in a crash in the future, they would never be hired to drive for a company,” Dr. Jena said. “If we thought that driving under the influence of opioids raised your risk of being in a crash, by 10 percent…from an employer’s perspective, (not hiring them or not allowing them to drive for you) would be a very reasonable thing to do.”

And Masters concluded that, by all means, this is work you need to take home. “Having that (drugged driving) discussion with your family and loved ones is paramount. If you know someone that has a problem, get them the help they need. This is a problem too big to ignore. Don’t wait until you get that call you never want to receive!”

Vicious Circle - What if a driver becomes addicted to pain meds through the course of his or her work? According to Gail L. Gottehrer, Partner with the law firm Akerman LLP, “If a driver claims that the employer is responsible for their addiction to opioids or prescription drugs because his addiction resulted from medication prescribed by a doctor for a workplace related injury, the company could be at risk for extended workers compensation costs if the driver requires medical treatment for the addiction or dependency (that arises out of the workplace injury) for years.”

Gottehrer cited several recent state court cases wherein overdoses by employees from opioids prescribed to them for workplace related injuries were held to be covered by workers compensation. “In these cases, the employees’ deaths were found to be causally related to their work related injuries and therefore compensable by workers compensation, and their families were awarded death benefits.”