Semi Stoned: It's Not Illegal to Take Opioids if You're Behind the Wheel of a Big Rig
Illustration by Justin Renteria
Sometime between 11 and midnight on January 3, 2014, Latasha Allen is talking with her husband, Robert Smith, who has just returned home after burying his older sister in the Carolinas. They’re in the downstairs bedroom of their suburban Cypress dwelling when Allen’s cell phone rings. The ER at Conroe Regional Medical Center is discharging a suicidal patient, and the staff there needs her help.
Allen’s juggling a lot at the moment. The 40-year-old is completing a PhD in clinical psychology while helping her daughter raise a young son. Allen already has two postgraduate degrees: an MBA and a master’s in health-care administration. Within the month, she’ll defend her dissertation — a significant step toward earning her latest diploma.
Less than a year ago, Allen picked up a second part-time job, adding to an already formidable workload: a career managing sexual abuse investigators at Child Protective Services and a weekend gig at Tri-County Mental Health and Mental Retardation Services, the employer who’s dispatching her to the ER right now.
Smith is used to his wife leaving late at night for work because Allen considers helping people in hard-hitting situations her calling. (“You name it, I’ve seen it,” she says.) Unfazed by the grim nature of the summons, the couple walk through their home, which is all beige and brown, modern art and high ceilings. They part the way they usually do. “Be careful, baby,” Smith rumbles, and he gives Allen a “safety kiss” before she slides into her Smart car and steps on the gas.
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Truck driver Michael Osbourn is headed up U.S. 59, and he’s tired. Tired from giving his ailing wife around-the-clock care. Tired from the heavy lifting required to operate 18-wheelers.
Like too many Americans, Osbourn lives with chronic pain. His soft, 62-year-old body won’t cut him a break; it’s already overrun by rheumatoid arthritis, coronary artery disease and peripheral vascular disease, which restricts blood flow to his legs. His lower back aches constantly.
Itching for a drag of nicotine, Osbourn leans his five-foot-seven-inch frame back in the driver’s seat of the Kroger delivery truck that he’s steering northbound. The road is straight and level, the sky clear and dry. Thirty-two tons of metal hurtle along the highway.
There’s no comprehensive account of what happens next. According to Osbourn’s primary care doctor, the truck driver loses consciousness; according to his Kroger supervisor, Osbourn doesn’t see the car to his left at all. But he definitely feels an abrupt irregularity on the road — a bump — and he doesn’t know what it is.
The bump is Latasha Allen’s car. Moments earlier, she was sailing up the highway, two lanes to Osbourn’s left. Then the truck started to drift toward her car, looming over it, until the two vehicles made contact with a screech, the larger forcing the smaller into the traffic barrier on the Smart car’s left side.
Now Allen hears the grind of machine against concrete divider and feels a violent lurch; her car has flipped over the barrier. She’s ejected through the back of it and lands, broken and bleeding, in a rush of oncoming southbound traffic. It’s not yet 2 in the morning.
Eight months later, Allen’s lawyer, Rob Ammons, learns that Osbourn was regularly taking Vicodin during the three years preceding the crash, without Kroger knowing. By January 4, 2014, the trucker had popped four hydrocodone-acetaminophen tablets a day for the previous year, according to medical records subpoenaed by Ammons. That’s a grand total of 1,620 pills over 12 months — and Osbourn retrieved every last one from Kroger’s own pharmacy.
Vicodin is classified as an opioid, a pain reliever that resembles opium in chemical structure. Like most opioid-consuming Americans, Osbourn procured his in a way that seemed perfectly innocent — by getting a prescription from his primary care physician.
The term “epidemic” has been applied with such casual frequency to the current state of our nation’s opioid crisis that the modifier now smacks of cliché. Still, it isn’t off the mark. Opioid use is rampant and increasing, and the CDC has the statistics to prove it: Health-care professionals prescribed so many painkillers in 2012 that, in theory, every American adult could have received his or her own bottle of pills that year. Between 2001 and 2013, the national number of opioid overdose deaths quadrupled, jumping from 4,030 to 16,235.
Although human beings have been using opium derivatives for thousands of years (the Sumerians of southern Mesopotamia, modern-day Iraq, called poppy the “joy plant”), the United States’ robust appetite for chronic-pain—fighting opioids dates back only 25 years.
Before the mid-1980s, American doctors generally reserved long-term opioid prescriptions for patients with terminal cancer because they recognized the drugs’ addictive potential. But around that time, medical professionals started to wonder if pain patients were being under-medicated. After a flurry of scientific studies — some of which suggested that opioids taken for chronic pain might not be so addictive after all — drug companies seized their chance: Between 1994 and 2014, the FDA gave the go-ahead to more than 24 opioid products for treating persistent pain.
The new nod to opioids meant that doctors could now more easily prescribe them to patients recovering from surgery or fighting cancer. But it also meant that they could now prescribe other kinds of patients highly addictive drugs — an inviting option, given the pressure physicians were increasingly facing to process patients quickly.
As Americans fretted about illegal narcotics, doctors distributed legal pills as if they were candy, and patients developed a strong taste for the medication.
“As you take opioids, you become tolerant to them, so it takes more and more of the drug to get pain relief,” said Dr. Thomas Kosten, professor of psychiatry, neuroscience and pharmacology at Baylor College of Medicine.
Osbourn’s Kroger truck forced Allen’s car up and over the concrete traffic divider on U.S. 59, where it landed in oncoming traffic.
Photo courtesy of Trooper John Sullivan, Texas Department of Public Safety
Allen was hit by a man who took drugs, but more specifically, she was hit by someone who took legally obtained medication. She finds it troubling that, as a consequence, her kind of accident — in her words — “has no name.”
It’s possible that a vocabulary specific to opioid-induced accidents hasn’t developed yet because identifying and categorizing them is such a challenge. Police don’t test drugged drivers if they’re not visibly intoxicated, and signs of opioid use can be extremely subtle. Houston Police Department drug recognition expert Don Egdorf knows from years of experience that constricted pupils are a dead giveaway, but drug recognition experts generally see drugged drivers only once they’re arrested, not at the scene of the crash.
Michael Osbourn’s pupils might have been smaller than usual the night of the accident, but he wasn’t arrested, and he wasn’t drug tested. The fact that he was taking Vicodin wouldn’t have come to light at all were it not for the Allen lawsuit. And Ammons considers himself lucky to have acquired proof of Osbourn’s opioid use: Defense attorneys often thwart plaintiff attempts to obtain medical records, he said.
Ammons added that just because opioid-induced accidents are difficult to detect doesn’t mean that they should be perceived as unique.
On June 4, 2004, a doctor’s office receptionist careened onto a highway in Nevada while high on opioids, hitting two men ages 21 and 33, respectively. The first, George Sanchez Jr., was killed on impact. The second, Robert Martinez, sustained a head injury and a broken leg. In a landmark move — possibly the first to pin liability on a pharmacy after a customer causes a fatal car accident — Martinez sued Walmart (in the end, the Nevada Supreme Court ruled in favor of the pharmacy).
In 2010, truck driver Nathan Richardson was driving down State Highway 149 in Upshur County, Texas, when he rammed into Mary Barksdale’s car, decapitating her in front of her horror-struck husband. Subsequent testing showed that Richardson had been mixing marijuana, liquor, Xanax and opioids. Mary’s husband, Robert, sued the driver and his employer, Trendsetter Construction, in a case that was eventually settled.
“There are cases around the country,” said Ammons. “Frankly, to me, this isn’t about the individual driver. This is about the breakdown of the system. And [Osbourn’s] not responsible for the system.”
On February 21, 2014, Ammons filed Allen’s civil suit against Osbourn and Kroger in state district court. Osbourn was never criminally charged in the accident.
Osbourn and his attorneys, Troy Williams and Sarah Jones, declined to comment on the accident and the events that led up to it, but medical records and the depositions of Kroger employees help tell the story.
In a deposition dated December 10, 2014, Kroger transportation manager Scott Christy said he couldn’t think of a single driver at his place of work who had a poorer record than Michael Osbourn. From the time he was hired in 2009 up until the date of the accident, Osbourn had 16 instances of misconduct. Most of them were minor, like dropping deliveries late, but in March of 2009, he blew out two tires while parking his truck. Eight months later, Osbourn rear-ended a vehicle on U.S. 290, injuring its occupant and sending her to the hospital.
But Kroger pursues disciplinary action against drivers only if multiple offenses occur within six months, Christy explained, and Osbourn’s misconduct was spread out over a period of four years. The transportation manager added that he didn’t talk about medical issues with his employees unless they approached him first. Health-related matters were outside his purview, Christy said, holding fast to that defense even as he admitted that he didn’t know how many of the 80-odd drivers he was supervising might be taking Vicodin. That, he said, is the business of Dr. Patricia Janki, the Department of Transportation-certified professional Kroger paid to evaluate its drivers.
Christy was none the wiser when Osbourn’s primary care physician, Dr. Victor Mendiola, prescribed him Vicodin for lower back pain on January 21, 2011. He had no idea that Mendiola was making a popular decision (data from health-care consulting behemoth IMS Health show that generic Vicodin has been the second-most prescribed drug nationally for the past five years).
And Christy didn’t know that, when Osbourn visited Janki in October 2011, he would begin a pattern of lying to her that wouldn’t end until years later.
Under DOT guidelines, truck drivers like Osbourn have to visit doctors like Janki at least every other year to maintain certification and employment.
In their first visit, Janki performed a routine assessment on Osbourn: She looked at his ears and nose, mouth and throat, checked his heart rate, and ensured that his orientation to time and place wasn’t distorted. Then she asked him the usual questions: Did he smoke? Nope. Was he taking narcotics? Osbourn said he wasn’t.
In fact, Osbourn had been smoking two packs of cigarettes a day for 30 years, and he had recently swallowed a Vicodin tablet prescribed by Mendiola (take orally as needed, the doctor’s notes had said, every six hours for back pain).
Janki knew none of this. Thoroughly unaware Osbourn was taking a drug that could pose a threat to himself and his community, she certified him and moved along to her next patient.
The DOT doesn’t ban opioid use among truckers, and it doesn’t require that they be tested for the drugs, either. Here’s why: Opioids affect different bodies in different ways, which means that some people are able to drive on painkillers without endangering the public, while others can’t make it down stairs on them.
“No studies are 100 percent proof that the meds will cause the inability to drive,” said Dr. Brian Bruel, associate professor at the University of Texas MD Anderson Cancer Center and treasurer of the Texas Pain Society, a group of medical professionals who manage acute and chronic pain. An incessantly ill individual who has been taking opioids for years might have developed the ability to function on them, he explained. A patient who pops a Vicodin for the first time post-dental surgery, on the other hand, will definitely feel woozy.
That said, Vicodin bottles do warn consumers that the drug can impair the faculties needed to drive a car.
Four years after she certified Osbourn for the first time, Janki learned the truth about her patient’s drug history during her January 28, 2015, deposition.
“I’m just flabbergasted…that he was on this much narcotic,” she said, adding that the quantity of Vicodin Osbourn had been prescribed was “a bit excessive.”
“If he had disclosed the amount of Vicodin that he was taking, would you have cleared him to drive on our roads, streets and highways?” Rob Ammons asked.
“Never,” said Janki.
Osbourn appeared for another physical with Janki in October 2012. Again, he denied using narcotics (medical records show that, in reality, Mendiola was still prescribing him the same dose), and again, Janki cleared Osbourn to drive trucks.
The cycle repeated itself in February 2013, but this time the conversation changed: Osbourn told Janki he was taking Vicodin.
“He said he would take it off and on, only at nighttime,” Janki said during her deposition.
Janki told Osbourn that he had to stop taking Vicodin if he wanted to continue driving commercial trucks because it could cause accidents. Then she faxed a note to Mendiola requesting a replacement medication for Osbourn. “Vicodin is a no-no,” she chided. “He needs substitution.” Janki put Osbourn on medical hold and told him to bring her a form from Mendiola’s office showing that the primary care doctor had agreed to stop prescribing Osbourn Vicodin.
Osbourn returned 20 minutes later, clutching the requisite form. Janki cleared him one last time.
For some reason that remains obscure, Mendiola didn’t stop giving Osbourn Vicodin. During the year that followed the February appointment with Janki, Osbourn received five prescriptions and nine refills, not including the single prescription and three refills Mendiola had already written in January. And in May 2013, the physician increased his patient’s dose.
Janki was appalled to learn, years later, that Osbourn had lied. “I depend on him,” she said during her deposition. “He told me no. It’s totally deceptive. I don’t know his reason for not being truthful.”
It was far from the first time a patient had lied to a doctor. In 2005, patient dishonesty led to the passage of a federal bill called the National All Schedules Prescription Electronic Reporting Act, which required all states to have electronic prescription monitoring programs. The idea was that doctors and pharmacists could log into their state’s website and look up patients to see what controlled substances they were taking and where they were getting them from — all so that drug consumers couldn’t con the system.
Today all states but Missouri have electronic monitoring systems. (Missouri passed its legislation this year but has yet to implement it.) The Texas version, Prescription Access in Texas, has been available to doctors since August 2012 and to pharmacists since a month after that.
Janki declined to talk to the Houston Press, and court documents don’t reflect her involvement or lack thereof with the database, so it’s unclear whether she used Prescription Access in Texas to dig into Osbourn’s drug history.
Either way, “I would think there may have been opportunity to review the patient’s history online and get an indication about the appropriateness of the various prescriptions,” said Dr. Larry Driver, another professor at the University of Texas MD Anderson Cancer Center and the president of the Texas Pain Society.
Data actually show that about half of doctors don’t use Prescription Access in Texas. In a survey of 1,300 primary care, emergency and pain-management physicians conducted by Dr. Marc Fleming at the University of Houston College of Pharmacy, 20 percent of doctors said they didn’t use the electronic monitoring system, while another 30 percent said they “weren’t sure” if they did.
In some states, including New York, Nevada and Kentucky, registering with and using the state monitoring system is mandatory. While Texans disagree about whether consulting this state’s database should be required, most believe that steps could be taken to make it more navigable. The Texas Department of Public Safety currently controls the system, but in September it will move over to the Texas State Board of Pharmacy. Board Executive Director Gay Dodson said the agency’s first step with the database come fall will be “to make it usable so [doctors and pharmacists] want to look at it.”
Latasha Allen was on a late-night work run when she was hit by Michael Osbourn’s 18-wheeler, leaving her with brain damage.
When Latasha Allen regained consciousness for the first time after the accident, she thought Memorial Hermann-Texas Medical Center was trying to kill her. She squirmed, but her arms and legs were strapped to her bed. She tried to look around, but her neck was resting in a brace, so Allen stared at the only thing she could see — the blank white ceiling that expanded over her head.
Smith sprang up from his seat — after a month of visiting his wife, she was finally awake, and just days after her birthday, too (he had filled the room with balloons, even though she hadn’t been able to see them). “I walked over there, and she was just looking at me,” Smith remembered. He stared back into her swollen face.
Then Smith told Allen as much as he could without sending her into a panic attack — that she was in a bad accident and that she had been in the hospital for a while. That the hospital wasn’t trying to kill her and that she was restrained only so that her body would heal.
No one explained the severity of Allen’s injuries to her that day, but she would eventually learn that she had sustained not only a broken neck, a collapsed lung, a set of cracked and broken ribs, the loss of her spleen, and abrasions along the right side of her body — but also a traumatic brain injury that would alter the course of her life.
When the doctor told Smith — and eventually Allen — what had happened to her brain, he explained it in metaphor. The technical diagnosis was “traumatic brain injury with residual neurocognitive and affective disorder,” but in layman’s terms, the doctor said, it meant that Allen’s brain was like a puzzle on a table. The car crash was akin to someone shoving the table, and now the puzzle pieces were all shaken up. Allen’s nerve endings would have to grow back through scar tissue, he said. It could be a very slow process. Allen might regain her mental capacities eventually, but when that would happen, he couldn’t say.
These days, Allen’s life is different. She’ll tell you that, and so will her husband and close friends. Sure, her body bears imprints from the accident: Her hand marks the start of a trail of scars running from her pink-tipped nails up her arm, and she has further discoloration on her scalp, neck, stomach and leg. But what really devastates her is the impact the crash has had on her brain. Allen’s memory has become cloudy (“It’s real vague — like a fog,” she said), and her speech is peppered with frequent, protracted pauses because sometimes the right words hover just beyond her reach.
Allen’s cognitive limitations lost her the job at Child Protective Services. “That really upset her, when she couldn’t come back to work,” said Renita Lowrey, Allen’s close friend of more than a decade and her former colleague. “She can’t do the work she used to do because her cognition is off. Before that she was very sharp — she could tell you what happened a year ago, in vivid detail.”
Allen is taking professional development classes with the intention of returning to work as soon as possible, but the live wire who used to need just five hours of sleep a night can’t walk for too long now without getting a bad migraine or having her lower back start to hurt.
“Most days, I’m so tired that I just want to go home and be a couch potato,” Allen said, reclined on a cushy sofa in her house, her feet tucked into a pair of fluffy red slippers. “If I’m not watching TV, then I’ll jump on my computer, work on my classes and just surf the Internet.”
Allen is also haunted by the specter of PTSD, which manifests in regular nightmares about the accident and a fear of large trucks.
“To this day, I still have a lot of anxiety with driving, specifically around 18-wheelers,” she said. “I either have to slow down if they’re next to me, or I have to pass them up. I cannot drive next to them.”
A few weeks ago, Smith and Allen were driving to Dallas on State Highway 45 at 4:30 in the morning. Smith had a project there to inspect for work, and Allen came along to visit a childhood friend.
The couple was laughing at XM comedy radio when the moment was cut short by a blast and a puff of vapor. One of the 18 tires on the truck ahead of them had burst.
Allen’s body seized up. “Oh my Jesus,” she gasped. The truck is going to veer, she thought, and we’re going to hit him.
“She kind of went into another zone on me,” Smith would say later.
The 18-wheeler pulled over on the side of the highway, and Smith accelerated past it, putting space between the two vehicles. As the truck receded behind them, Allen’s neck relaxed. Her breathing slowed. Now the monster was barely a blip on the horizon. She looked out of the window. If only moving on were that easy.
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