Soon after the Presidential election I wrote an article for the Lawyers Logbook© entitled, “Trump, Trucks and Torts.” In the article I pointed out that “as attorneys for victims of unsafe trucking practices; we must be prepared to lobby our legislators to make sure that profits are not allowed to trump safety by eliminating or drastically changing interstate trucking regulations.” Unfortunately, the Trump administration recently withdrew a proposed regulation requiring sleep apnea testing for high risk truck drivers, bus drivers and railroad engineers. Since the withdrawal of the proposed regulation is likely to increase highway fatalities and interstate trucking accidents, I urge you to contact your Senators and Congressmen to encourage them to reconsider the withdrawal of the regulation. Senator Charles E. Schumer denounced the decision to withdraw the regulation: “We don’t want train engineers with undiagnosed sleep apnea, who actually hold lives in their hands, to fall asleep at the switch, and we don’t want big-rig drivers to doze off at the wheel. This abrupt and uncalled for withdrawal by USDOT commemorates a disaster waiting to happen.” Sarah E. Feinberg, the former administrator of the Federal Railroad Administration under the Obama administration, also criticized the decision: “This is a condition that we know has meant unnecessary deaths and injuries. And there is such an easy—and inexpensive—solution. There is no reason to withdraw a rulemaking like this other than you don’t understand the science or because you’ve chosen to ignore it.”
It is a proven fact that moderate to severe obstructive sleep apnea (OSA) causes daytime drowsiness and that long haul truckers suffering from OSA are likely to doze off while driving. The Transportation Department acknowledges that sleep apnea is an “ongoing concern because it can cause unintended sleep episodes and resulting deficits in attention, concentration, situational awareness and memory.” Furthermore, driving while drowsy has been shown to be similar to driving while intoxicated. The United States Department of Transportation estimates that approximately 28% of all interstate truck drivers suffer from some form of sleep apnea. The National Highway Traffic Safety Administration estimates that there are as many as 100,000 accidents a year caused by drivers who doze off behind the wheel and as many as 1,500 deaths and 40,000 injuries a year caused by fatigued drivers. The Harvard Medical School conducted a study and concluded that each day 250,000 persons doze off while driving. In response to confidential surveys, nearly half of the truckers who were interviewed, admitted that they had dozed off at one time or another while driving long haul routes. Since sleep apnea is a significant cause of “fatigued” drivers, the Obama Administration promulgated simple regulations to screen for sleep apnea. These regulations are similar to the regulations adopted by the Federal Aviation Administration for commercial pilots. The proposed regulations require testing of high risk persons. The Obama Administration reasoned that since sleep apnea was the cause of many truck, bus, and train accidents, it would be prudent to test interstate truck drivers, bus drivers and railroad engineers in the same way that pilots are tested. It has been reported by the FAA that approximately 4,900 pilots have been successfully tested and treated for sleep disorders.
If studies showed that 28% of interstate truck drivers could not read road signs without glasses, no one would oppose a regulation requiring these drivers to obtain corrective lenses before driving an 80,000 lb. truck. Similarly, there is no reason why screening for sleep apnea should not be required for all interstate truck drivers, bus drivers and railroad engineers. Although the Trump Administration claims that the withdrawal of hundreds of safety regulations will somehow mysteriously “bolster economic growth”, the withdrawal of the sleep apnea regulation is unwarranted.
To add fuel to this burning issue, on February 6, 2018, the National Transportation Safety Board reported that a lack of adequate testing for sleep apnea was the primary cause of the recent train accidents in Hoboken and Brooklyn. One person was killed and more than 200 people were injured in those accidents. The Board noted that untreated obstructive sleep apnea has been a causal factor in many highway and railroad accidents. The Board specifically recommended to the Federal Railroad Administration to “require railroads to medically screen employees in safety sensitive positions for sleep apnea and other sleep disorders.”
The Chairman of the National Transportation Safety Board said he was “mystified” by the withdrawal of the proposed federal rule on screening for sleep apnea.
Even from an economic standpoint, the regulation is reasonable. Dr. Nicholas Webster, the NTSB’s medical officer, told the New York Times that screening for sleep apnea can be simple and inexpensive. Since the screening and subsequent treatment of sleep apnea is relatively simple and inexpensive, there is no justifiable reason to put lives at risk. Therefore, I am asking you to contact your Senators and Congressmen to urge them to reconsider the withdrawal of the sleep apnea regulation.