You’re suing me for what?
On May 13, 2015, the Supreme Court of West Virginia (WV) ruled that patients who become addicted to prescription medications can sue doctors and pharmacies for addiction-related damages. This ruling may have significant implications for prescribers of medications with the potential for addiction, including emergency physicians.
The Facts of the Case
The ruling was in response to eight lawsuits from Mingo County, WV where 29 individuals sued four physicians and three pharmacies for damages that occurred pursuant to the prescribing and dispensing of controlled substances. The plaintiffs sought treatment at a medical center in WV for pain following motor vehicle and work place injuries. They were prescribed large quantities of
Oxycontin, Lortab and Xanax and became addicted to the medications, which they claimed caused them to engage in criminal activities, such as fraud, theft, forgery, and “doctor shopping.” The plaintiffs alleged that the providers’ negligence (prescribing large quantities, concomitant use of synergistic medications, allowing for early refills) resulted in damages.
The Court ultimately ruled in a 3-2 vote that juries could find providers negligent even if patients engage in illegal behavior related to misuse or abuse of prescription medications. This invokes the rule of comparative negligence, which states “a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident.” This is the law in WV and several other states. It means that a jury weighs the degree of negligence of both parties to apportion damages. This is in contrast to the wrongful conduct rule, in which an individual who suffers damages while committing a felony or misdemeanor cannot file suit for damages.
Legal Issues and Unintended Consequences
According to a 2014 Centers for Disease Control and Prevention (CDC) Report, WV had among the highest rates of prescribing opioids and benzodiazepines, nearly 3-fold greater than the lowest prescribing states . High rates of opioid prescribing are linked to increasing rates of opioid overdose deaths in the U.S., which have more than doubled in the past decade. The WV Supreme Court’s ruling was likely directed toward “pill-mills” – providers who knowingly prescribe medications inappropriately or for illicit, non-medical reasons, stating that “a plaintiff’s immoral or wrongful conduct does not serve as a common law bar to his or her recovery for injuries or damages incurred as a result of the tortious conduct of another.”
While intended to reduce harmful prescribing, WV’s Supreme Court ruling could set a dangerous precedent despite many unanswered questions. For example, it’s not clear how this ruling will differentiate between “pill-mills” and providers such as pain medicine physicians, who prescribe large volumes of controlled substances in good faith. In addition, since addiction does not occur immediately, it is unclear which prescribers will be held liable: the one who initiated the medication, the one who regularly prescribes the medications, or anyone who has prescribed controlled substances to the patient – including unwitting ED physicians. This ruling could open the floodgates for similar lawsuits in other states where comparative negligence is relevant in determining liability .
Potential Implications for ED Physicians and What to Do
The potential impact of this ruling on emergency physicians is still unclear. The WV physicians named in the lawsuits prescribed large quantities of opioids, which are typically not prescribed in EDs. Yet, opioids are prescribed frequently and at increasing rates by emergency physicians and there is mounting evidence that opioid prescriptions from the ED may lead to the subsequent development of addiction [3,4]. This ruling could also lead to more stringent local and state ED opioid prescribing policies and requirements for ED physicians to consult state prescription drug monitoring programs (PDMPs). Such a requirement could have potential benefits in that it may help to identify patients who are using multiple providers and pharmacies to obtain controlled substances; however, the functionality of many PDMPs needs to be improved to increase accessibility and clinical utility. Similar lawsuits stimulated by this ruling could waste physicians’ time and legal system resources and could potentially increase malpractice premiums for physicians that frequently prescribe controlled substances. Even more importantly, fears of addiction-related lawsuits could cause non-ED providers to severely limit prescribing medications with addictive potential, even when patients have reasonable indications for these agents. Decreased prescribing by outpatient providers may result in more patients with uncontrolled pain, addiction, or withdrawal seeking care in the ED. At the same time, ED providers may have the same hesitations to prescribe controlled substances. The end result may be more patients with inadequately treated pain or with opioid withdrawal.
Although the legal ramifications of this ruling are unclear and currently untested in the courts, emergency physicians should consider following several simple steps:
- Non-opioid therapies should be used whenever possible. Non-pharmacologic adjuncts such as physical therapy can also be helpful. When opioids are indicated, an assessment for the potential risk of addiction should be performed. There are validated risk assessment tools available. If patients are at high risk for addiction, opioids should be used only if the benefit outweighs the risks and for as short a time and at the lowest dose possible. A detailed allergy history should also be obtained to distinguish true drug allergies from minor intolerances such as gastrointestinal upset.
- If opioids are prescribed, adhere to state and local opioid prescribing guidelines, that are publically available, usually on the department of health’s website and only prescribe short courses of short-acting agents, such as Percocet as opposed to Oxycontin.
- Consider reviewing prior medical and pharmacy records as well as the state PDMP when available and document the results of those searches. In addition we should work with electronic health record vendors to facilitate this process by connecting ED EHRS to state PDMPs.
- Emergency physicians should have an open dialogue with patients regarding the risks of opioid analgesics, including addiction, at the time of prescribing. This should happen with every patient because opioid misuse and abuse often starts with a legitimate medical prescription.
- Lastly, close outpatient follow up and communication with primary care physicians and treating specialists should be arranged whenever possible. When patients do not have a primary care provider, referrals to local clinics should be provided and/or ED social workers and navigators may be used to help establish care.
The balance between caring for patients in pain while trying to avoid perpetuating of the epidemic of opioid addiction and death is complicated enough. Adding threats of lawsuits for contributing to a patient’s opiod addictions will likely serve nobody well except perhaps the attorneys. Nevertheless this new ruling reminds us that regardless of how well-intended our actions may be, addiction is a life-altering, avoidable complication for which we may ultimately bear some responsibility.
1. Vital Signs: Variation Among States in Prescribing of Opioid Pain Relievers and Benzodiazepines — United States, 2012. MMWR 2014; 63(26):563-568.
2. Contributory Negligence/Comparative Fault in all 50 States. Available at: http://www.mwl-law.com/wp-content/uploads/2013/03/contributory-negligence-comparative-fault-laws-in-all-50-states.pdf.
3. Hoppe JA, Nelson LS, Perrone J, Weiner SG; Prescribing Opioids Safely in the Emergency Department (POSED) Study Investigators. Opioid Prescribing in a Cross Section of US Emergency Departments. Ann Emerg Med. 2015 Apr 24.
4. Mazer-Amirshahi M, Mullins PM, Rasooly I, van den Anker J, Pines JM. Rising opioid prescribing in adult U.S. emergency department visits: 2001-2010. Acad Emerg Med. 2014;21:236-43.