It is no secret that prescription opioid use has drastically risen in the United States. Within the past two decades, the sale of opioid prescriptions has quadrupled. Opioid pain medications include natural opioids such as morphine and codeine, or synthetic and semi-synthetic ones such as oxycodone, hydrocodone, oxymorphone, and methadone. These medications became popularized in the 1990s, when pharmaceutical companies reassured physicians that these pain relievers were not addictive. Although the country as a whole did not experience an overall change in the amount of physical pain they were experiencing, prescriptions for pain medications began to skyrocket. As the use of prescription opioids to treat chronic and acute pain continued to grow, so had the possibility for misuse, abuse, and addiction. This contributed to nearly 15,000 overdose deaths in 2018 – 32% of all drug overdose deaths of that year.
As a result, the number of medical malpractice lawsuits related to opioid prescriptions have also been on the rise. With opioid-related medical malpractice claims becoming more prevalent, it is important for both patients and doctors to be knowledgeable about the legal standard of these cases. In light of the particularized legal issues present in opioid prescription malpractice claims, expert witnesses in these specific fields are necessary in order to prove or defend such cases.
Recent Trends in Opioid Prescription Litigation
Before commencing an opioid-related medical malpractice claim, it is important to keep in mind the recent trends this sub-set of malpractice cases have seen in recent years. According to a study conducted by medical liability insurer, Coverys, medical malpractice claims related to prescriptions made up 42% of all claims filed between 2012 through 2016, with opioids involved in 24% of those claims – the highest of any type of medication. Medical malpractice claims can arise at any point during the prescription process – from the doctor’s decision to prescribe pain medication, to the actual administration, and then to the monitoring and follow-up management. In the Coverys study, almost half of all claims related to opioids involved prescriptions related to primary care doctors (opposed to surgeons or other sub-specialties).
The most common claims allege that there was a lack of medical necessity for the medication, in that there existed alternative treatments for the patient aside from opioid prescriptions. Since a large number of opioid addicts begin their addiction through legally-prescribed pills, the question of medical necessity to be prescribing anything in the first place is an important factor. Likewise, over-prescription of opioids is a frequent allegation in these cases, with many plaintiffs alleging that the opioids were prescribed too frequently and in too high of a dose to be safely administered. Lastly, many patients claim that they were not adequately monitored after the initial prescription, with doctors failing to conduct follow-up examinations or changing the dosage as needed. Such a lack of monitoring also more easily leads to addiction that can go unnoticed (and untreated) by the physician.
How Can the Experts Help?
As is the case in any medical malpractice claim, it is the burden of the plaintiff to prove that: 1) the defendant physician owed a duty to the patient; 2) the defendant breached said duty; 3) the breach proximately caused an injury; and 4) it resulted in damages. In other words, a plaintiff must show that the physician deviated from the standard of care which would be used by a reasonably prudent physician in the same position. Although most states generally agree on this definition, what constitutes the conduct of a “reasonably prudent” physician can largely differ depending upon the facts and circumstances of the treatment, particularly in opioid cases, where the question of whether a physician breached their duty of care is often the main point of contention. In order to prove or defend against an alleged breach, it is necessary to have the appropriate experts by your side.
With an estimated 100 million people suffering from chronic pain in the United States, the answer to a physician’s practice may not be as simple as under-prescribing or ceasing pain medication as a treatment completely. Experts in the fields of pain management, pharmacology, and toxicology are just some of the practice areas that can be helpful in establishing the standard of care when prescribing opioids and defining a happy and reasonable medium. Some questions that these experts can answer include: 1) Did the patient undergo a comprehensive physical examination and clinical assessment?; 2) Was the patient’s previous medical records evaluated?; 3) Was the prescription choice appropriate for the patient’s issues?; and importantly, 4) Was the patient educated on the risks and benefits of the prescription, such as the strength and addictive nature of the drug? In light of the explosion of opioid prescriptions and overdoses in recent years, a number of agencies and associations, such as the Center for Disease Control and Prevention, and The Massachusetts General Hospital/Massachusetts General Physicians Organization Opioid Task Force have created guidelines for prescribing opioids. These guidelines, as well as the actual experiences of pain management experts and other physicians trained in chronic pain treatment, can help form a solidified case theory as to whether a defendant physician breached the requisite standard of care.
In one of the most notorious opioid prescription lawsuits, a St. Louis plaintiff successfully used these guidelines to prove his medical malpractice claim against his doctor. At trial, the plaintiff established, through his expert witnesses, that his doctor negligently over-prescribed him pain medication in an amount that far exceeded the recommended CDC guidelines. The increasingly large dosages eventually led to Koon’s opioid addiction. Brian Koon and his wife were awarded $17.6 million in damages.
Overall, the opioid crisis is considered a national emergency which carries significant medical and legal implications. As more training becomes available and more initiatives are developed to establish the best practices for prescribing, it is best for all physicians to stay up-to-date on these changes and when necessary, consult the appropriate expert.
