The first time I handled a pill mill case I was 20 pounds thinner, had big permed hair and wore polyester. Back in the day, people didn’t understand much about pill mills, so this type of litigation was a true novelty. However, at long last, the prescription drug epidemic is taking its rightful place in the news and now almost everyone is aware of the breadth and depth of the problem, but who is legally responsible? The space of this article doesn’t allow me to go more than about an inch deep, so I apologize in advance. However, these are the parties you should consider when evaluating an accidental prescription drug overdose case.
Establishing the standard of care is easy. The overwhelming majority of the peer-reviewed literature, rules and regulations of medical boards, state and federal statutes all inform us that a physician may only prescribe opioids for a legitimate medical purpose. To do otherwise is not only a violation of the standard of care, it is also criminal. In Texas, doctors are now bound by Texas Medical Board rules which are stated in terms of “minimum requirements” and “must,” instead of “should.” So you can tell how seriously this is finally being taken.
Texas has legislation which exists to make it illegal to operate a “pain clinic” the sole purpose of which is diverting prescription drugs of abuse for illegitimate uses, such as resale on the streets. True “pill mills” serve no purpose other than to see large numbers of cash paying “patients” and prescribing obscene amounts of opioids, muscle relaxers and anxiety drugs.
Pharmacists have a corresponding duty to evaluate the prescription to ensure that the prescription is being written for a valid medical purpose. It is frequently raised as a defense that pharmacists just fill prescriptions, but nothing could be farther from the truth. There are well known ways of spotting suspect prescriptions and prescribers.
Pharmacies that have a course of action of “looking the other way,” will find that they suddenly have a lot of cash paying customers. However, the Texas Pharmacy Board and others have made it abundantly clear that the onus is on pharmacies to do their part in preventing wide-scale prescription drug diversion. In fact, the Texas Medical Board even plainly states on their website how pharmacies can avoid becoming “pill mills.”
The Wholesale Distributor
The Drug Enforcement Agency (DEA) has placed the onus on wholesale distributors to “know your customer.” This means that wholesale distributors must do their due diligence to truly know who they are selling their drugs to. They are required to have systems in place to track the flow of their drugs and to compare pharmacies to one another to spot trends of pharmacies that may be exceeding normal ranges for certain drugs of known abuse.
This is an emerging target defendant in my opinion. I am watching a case very closely, which was filed by the city of Chicago. Essentially, the city of Chicago is alleging that the drug manufacturers of certain known drugs of abuse (Oxycontin, Percocet, Fentanyl, etc.) engaged in a fraudulent marketing scheme to encourage doctors to prescribe the extremely powerful and addictive drugs to patients who would have benefitted more from a far less potent painkiller. In addition, the city of Chicago is attempting to call Big Pharma out for creating illnesses, such as “chronic pain syndrome,” so that they can promote and market their drugs for treatment of these conditions knowing full well that the risk of addiction far outweighs any benefit the patient may receive.
We have an enormous societal problem on our hands. Big Pharma has created an entire nation of prescription drug addicts. Americans consume 90 percent of the world supply of hydrocodone! More people die each year of accidental prescription drug overdoses than those who die of all other drug overdoses combined. In addition, we are creating a new generation of heroin addicts because once people become addicted to opioids, they tend to switch to the cheaper version, which is heroin.
I do understand that there is often a contributory negligence defense in these cases. People who become addicted to drugs, whether they be prescription or street, often make poor decisions, fail to tell the truth and otherwise do whatever necessary to obtain the drug. However, new studies suggest that addiction is a brain disease which robs the patient of free will to make sound decisions about what is in their best interest.
In closing, let me state that there is plenty of blame to go around for our nation’s raging prescription drug epidemic. However, my focus has been and continues to be holding health care providers responsible for their role in the problem.