Principal Rich Collins authored a column on the recent spate of civil suits against doctors and pharmacies for overprescribing opioid pain medication. His column addresses the issue of addiction in medical malpractice claims and statutory claims, such as the Drug Dealer Liability Act.

Prescription Drug Overdose: Who’s to Blame?
By Richard T. Collins

Breaking news reports of celebrity deaths linked to prescription drugs have become commonplace. Some fans only speak fondly of these fallen stars. But there is a large contingent whose immediate reaction is, “It’s sad, but nobody was forcing the pills down their throats.”

As many as 105 people die everyday in the United States from drug overdoses, 60% of which are caused by prescription drugs. Is this a lack of moral will by drug using degenerates, or is there an underlying problem about how these people acquire their prescription drugs that needs serious attention?

When Erin Marie Daly, a San Francisco-based freelance journalist and founder of Oxy Watchdog, a blog containing an invaluable source of information on prescription drug addiction, courageously shared the story of her brother’s addiction to OxyContin and ultimate death, she received heartless emails from people saying that, “addicts like [her] brother deserved to die because they were worthless junkies.” See Erin Marie Daly, “Renewing The Fight In The New Year,” OxyWatchdog.com, Jan. 3.

No life is worthless. And no addict has free will. This author believes there is another side to these stories. And the other side involves questionable practices by doctors and pharmacies who make money by perpetuating an addiction, or who turn a blind eye because of the money involved.

The thorough investigative journalism by Scott Glover and Lisa Girion of the Los Angeles Times, “Dying for relief: A Times Investigation,” (Nov. 11, 2012), has cast a broad and bright light on the role of rogue physicians and pharmacists in the prescription drug epidemic. Federal, state and local law enforcement have conducted in-depth investigations and prosecutors have taken to task those who manufacture, distribute and dispense prescription drugs for an illegitimate purpose.

Most doctors who prescribe controlled substances operate within the law and their professional duties. But there is a small outlier group of doctors and pharmacies that should be brought to justice. The Times investigation revealed that of 3,733 prescription drug-related deaths in four Southern California counties, only 71 doctors – one-tenth of 1 percent in those counties – had written prescriptions in 17 percent of such fatalities over six years.

Civil suits against physicians and pharmacists should be filed in appropriate cases, following the state Legislature’s suggestion that the civil justice system be employed as another weapon against drug abuse, providing compensation for those who have suffered harm, shifting the cost from the community, and serving as an additional deterrent. Health & Safety Code Section 11702.

Specific state statutes govern prescriptions for controlled substances. A doctor can only prescribe a controlled substance for a legitimate medical purpose. “The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.” Health & Safety Code Section 11153. A doctor shall not prescribe for, or administer, and a pharmacist shall not dispense a controlled substance to an addict. Health & Safety Code Section 11156.

Violation of these specific statutory duties may be deemed negligence per se. Evidence Code Section 669. Medical malpractice by physicians and pharmacists in prescribing and dispensing prescription drugs may also be established through expert witness testimony. In wrongful death lawsuits against physicians and pharmacists for the prescription overdose death of a patient, the spouses, children, parents and siblings of the deceased patient should be prepared for a vigorous defense of comparative negligence and the vilification of their loved ones.

It is worth noting that the National Institute on Drug Abuse defines drug addiction as follows: “Addiction is a chronic, often relapsing brain disease that causes compulsive drug seeking and use, despite harmful consequences to the addicted individual and to those around him or her. Although the initial decision to take drugs is voluntary for most people, the brain changes that occur over time challenge an addicted person’s self control and hamper his or her ability to resist intense impulses to take drugs.”

Although medical science demonstrates the fallacy of the comparative negligence defense, the over-prescribing doctors’ attorneys will insist on presenting such a defense. You cannot really say that a drug user was exercising free choice if that person was addicted. This notion is reflected in California’s Drug Dealer Liability Act (DDLA).

In addition to the usual torts available to pursue the small percentage of doctors and pharmacies responsible for the overuse and misuse of prescription drugs, patients and related third parties (e.g. a parent, spouse, child, sibling, employer or insurer of the substance user) may also file suit under the DDLA, which allows persons injured as a result of the use of an illegal controlled substance to recover damages from those persons responsible for marketing the controlled substances, shifting the cost of the damage to those who illegally profit from that market, and establishing the prospect of substantial monetary loss as a deterrent. Health & Safety Code Section 11701.

When doctors write prescriptions for no legitimate medical purpose and pharmacists blindly fill those prescriptions, they are not acting as health care providers. They instead are engaged in “the marketing and distribution of illegal controlled substances” and their action should lead to civil liability under the DDLA. Plaintiffs other than the individual user of the drug cannot be charged with comparative negligence and an individual user is only subject to the principles of comparative fault (Health & Safety Code Section 11706) if the defendant can prove it by clear and convincing evidence (Health & Safety Code Section 11710).

Those who remain skeptical and cannot imagine why a health care professional would risk his or her license by illegally prescribing and dispensing prescription drugs should consider the following staggering statistics:

• Sales of opioid painkillers to pharmacies and health care providers have increased by more than 300 percent since 1999. U.S. Centers for Disease Control and Prevention, CDC Vital Signs Report, November 2011.
• The number of deaths involving opioid painkillers more than tripled from 1999 to 2008. “Prescription Drug Diversion: Combating the Scourge,” March 1, 2012, page 2, citing Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report, Aug. 20, 2010.
• Enough prescription painkillers were prescribed in 2010 to medicate every American adult around-the-clock for a month. CDC Vital Signs Report.

The problem of over-prescribing drugs and over-filling the prescriptions is pervasive and persistent because billions of dollars are at stake for the doctors and pharmacists pushing the drugs and, most of all, Big Pharma. Civil litigation in appropriate cases should be employed in an effort to deter this illegal conduct.

Richard T. Collins is a principal in Berger Kahn ALC’s Orange County office and specializes in serious personal injury and wrongful death claims including litigation involving prescription overdose deaths. He can be reached at RCollins@bergerkahn.com.