Friday, June 12, 2015

Narcotic addicts can sue doctors and pharmacies for "enabling" them

In a 3-2 decision, the Supreme Court of West Virginia ruled that narcotic addicts may sue pharmacies and physicians for facilitating their addictions.

A suit was brought on behalf of 29 pain center patients who had been treated with narcotics for various injuries and became addicted. One article quoted the Chief Justice's explanation: "A plaintiff’s wrongful or immoral conduct does not prohibit them from seeking damages as the result of the actions of others."

The court recognized that most of the plaintiffs "admitted their abuse of controlled substances occurred before they sought help "at the pain clinic.

Another story said, "The justices paved the way for people to claim damages for allegedly causing or contributing to their addictions of controlled substances—even if they broke the law by doctor shopping."

In a dissenting opinion, one justice wrote that the decision “requires hardworking West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable—a drug addict or his dealer.”

In response to the ruling, the West Virginia Medical Association issued a statement: "It may cause some physicians to curb or stop treating pain altogether for fear of retribution should treatment lead to patient addiction and/or criminal behavior. It may create additional barriers for patients seeking treatment for legitimate chronic pain due to reduced access to physicians. It would allow criminals to potentially profit for their wrongful conduct by taking doctors and pharmacists to court."

A post on the American Pharmacists Association website explained that pharmacists were included in the ruling "because they were aware of the 'pill mill' activities of the medical providers. The plaintiffs said these pharmacies refilled the controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances, and filled 'synergistic' controlled substances."

One newspaper summarized the public reaction to the ruling in an editorial stating, "Those who are illegally abusing prescription narcotics should be prosecuted to the fullest extent of the law. The same goes for medical professionals who are found guilty of committing a criminal act. But telling a drug addict or someone who is illegally abusing prescription narcotics that it is OK to go to court and file what could very well be a frivolous lawsuit is both baffling and shameful. This ruling by the Supreme Court justices is a clear back eye for West Virginia. And it does nothing to help West Virginia’s rampant drug problem."

As I wrote last year, I think the prescription drug abuse epidemic all stems from a 15-year campaign that declared pain is the fifth vital sign—a concept which is both untrue and as we have come to learn, harmful.

I agree with the WVMA. If I were practicing in West Virginia, I would be very reluctant to prescribe narcotic pain medication to any patient.

What do you think?


Libby said...

Interesting, I saw a Fifth Estate (Canadian newsmagazine TV show) series on the W.V. drug problem & of course I can't remember particulars, just that it's bad.
This prescription drug um, over usage is a sticky wicket isn't it? Who ever you point to there is someone else to point to who is part of the issue. The addicted have a severely reduced level of personal responsibility, pain is subjective (as a ER nurse reminded me when we had a waiting room full of vocal moaners) which puts the physician in a spot (deciding how potent a painkiller is needed or if one is needed at all) & the pharmacist deciding to (or not) fill the prescription (& how often). To boot, what if the doctor & pharmacist have, um, a questionable set of ethics, (in the light grey area)?
If I had to tell a drug seeker "no", I'd want a huge security dude behind me when I tell them. It would also help if there were enough spaces in the good drug rehab programs. Or just more good drug rehab programs.
I'm interested in reading what the people in the frontline (the ones who actually deal with this) have to say.

OldfoolRN said...

How can pain be a "vital sign" when there is no objective way to measure or quantify it? Abuse of narcotics causes more pain than any disease entity can inflict.

artiger said...

I knew you could be sued for not treating pain. Now you can be sued for treating it too.

Skeptical Scalpel said...

Old, yes it can't be measured or quantified.

Artiger, it's a real "gotcha"situation.

Skeptical Scalpel said...

Libby, I agree with your comments.

Terri Lewis said...

i'd far rather see this energy directed at prevention of this problem than mop up of a failed system. While pain cannot be uniformly quantitifed and is a subjective experience, it's impact can definitely be assessed. By assessing potential patients properly, much of this conversation can be addressed. There is no standard for care, and suing physicians for failing to interpret something that doesn't exist makes no sense. This is ambulance chasing at its worst. WVA could address much of this problem in their state by making sure that people have access to the basics of human needs and health care.

logcabin said...

Lets try this again,,last comment ,''disappeared,'',,Well,,to all of u who think its with-in your realm of arrogance /ignorance to tell others how much physical pain 1 should suffer,,,go seek help for thinking torture is with-in your realm of control,sicko's....To the W.V. government,,who are u to tell any ADULT in your state how MUCH PHYSICAL PAIN THEY ARE TO SUFFER!!!!!!.. I am shocked at those in W.V... that allowed this to pass..I always thought of the essence of what our forefathers died for,,,FREEDOM.. freedom as Adults,,to choose who u want to be,,,FREEDOM as adults of diet and medicine,,, ALL of the very doctrines our country was founded on..I can't believe thee actual W.V. people are a people who choose torture over compassion,,,,It is a self evident truth,,that no man can physical feel the physical pain of another,,thats truth/fact,,,A basic humane dignity towards all fellow humanbeing should be honored with that self evident truth in mind,,no-one has the legal right nor the human decency to allow any entity to suffer in physical pain,geez by definition that's TORTURE,, why has W.V. government now allow'd human torture to be legal in their state??????As a society have we forgotten basic truth,,,,it is true no-one can physical feel the pain of another,,,soo why has W,V.. government ignored that fact,,Ignored is the basic form of IGNORANCE,, has W.V's gov..allowed their ARROGANCE+IGNORANCE to allow ADULTS in their state to suffer in physical pain?????YES,, it is a self evident truth that no man can physical feel the physical pain of another,thus a decent humane respect should be honored towards all those in physical pain and those compassionate enough to treat them,,W.V..government thru their arrogance and ignorance has now allowed torture as the rule in their state,,good work,,,your forefather would be proud,,,,Adult Drug Addicts will be drug addicts no matter what,,,u watch ,,the heroin is going to go up in your state now,,,and your ignorance will claim,,its former pain patients,,well guess what,,when your in physical pain 24/7 you will either stop that physical pain with a gun,,or a basic human instinct of survival will kick in,,as all NORMAL humanbeing have,,IT IS A BASIC INSTINCT to repell from physical pain,,,,if that physical pain is actual in the body,,medicine is the only way to lessen it,,soo if u have taken away a person's ability to get legal medicine to lessen there physical pain,,theyr will look else where,instead of suffering in physical pain,ie,torture,,,your government in W.V,, has just created the first state in the Union where torture is now legal,,,how INHUMANE of W.V... our forefathers acknowledge the freedom to choose as adults,the free will,,,as to how we treat our bodies,,,freedom of diet and medicine was one of those freedoms,,,W.V...government just took that away..They have allowed drug addicts,,the guilty,,to allow the innocent to suffer,,,the cancer patient,thee chronic physical pain humanbeing,the 80- year old gramma with arthritis,,,all will suffer now in W.V,,,because no doctor can help w/ physical pain in W.V, anymore,,thus torture is now legal in W.V,,,,goodwork,,,watch your suicide rates go thru the roof,,as humanbeings will sought out a way to stop their physical pain by death,,,those death are on your hand,,,,I hope u sleep well hurting 80 year old gramma's,,cancer patient etc.. so your drug addicts can dictate your inhumanity towards your fellow man,,,,,

Former FP said...

I was a successful FP from 1990 to 2013. For the last 10 years, I was told repeatedly by drug reps and some pain specialists to treat pain early and aggressively, and yes, we now have these wonderful drugs such as oxycontin and fentanyl patches that are "less addictive" and work better. I bought into their kool-aid. To make a long story short, eventually I was treating too many people for noncancer pain. I never made a cent of these patients; they actually took up a lot of time.Anybody who told me they had an addiction history I would refuse to treat. The problem is, too many addicts would not admit to it, came up with legitimate-sounding stories that would not check out. I did not do due diligence on these patients consistently. One of these patients (legitimate spine problems and HIV-positive)ended up committing robbery to feed his habit; the prescriptions the police found on him were traced to me, and I was criminally charged. The charges were dealt with without a plea, but I have another year before I can get my license back. I am now daytrading for a living and getting certified in medical informatics. The lesson is: if the patient has noncancer pain and you are not a pain specialist, refer them IMMEDIATELY. No way am I practicing again. I'll be a marked man. There are a lot of ambitious detectives and prosecutors out there that think every prescriber is a potential pill mill doctor.

The Doctor Isn't In said...

Just one more example of the Gov getting involved with an area of society it knows nothing about. There is no way the justices could have made a legitimate decision on this case since they lack the understanding of the nuisances of pain management and addiction. Opening the box to litigation for addiction simples closes the door to millions who need the meds but the liability is too great for the doctor or pharmacy to make them available so they will suffer. 30 years as being a surgical oncologist I can tell you flat out some people need meds while others want meds and it shouldn't be our license or our property if we fail to place each person in the proper category. The nature of addiction alone makes them VERY good at concocting stories to support their needs/desires. Atleast in my case I can always say no if I haven't operated on them but what is a Medical Oncologist to do? Or the ER doc? Or the pain management clinic. Until we get a imaging study that insures that the pain synapses are active we will never know for sure. Dr D

Skeptical Scalpel said...

Thanks to all for commenting.

Terri, as "The Doctor" (below) points out, assessing whether patients are having real pain or not is difficult.

Log, I am sorry that your comment initially disappeared. It has been an ongoing problem with Blogger, the site that my blog is hosted on. I agree that some patients who really have pain are going to suffer because of this ruling.

Former FP, that's a sad and cautionary tale you have told. I feel for you. I personally know an MD who was caught in a similar bind. A patient had been "doctor shopping" and the doctor naively believed that the patient was having severe pain. It cost the doc a lot of money and a suspended license. His career was ruined because he had to disclose his suspension to every potential employer.

Anonymous said...

I am a physician in alot of pain who can't work unless I can get more than one tramadol a day.l I think we need to start passing laws and convicting of a crime against mankind/executing all the government officials (including supreme court judges) that discourage doctors from being at least able to prescribe 4 hydrocodone pills a day for those of us suffering from severe arthritis and severe pain and bed bound unless we can get some pain meds to allow us to get out of bed. On the other hand maybe these government officials can just shoot those of us suffering with severe pain and put us out of our misery. Like they did in Nazi Germany.

Skeptical Scalpel said...

Anonymous, thank you for your comment. I am sorry that you are suffering so much. I hope that rulings like the one I mentioned do not end up causing legitimate pain sufferers to go untreated

PGYx said...

Thanks to Former FP for sharing his experience. I know a doc, whom I very much respect, who lost his license due to inadequate documentation of chronic opioid therapy. Even if we are diligent in ferreting out abuse we may still be liable if a patient has a bad outcome. Unfortunately (and I may catch some flack for saying this), a significant proportion of patients with chronic pain who seek chronic opioid therapy are not the most compliant, reliable, well-educated, or resource-rich patients, even if they are not abusing or diverting their prescription medications.

I have also found this group to be those least likely to disclose all of their meds to me in spite of a very clear pain agreement and mine and my staff's great efforts to reconcile their meds. Not generalizing by any means, but I have noticed a trend and believe members of this patient subgroup are at higher risk of complications and adverse drug effects from chronic opioid therapy.

There is no "right" answer (unless the patient is clearly abusing or diverting the meds), but I'm not willing to put my license at risk for anyone, no matter how legitimate a patient's need for treatment.

PGYx said...

Re: Anonymous -- This is another case of the few ruining it for the many. The folks who have abused and diverted their meds have ruined it for those with legitimate need. We need to reach a better balance and ensure legal protection for those physicians who diligently monitor opioid use/side effects and appropriately prescribe analgesic medications.

I sympathize with you and do not envy your position. You are relatively lucky you benefit from a few tramadol or low-dose hydrocodone per day as many physicians are comfortable prescribing on that schedule with appropriate (unfortunately still burdensome to both patient and physician) monitoring strategies like regular random UDTs, monitoring the 4 'A's, and checking the state prescription drug monitoring programs.

frankbill said...

One can easily make $1500 a month selling there pain meds. They are willing to put up with some pain to get this money.

Anonymous said...

I have read comments with a feeling of incredulous panic. Good doctors are being criminalized. I honestly don't see this issue as a question of should people with pain get meds or not...people have used methods of pain control since ancient times. My untrained grandmother learned how to be an herbal healer from her mother. I see this more as part of the greater tidal wave of criminalization in our country. People fail to realize it is a witch hunt on prescribers.

Skeptical Scalpel said...

Yes, people are selling their prescription drugs. I suppose they should be sued too.

I agree that the law will certainly be used to punish legitimate prescribers who believe what manipulative drug users tell them bout their pain. I realize there are some bad docs who run "pill mills," but this law will entangle well-weaning docs who naively trust what patients say about their symptoms.

Anonymous said...

I feel very mixed emotions on this topic. First of all, as a clinician I was trained during the era of "pain is what the patient says it is". As a chronic pain sufferer with zero effective medications prescribed, I feel angry. I feel angry with the askance glances, the presumptions & the total lack of dignity I experience while attempting to resolve this pain management dilemma. I've done everything that's recommended - PT, NSAIDS (in spite of a history of ulcer), amitryptilline, gabapentin, steroid injections, acupuncture, ice, heat... I think you get my point. I have no history of drug or alcohol addiction or any addiction for that matter. The pain interferes with activity, sleep, relationships in terms of time not quality. People notice & comment on my visible writhing in pain. Currently I'm taking 8 aspirin & 8 Tylenol per day. Regrettably, we can't ask the people who died from overdose exactly what happened. Naturally, these numbers are tragic & I find the witch hunt going on with prescribers appalling. I believe doctors should be able to practice medicine absent fear of retribution from either the government or the patients whom they have treated in good conscience.

Skeptical Scalpel said...

I am so sorry to hear of your problem. I hope you feel better soon. I agree we are in a 'damned if we do, damned if we don't ' situation. I see no solution.

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