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“My Doctor Made Me an Addict.” Can I Sue?

Laurence M. Deutsch and Steven E. North

The epidemic rise of opioid addiction is a national problem that has a strong presence in the media today. Suits have been filed by states and other entities against pharmaceutical companies, alleging they have misrepresented the risks of addiction for their medications. These suits are still in their inception, and their future viability remains to be seen.1

More commonly, individuals have attempted to sue physicians for overprescribing addictive medications that resulted in patient addiction. The theory of such case is that if a physician overprescribed pain killers or did not follow the established standards for prescribing powerful and potentially addictive medications, the physician should be held responsible for the addiction.

As a legal matter, such facts, (if proven,) can state a viable claim. Various physicians’ organization have established standards of care for prescribing potentially addictive medications, e.g., the American Academy of Family Practice and societies in pain management. A physician who prescribes contrary to these standards may in fact be breaching the standard of care. However, as a practical matter, these cases are typically weak.

One reason is that the process of addiction typically takes place over time as opposed to a clear, single instance of medical malpractice – e.g., a physician punctures an organ during a procedure. For a process that takes place over time, jurors will typically think that the patient has a significant degree of choice and ultimate responsibility in becoming addicted even if his or her physicians prescribe highly addictive substances. Therefore, without exonerating physicians who overprescribe addictive medications, we generally feel it is difficult to prevail in a case where the central allegation is that a physician "made me an addict."

There are, however, viable cases in which issues of addiction play an important role and may well be a component of a patient’s damages. Notably, we've represented individuals who have been put into severe, chronic pain resulting from medical malpractice.

For example, one of our clients was given an overly extensive surgery for a relatively limited spinal condition. This surgery fused many levels of the spine and, per our experts, such a surgery was likely to fail, and fail catastrophically. The surgery left the patient with intolerable and constant pain; high levels of narcotic medications were required just to enable the patient to function. In the ensuing years, the patient has found it difficult to avoid an overreliance on pain medications.

In this instance, we are not suing the physician primarily for "making the patient an addict," but rather for the physical injuries caused by malpractice and the resulting pain and disability. Nonetheless, in this context, the necessity of large doses of daily pain medications to treat these injuries, and the effects of those medications, are indeed a component of damage in that case.

Recently, a doctor introduced a novel defense to a federal charge of overprescribing opioids. In a criminal case brought against Michael Belfore, M.D., in the Eastern District of New York, Dr. Belfore is claiming that "big Pharma" is partially responsible for his prescription practices, because they gave him and other physicians excessive inducements to overprescribe.2

We doubt that Dr. Belfore will succeed in mitigating his own responsibility by blaming the pharmaceutical companies. Nonetheless, independent of his own responsibility, it may well be brought to light whether or not there were improper inducements as Dr. Belfore alleges.

The Belfore case and suits brought against pharmaceutical companies by Ohio and other states, illustrate the many factors that have ultimately contributed to a large-scale addiction problem: physician prescription practices; the decisions of individual patients; and, potentially, how these drugs have been marketed by pharmaceutical companies to physicians and the general public.

Some of these suits have been brought by State Attorneys General, such as the suit brought by Ohio. Wall Street Journal 45/31/17.

[1]Some of these suits have been brought by State Attorneys General, such as the suit brought by Ohio. Wall Street Journal 45/31/17.

[2]New York Law Journal June 8, 2017.