By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Health Care Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
Rebeka Rioth, 2017 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2008, a 45-year-old man’s primary care physician began prescribing powerful and highly addictive pain pills for lower-back pain. The pain pills, known as opioids, are prescribed at alarming levels for millions of patients in the United States, which results in frequent addiction and serious side effects. From 2008 to 2012, the man’s doctor increased the dose of opioids dramatically, which caused depression, loss of employment, and, ultimately, the need for entering a drug rehabilitation center for the treatment of opioid addiction. The man and his wife filed a medical malpractice lawsuit against the primary care physician and the hospital for the negligent and reckless act of prescribing opioids at dangerous levels, and they won $17.6 million in damages.
Background: In 2008, a 45-year-old man went to his primary care physician complaining of lower back pain. The man’s doctor immediately began prescribing opioids, highly addictive narcotic pain medications, which are commonly used to treat moderate to severe pain that may not respond well to other pain medications.
From 2008 to 2012, the doctor continued to prescribe the man increasingly higher doses of opioids for back pain. Despite the fact that the man’s back pain did not improve, the doctor continued to prescribe pain pills. At one point, the man was taking multiple types of opioids, including Vicodin and OxyContin. During the four-year period, the man was prescribed 37,000 pain pills, with an average daily dose that rose from 49 mg to 1555 mg.
The cumulative effect of the pain pills resulted in the man’s inability to continue his job as a mechanical maintenance worker, estrangement from his wife and daughter, and severe depression. Although the man left the care of his primary physician some time in 2012, he became addicted to the prescribed pain medications and eventually entered a drug rehabilitation center to obtain treatment for his addiction.
The man and his wife eventually sued the man’s primary care doctor as well as the hospital, and they alleged that the doctor and the hospital were negligent in prescribing a massive quantity of highly addictive pain medications for back pain. Attorneys for the hospital and doctor argued that while opioid prescriptions of more than 100 mg per day render a patient at risk for serious side effects and addictive behaviors, the man ultimately was responsible for his addiction and the side effects that accompanied the pain pills.
After a seven-day jury trial, the jury returned a verdict in favor of the man and found that the doctor and the hospital were guilty of medical malpractice in the negligent administration of massive doses of opioids. Although the jury initially awarded the man and his wife $17.6 million in damages, the award will be reduced because the jury also found that the man was partially responsible for the addiction that resulted from the initial dose of opioids in 2008. The award also is significant in that $15 million of the award was for punitive damages, which are intended to punish the defendant rather than compensate the plaintiff.
What this means for you: This is a landmark case in the current opioid abuse epidemic in the United States. It was an undisputed fact during the trial that opioids are overprescribed in the United States medical system at dangerous levels and that primary care physicians, therefore, have a duty to closely monitor the administration of these pain medications.
However, and somewhat at tension with this prior statement, there has been additional pressure put on physicians and hospitals by regulatory and accreditation agencies such as The Joint Commission and CMS (previously) to manage pain as part of patient rights. This focus caused a reversal in the usual reluctance of physicians to prescribe opioids for fear of their addictive properties and resulted in the now-common practice of ordering them as the first line of defense against even mild pain. These drugs work well for the opiate naïve, but they require continual dose increases to maintain their effectiveness as patients’ bodies become tolerant. Patients with chronic pain lasting years require doses that far exceed drug manufacturer, FDA, or CDC recommendations.
Expert physicians for the man testified that many primary care physicians are under the misperception that drug toxicity, or harmful reactions from opioid overdoses, can be avoided by slowly adjusting the dose of opioids for non-cancer pain upward over time. However, it is this incorrect view that has led to the epidemic of dangerously high doses of opioids in patients with simple maladies such as back pain. It is also relevant to note that not only did the jury, in this case, find the primary care doctor in breach of the proper standard of medical care, but it also held the hospital responsible for failing to monitor the type and level of pain medications that the doctor was administering over a prolonged period of time. Physicians struggling to manage patients with chronic pain can and should consult with their colleagues who specialize in pain management, an expanding field of medical practice, as well as provide referrals for non-traditional medical interventions such as acupuncture, holistic, and/or herbal modalities.
Additionally, the outcome of this case was dependent not only on the use of expert physician testimony, but also on evidence from the CDC, which regularly issues guidelines for the appropriate administration of medications. Attorneys for the man relied on a recent CDC guideline that cautioned against an average daily dose of more than 100 mg of opioids. This piece of evidence was successful in establishing the appropriate standard of medical care, which ultimately would reveal the high degree of recklessness on the part of the doctor and hospital for prescribing opioids on a daily average of 1555 mg toward the end of the four-year period.
REFERENCE
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St. Louis County Circuit Court, Missouri, Case No. 1422-CC01258 (June 28, 2016).
