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The Verdict Is In Suing Doctors For Addiction

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Posted 11 April 2013 - 06:05 PM

Suing Doctors For AddictionTony Francis, MD, Orthopaedic Surgery, 03:11AM Mar 31, 2013


A Las Vegas state senator introduced a bill which would hold doctors and drug manufacturers liable for addiction after prescribing controlled substances. This got picked up on Yahoo News and there was a comment on the PointOfLaw blog by an intern who viewed it as a meaningless expansion of tort law. Everyone seems to agree the law is pointless. Nothing more than "feel good legislation." So it doesn't appear the law is going anywhere, except in the trash bin. It is ill conceived. I left a comment on PointOfLaw which they kindly posted (contained infra). I am not sure it is as much an expansion of tort law as claimed. There has always been a common law tort for causing an addiction in the US. At least since 1948. Everyone seems to have mostly forgotten this.


I used to have a chronic pain practice filled with all kinds of addicted and habituated patients. Fibromyalgia and low back pain. Neck pain, too. It is very easy to turn a patient into an addict. And once they have a diagnosis to justify the addiction, they will rarely get better. Lawyers would accuse me of turning patients into addicts. But that was wrong. They were addicted when I got them. That goes hand in hand with running a chronic pain clinic. One should make an effort to get these patients into rehab and get clean. But the unfortunate reality is that many of them will stay addicted, no matter what.

For the last couple of years, I have been doing volunteer work with D and A cases in the jails, and elsewhere. It has led me to a more complete understanding of addiction. There are certain people who, because of genetic structure are at great risk to become substance abusers. It doesn't mean they all will end up there. But the chances are great most of them will. Then it becomes an exercise of spiritual growth and enlightenment to get out of the place called substance abuse. It can be done. But will power and medicine aren't the solution. Spirituality is. In this sense, D and A cases are no different from other spiritual maladies which express themselves in other inordinately excessive ways, such as materialism, seeking of pleasure, seeking of self and the like.

The first two cases cited infra occurred at a time of contributory negligence. In those days before the advent of comparative negligence, any showing of contribution by the plaintiff usually brought a summary dismissal against the defendant. The fact that the signal cases (in 1948 and 1954) were allowed to stand for the plaintiff tells us a lot. This is a very real tort. It doesn't need a law in Nevada. Or anywhere else for that matter.


PointOfLaw (3/12/13)

Suing doctors and drug companies for addiction to pain medication? Should doctors and pharmaceutical companies be liable to patients who become addicted to habit-forming drugs they rescribe/manufacture? If State Sen. Tick Segerblom (D-Las Vegas) has his way, they will be. Segerblom recently introduced SB 75, which would make doctors and drug makers liable for the treatment costs of those who become addicted to legally prescribed pain medications. The bill would also open up doctors and drug makers to potential punitive damages as well.

Thankfully, this rather ridiculous idea is starting to draw national attention and if the overwhelmingly negative response at a recent senate hearing on the bill is any indication, it has little chance of passing. Doctors, drug makers and experts of all varieties lined up to speak out against this proposed law. Most are concerned that it will do little to curb addiction and will negatively impact many who have a real need for these pain medications.

From a legal perspective, this proposed law is little more than the feel-good expansion of tort law that serves no purpose other than to make the Nevada government look like it is doing something to counter drug addiction and punish those 'big bad drug companies.' In our culture of ever increasing fear over medical malpractice and endless class action suits against drug makers, this law would simply add another layer of legal mess on the already damaged relationship between the doctor and patient. Instead of relying on medical knowledge, training, and judgment, laws like this force medical practitioners to make their decisions out of fear for legal consequences.

This is to say nothing of the total abdication of personal responsibility that this law embodies. There are incredibly strict guidelines about forewarning patients of possible side effects to medication, including potential addiction. However, no matter what steps are taken there will always be a portion of patients who will form a habit. Yes, there are undoubtedly some doctors who over prescribe and enable addiction. Yes, there are likely patients who are predisposed to addiction. But in the end, a good number of those who become addicted simply don't follow the directions whether by accident or intentionally, and they must be held accountable for their own actions on some level.

This type of legislation is no way to run tort law, no way to hold doctors accountable for actual malpractice, and it is certainly no way to make sure that patients get the kind of care they actually need.

1 Comment

Tony Francis | March 21, 2013

There is plenty of case law indicating physicians can be held liable for causing addiction with prescribed controlled substances. Examples are King V. Solomon MA, (1948) 8 ALR 2d 1, Los Alamos Medical Center v. Coe, NM (1954) 50 ALR2d 1033 and Ballenger v. Crowell NC (1978) 16 ALR4th 989.

Of course, the common law tort requires some kind of expert testimony concerning standard of care. I suppose the proposed law tries to bring a kind of strict liability standard to both physicians and drug manufacturers. That doesn't seem like a good idea. A lot of chronic pain patients are addicted. What are you going to do about it? It is just the way it is.

http://www.pointofla...-medication.php#more

Yahoo News

CARSON CITY, Nev. (AP) -- A bill that would allow patients addicted to prescription drugs to sue the doctors who prescribed the medication — and the drug's makers — was met with stiff opposition Wednesday in a Nevada legislative hearing. Sen. Tick Segerblom, D-Las Vegas, said doctors aware of the risks associated with addiction from prescription drugs should be responsible if those adverse effects are realized.

"They know the person can get addicted to the drug so they should pay for the process of them getting off it," said Segerblom, the sponsor of SB75.

http://news.yahoo.co...-132414776.htmlKing et al v. Solomon Massachusetts Supreme Court (1948)

QUA, Chief Justice. This is an action against a physician for malpractice. It was originally brought by Eva King by writ dated February 21, 1942. Her husband, Leo A. King, was admitted on motion as a party plaintiff on October 7, 1946. He claims consequential damages for medical expenses in a separate count.

There was evidence that on December 25, 1939, the plaintiff, Eva King was suffering from nausea but without pain; that the defendant, without any complaint of pain by her, without any physical examination, or questions as to medical history, gave her a hypodermic injection of morphine, which was repeated twice that day; that early in 1940 the defendant gave her another injection in similar circumstances; that in 1941 the defendant gave her occasional injections until by July she was receiving about two injections a week; that by the end of August he was giving her an injection every day, in September twice a day, and in October three times or more a day until the plaintiff Leo A. King ordered the defendant from the house and threatened to 'clean him up'; that thereafter the plaintiff Eva King became 'jumpy and nervous'; and that two days later, 'after telephoning about every doctor in Adams for morphine,' she experienced a complete blackout and was taken to a hospital suffering from morphine addiction described as 'one quarter the way along to confirmed addiction.' There was evidence from which the jury could find that all these injections were of morphine. This plaintiff testified in effect that she had never stated she had pain until after the defendant had ceased giving her the injections. In 1944 she had her gall bladder removed.

She testified that a stone was found, and that after the operation the nausea she had had since 1939 ceased. There was medical evidence that gall stones 'don't come over night'; that the nausea was caused by the gall bladder trouble; that it was possible to have gall bladder trouble with nausea and without pain; and that it was not proper medical practice to administer morphine to a patient who complained of nausea but not of pain, or over a period of time where there was no pain involved, or to continue giving morphine in the absence of a diagnosis of a condition that could not be cured.

On the foregoing evidence the jury could find that the defendant in administering morphine to the plaintiff Eva King over a long period of time with constantly increasing frequency until she became to a considerable extent addicted to the drug failed to observe the standard of skill and care required of him as a physician. There was ample evidence, which need not be stated in detail, that her condition when she was taken to the hospital was proximately caused by morphine administered by the defendant notwithstanding evidence that another physician had given her codeine 'from 1939 on and during the period of time Dr. Solomon was treating her.' and that she had taken quantities of phenobarbital for a period not shown to have coincided with the period during which the defendant was administering frequent injections of morphine.

It could not be ruled as matter of law that the plaintiff Eva King was guilty of contributory negligence, or that she assumed the risk of addition. It is true that she knew she was getting the injections, and that eventually she sought them, and she testified that by about the last of July she was 'beginning to get a little sneaky -- starting to lie' and did not always tell the defendant the truth about her condition. She also testified that she did not know what the defendant was giving her, although in July she had a 'suspicion,' and she knew it was something that was relieving her and making her feel 'pretty high.' From this, together with other evidence that need not be stated, the jury could have found that she knew she was getting morphine, but they were not obliged so to find. Much less were they obliged to find that she knew at what point addiction would begin, or that at any time before addiction became a fact she had ceased to rely upon the superior knowledge of the defendant as to the amount of the drug that could safely be taken over a given period of time. There was medical evidence that a person could become addicted 'without knowing it.'

This decision rests upon evidence of improper and unprofessional conduct on the part of the defendant leading to addiction in the plaintiff Eva King.

Nothing contained herein need cause anxiety to an honest physician who administers narcotics to a patient in accordance with the prevailing standards of medical practice.

The defendant's exception is overruled. The plaintiffs' exceptions are sustained. The verdicts entered on leave reserved are set aside, and the verdicts returned by the jury are to stand.

So ordered.

http://ma.findacase...._0003.MA.htm/qx

LOS ALAMOS MEDICAL CENTER, Inc., a Corporation, Cross-Appellee, v.Joseph S. COE, Jean S. Coe, Appellees and Cross-Appellants, charles A. Behney, Appellant. New Mexico (1954)

Supreme Court of New Mexico.

COMPTON, Justice.

This is an appeal from a judgment awarding damages for injuries allegedly resulting from malpractice. The action was orginally brought by Los Alamos Medical Center, Inc. against appellee, Joseph S. Coe, on account. On motion, appellee Jean S. Coe, his wife, was made a cross complainant, and appellant and Dr. Roscoe S. Wilcox were made cross-defendants. The account was not disputed and judgment was rendered accordingly. By counterclaim appellees alleged that the Medical Center, through its employees Dr. Wilcox and appellant Behney, negligently administered and prescribed morphine for self-administration without supervision in such amounts and frequency as to cause her addiction. It is alleged that as a result of her addiction, her health was greatly impaired and that she suffered great pain in effecting a "withdrawal." They seek damages for such wrongful acts. The husband seeks consequential damages for loss of consortium of his wife and for medical expenses in a separate amount. The cross-defendants filed separate answers denying her addiction and their negligence as a cause thereof. Dr. Behney further alleges that all morphine prescribed or administered by him was made upon the insistent demands of appellees after having warned them of the dangers incident to the use of such drug; that if he were negligent, the Coes were guilty of contributory negligence as a proximate cause of the alleged injuries. Dr. Wilcox, and likewise the Medical Center, urged the same defenses as Dr. Behney. The Medical Center as a further defense pleaded immunity from liability by reason of being a non-profit corporation, engaged in the operation of a hospital and medical center for the purpose of providing medical, dental and hospital services and care without profit. At the close of the evidence, the cause was dismissed as to Dr. Wilcox. The issues were submitted to a jury which returned its verdict in favor of the Medical Center, and awarded both compensatory and punitive damages against Dr. Behney. Judgment was entered on the verdict and Dr. Behney brings the judgment here for review.

The main question is the sufficiency of the evidence to sustain the verdict. In this regard, all conflicts in the evidence must be resolved in favor of the successful party and all reasonable inferences indulged in to support the judgment, and all evidence and inferences to the contrary must be disregarded. Mrs. Coe was admitted to the hospital on several occasions. On March 28, 1950, she was admitted for dilation and curettage. She again entered the hospital April 16, 1950 for similar treatment. On June 6, 1950, she was admitted for a major operation, separation of adhesions and supra-vaginal hysterectomy. The latter operation was performed by appellant. Subsequently, on June 13, 1950, she entered the hospital for removal of intestinal obstructions and was finally discharged therefrom July 15, 1950. During all this time she received narcotics in some form or another. It seems Dr. Behney did not perform the latter operation, nevertheless, Mrs. Coe again became his patient on July 25 and remained such until November 3, 1950, at which time she went to Los Angeles, California and entered the Good Samaritan Hospital in Los Angeles, California, where she was diagnosed as a morphine addict after surgery.

As previously stated, Mrs. Coe became Dr. Behney's patient on July 25, 1950, the date she was discharged from the Medical Center. After returning to her home she began to complain of severe pains and appellees consulted Dr. Behney about self-administration of narcotics at home and this was agreeable to Dr. Behney. The husband, son, daughter, son-in-law, and Mrs. Coe herself, all administered morphine to her 178*178 by hypodermic injections. Actually, from July 25, 1950 to November 3, 1950, Dr. Behney made no calls to their home nor did he treat her organic trouble except to make two or three pelvic examinations. When she would complain of pain, they would phone appellant and he would issue a prescription for morphine to be administered for relief of pain as needed, and they were to be the judge in this respect. This continued until the Coes themselves decided that she was not recovering properly from her organic trouble and they decided to call a Dr. Norris of Los Angeles and to ask his advice concerning her progress. Dr. Norris advised her to contact Dr. Cornish of Albuquerque, which she did. Subsequently, about November 1, 1950, the Coes decided to go to Los Angeles for further consultation with Dr. Norris. They discussed the matter with Dr. Behney, who advised them it was unnecessary as her recovery was satisfactory, nevertheless, he agreed, and on November 2, 1950 Dr. Behney gave her an additional 30 morphine tablets and 36 sleeping pills to tide her over until she could contact Dr. Norris. This prescription is not shown on the above chart. She left Albuquerque November 3, 1950 by plane and was admitted to the Good Samaritan Hospital the following day. She then complained of great pain, requiring an unusual amount of morphine. Dr. Norris performed an exploratory operation on November 13 and found her to be suffering from adhesions and intestinal obstructions and apparently experiencing pain. Following the operation, her tolerance to pain was so low as to arouse Dr. Norris' suspicion as to her use of narcotics. It was found she had been using morphine about every three hours, day and night, but having utmost confidence in Dr. Norris, Mrs. Coe confided in him the amount of morphine she had taken and at his demand agreed to undertake the withdrawal, which followed. The operation performed by him was successful and she was discharged from the hospital December 7, 1950. The agonies of her withdrawal were related to the jury by Dr. Norris and Mrs. Coe. This evidence warrants an inference of addiction due to the lack of care on the part of appellant. Instead of attempting to discover the cause of her suffering and relieving it, Dr. Behney continually gave her morphine to relieve her pain and desires, with the result, as the jury found, she became an addict.

The Coes themselves were apprehensive and discussed the possibility of addiction with appellant and he assured them that they had no cause for alarm as her pain was so severe that it would counteract the effect of the morphine. He was thus put on notice but remained indifferent as to the harmful results which followed. We think this evidence was sufficient to take that issue to the jury.

Mrs. Coe's deposition was taken December 18, 1951, in which she stated that she felt she became an addict while in the hospital, the latter part of June or the first part of July, 1950. Appellant excepted to all testimony concerning the use of morphine by her subsequent to that date, claiming she is bound by her answer. There is no merit to this contention. Both Dr. Norris and Dr. Cornish testified that a person could not testify with any degree of certainty when he becomes an addict. The testimony of the medical experts on the subject should be controlling.

The evidence is clear that Mrs. Coe in order to get a prescription, frequently complained of pain when no pain was present. She testified she used it at the last for the jitters and for nervousness, at other times just to feel good. But being fearful of its harmful effects, appellees contacted appellant as to the consequences of using too much morphine and were told by him not to worry in this regard as Mrs. Coe was improving physically and that she could be given morphine whenever she felt the need of it. Appellees testified they relied upon the instructions of appellant in this regard. Obviously they had a right to rely upon his superior knowledge.

The judgment will be affirmed with direction to the lower court to enter judgment against appellant and the surety upon his supersedeas bond, and it is so ordered.

http://scholar.googl...dt=2,5&as_vis=1
BALLENGER v. CROWELL, North Carolina (1978)

Court of Appeals of North Carolina.

CLARK, Judge.

In the case sub judice, however, the plaintiff alleged that the defendant was negligent in continuing to prescribe narcotic drugs for the plaintiff during the years 1962 to 1974. This case directly presents the question of whether or not North Carolina recognized the continued course of treatment rule at common law, and, therefore, this is a case of first impression.

We therefore hold that the continued course of treatment rule is applicable to this case, and therefore the cause of action did not automatically accrue in 1962 as asserted by the defendant.

Since there exists a genuine issue as to material fact as to when the plaintiff knew or should have known that the treatment was not necessary, summary judgment was not appropriate.

For the reasons stated above defendant's motion for summary judgment was improvidently granted.

Reversed and remanded for proceedings consistent with this opinion.


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