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Is Over-Prescribing Opioids a Form of Medical Malpractice?

On Behalf of | Feb 5, 2021 | Medical Malpractice

Over-prescribing opioids can be a form of medical malpractice. As in most of the law, there is rarely a one-size-fits-all answer to broad legal questions like this one. Whether you can sue your physician for malpractice for over-prescribing opioids depends on the particular facts of any given case. But new laws continue to pass that impose tighter and tighter restrictions on physicians’ ability to prescribe these useful but highly addictive medications. So if your doctor violated any one of the numerous new governmental restrictions, your chances of successfully claiming malpractice increases.

The Opioid Crisis

In the 1990s, pharmaceutical companies assured doctors that prescription opioid painkillers were safe and not likely to cause addiction. So doctors began prescribing these pills to help people experiencing pain. The most commonly prescribed natural opioids became morphine and codeine, and the most frequently prescribed synthetic opioids were Vicodin, Percocet, Dilaudid, and OxyContin.

Fast forward to 2018, where data from the National Institute on Drug Abuse reported that 128 people in America died every day from opioid overdoses. In 2017, over 47,000 people died nationwide from opioid overdoses, and 1.7 million people’s lives were negatively impacted by opioid abuse and addiction. And these figures do not include the hundreds of thousands of people whose abuse of prescribed opioids morphed into heroin addiction.

Obviously, we have a crisis on our hands. And that crisis is costly. The CDC estimates that the US spends more than $75 billion per year on opioid-related issues. This includes substance abuse treatment, medical costs, and criminal prosecution of those distributing or obtaining these drugs illegally. Due to the severity of this problem, many states enacted laws limiting the volume of opioids a doctor can legally prescribe.

Tennessee Opioid Prescription Restrictions

With one of the 15 highest opioid death rates in the country, Tennessee had to act. In July of 2018, the state legislature enacted an opioid reform initiative called “TN Together.”  The laws limit the number of opioids a doctor can prescribe, establish detailed state guidelines for chronic pain management, and impose punitive sanctions for doctors who continue over-prescribing opioids.

Medical Malpractice and Opioids

Medical malpractice is a subcategory of personal injury claims that happen in a medical setting. They can stem from a shockingly wide array of circumstances, but they all have one thing in common: The person asserting the claim (plaintiff) must demonstrate that the healthcare practitioner was negligent.

Medical Standard of Care

To prove negligence, one must show that the healthcare practitioner failed to meet the standard of care applicable under the circumstances. But what does “standard of care” actually refer to?

In a medical setting, the standard of care is essentially what a reasonably competent medical professional would do in the same or similar situation. It considers the medical knowledge available at the time of treatment, the practitioner’s specialty, and the amount of skill and expertise of the average healthcare provider in the same field. Typically, to prove deviation from the standard of care, medical experts must establish healthcare providers’ acceptable practices under similar circumstances. If your doctor’s actions do not meet this standard, they may have committed malpractice.

Proving Breach of Standard of Care

Since Tennessee has strict laws regarding opioid prescriptions, the easiest way to prove breach of the standard of care is to show that they broke the law. This would establish negligence per se, which literally means negligence as a matter of law.

But when it is not so cut-and-dried, the courts can look at many factors to determine if your doctor committed medical malpractice by over-prescribing opioids in your case. Typically, when medical experts testify as to a breach of the standard of care, they will consider:

  • Your entire medical history;
  • Your history of pain, including the frequency and severity of discomfort;
  • The cause(s) of pain and your doctor’s diagnosis;
  • The level of experience your provider has in treating your condition;
  • The current medical standards regarding the treatment of your condition;
  • Your previous history of substance abuse, if any; and
  • Whether your doctor considered referring you to a pain specialist.

The last two factors can be essential considerations.

Substance Abuse History

Let’s consider a hypothetical illustration. Say that Sally hurt her spine 15 years ago in a skiing accident. Because she was in so much pain, her doctor prescribed OxyContin to provide relief. Sally spent the next year steadily increasing the dosage as her tolerance to the drug built up. Eventually, she became addicted to OxyContin, and her addiction required extensive rehabilitation and treatment. She’s been drug-free for 10 years now and sees a specialist for a minor surgical procedure.

If this specialist knows Sally experienced prior opioid addiction and prescribes these pills anyway, that doctor might be negligent. Of course, there must be harm for a medical malpractice suit to succeed. So the new prescription must have caused Sally to relapse and become addicted again for a negligence claim to stick.

However, if Sally did not reveal to the surgeon that she had previously struggled with addiction, the doctor might not be liable.

Long-Term Pain Management

Now let’s assume that back in 2015, Jack developed a chronic illness that caused him daily pain. His doctor prescribed opioids, but the illness continued to worsen over the next five years. It is now 2021, and over the years, Jack’s doctor continued giving Jack higher and higher doses of opioids. Now, Jack is hopelessly addicted.

Under such circumstances, an expert would likely testify that Jack’s doctor should have referred Jack to a pain management specialist. A specialist could have helped Jack kick his addiction before it got out of control. They also could have worked with him to find non-narcotic options for ongoing pain relief. Failure to make this referral and continuing to over-prescribe opioids likely constitutes a breach of the standard of care.

We Can Help!

If you believe that your opioid addiction resulted from your doctor’s negligence, you should speak with the experienced medical negligence and malpractice legal team at Batson Nolan PLC. We can look at your case and determine if you have a viable claim. Call us today, or contact us online to set up a free consultation in our Clarksville or Springfield office.