De-Bunking the Opioid Litigation Epidemic
Kelley Drye’s Pharmaceutical Litigation Team
Kelley Drye Client Advisory
November 16, 2017
If you type ‘opioids’ into a search engine, chances are you’ll be greeted with headlines like: “Opioid abuse is in everyone’s backyard”.  The Washington Post writes: “Even this puppy wasn’t safe from America’s opioid crisis”; and on NBCNews you can read, “Born Addicted: The number of opioid-addicted babies is soaring.”  It seems that, according to every news source in America, the time for tempered rhetoric is over. The opioid crisis has been declared a “national health emergency.”

Sensational story lines sell newspapers and generate hits on websites.  Currently, the pharmaceutical industry—which manufactures and distributes medicine that for many provide vital relief from chronic, agonizing pain—is being cast by the media, and litigants, as the cause of a national crisis.  But the causes of the Opioid Epidemic are complex which is reflected in the science.  There may not even be an “epidemic”. 
 

The Science

Most people who are prescribed opioids use their medication without incident.  In fact, data from the National Survey on Drug Use and Health shows that only 1 to 2 percent of the 98 million prescription opioid users are likely to become addicted in any one year.  A fraction of those may die from overdose.  Other data suggests overdoses involve combinations of drugs (over 90% of overdoses in New York).

The Office of the Inspector General has published reports demonstrating that a relatively small number of doctors and pharmacists are responsible for a disproportionate number of prescriptions.  In 2016, the OIG identified 400 prescribers who had “questionable opioid prescribing patterns” involving beneficiaries who were at a high risk of opioid abuse.  While this is a small number in the vast pool of competent medical practitioners, it amounts to a potential 90,000 prescriptions to high-risk individuals given out in all.

Other health factors must be considered as well.  A report by Coverys found that 24% of medication related medical malpractice suits involved the prescription of opioids; about a third of those claims are ascribed to errors in the ordering process; another third to errors in administration and prescription; and a final third to negligent management and monitoring.  (The next greatest source of litigation was coagulants with 16% of suits.)

Newer studies are exploring the relationship between prescription opioid abuse and mood disorders.  A 2017 study in the Journal of Substance Abuse found that an astounding 81% of patients with chronic pain have mood disorders.  These individuals, studies have shown, get much less pain relief from their opioid consumption than do those without mood disorders.  Bearing this out: patients with depression are twice as likely to abuse opioids.  Of patients whose deaths were ascribed to prescription opioids, 56% had a history of mental illness; 45% had been hospitalized for psychiatric reasons. 

A history of drug abuse can also be a significant indicator of future opioid addiction.  A 2015 study in Addictive Behaviors, found that the greatest predictor for whether a person is likely to abuse pain-relieving opioids is whether they have used illicit drugs in the last year.  Amongst those seeking treatment for OxyContin addiction, 78% had previously sought treatment for another drug addiction, according to a study published in the American Journal of Psychiatry.

Of course, the same percentage (78%) had never had a prescription for OxyContin at all, and had thus entirely bypassed the legal, ostensibly regulated healthcare system through which pharmaceutical companies, and those with medically recognized chronic pain, should operate.
 

The Litigation

From a legal perspective, these facts undermine the case against pharmaceutical companies.  An element of any claim is causation—that the harm was caused by the wrongful action of the charged party.  The causes and effects of the opioid crisis are not simple or linear.
 

Keeping You Updated

For more on this, and other topics related to the Opioid Litigation Epidemic, follow our on-going coverage, and click here if you would like more in-depth updates on this legal phenomenon as it progresses.

Bill Escobar
(212) 808-7771
wescobar@kelleydrye.com

Neil Merkl
(212) 808-7811
nmerkl@kelleydrye.com

Cliff Katz
(212) 808-7609
ckatz@kelleydrye.com