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Is Over-Prescribing Opioids a Form of Medical Malpractice?

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The short answer to this question is, “Yes, overprescribing opioids is a form of medical malpractice under most circumstances.” The ultimate question is whether the healthcare provider’s treatment of your condition fell below the high standard of care expected of such professionals, to the extent that it constituted medical negligence. Sometimes the healthcare provider is held liable, and sometimes not.

Naturally, patients don’t always win medical malpractice lawsuits. Suppose, for example, that the patient failed to tell his doctor about a previous opioid addiction. Such a misrepresentation might exonerate the healthcare provider by establishing that the opioid prescription was issued in good faith. Under other circumstances, however, medical negligence is either obvious or can be uncovered through a diligent investigation.

Examples of Popular Opioids

The primary dangers of opioids are that (i) they are typically highly addictive and (ii) overdoses are common (and often fatal) unless sound dosage recommendations are followed. The following are a few examples of some of the most commonly used opioids:

  • Codeine
  • Oxycodone
  • Hydrocodone
  • Tramadol
  • Morphine
  • Hydromorphone (Dilaudid, for example)
  • Fentanyl
  • Carfentanil
  • Opium
  • Heroin
  • Methadone (ironically, this drug is used primarily to treat heroin addiction.)

Some of these substances can be dispensed legally with a prescription while others, such as heroin and opium, are illegal under any circumstances. None of these substances are available over the counter upon request.

Scope of the Opioid Epidemic in the United States

Opioid use in the United States has skyrocketed in recent decades – in fact, over 60,000 people per year die from opioid overdoses. Although the death rate increased rapidly in the 21st century, it seems to have leveled off recently. The reasons why these overdoses occur vary according to circumstances and motivation:

  • Some people die from illegal opioids such as heroin that are taken purely for recreational purposes or to self-medicate chronic pain.
  • Some people die from quasi-legal opioids (legally available by prescription) that were bought “off the street” rather than prescribed to them.
  • Some people die from opioids that were over-prescribed to them by a doctor.
  • Some people die from opioids that the victim bought off the street to satisfy an addiction that was originally generated by negligent overprescription by a healthcare provider.

Celebrity Deaths from Opioid and Sedative Overprescription

Over the years, a number of high-profile celebrities have died from overdoses of opioids or opioid-like substances. In at least some of these cases, it has been suggested that the celebrity “bought off” a doctor by offering him an unusually high salary in exchange for prescribing opioids to the celebrity based on request rather than medical need. The following are some prominent examples of cases that garnered great attention in the media:

  • Elvis Presley: Elvis Presley died in 1977 of cardiac arrest, and an autopsy revealed the presence of 14 drugs in his system at the time of his death. Presley’s personal physician, Dr. George Nichopoulos, was acquitted in criminal court even though he had prescribed Presely more than 10,000 doses of various drugs, including opioids. His medical license was suspended for three months as a result of his misconduct.
  • Michael Jackson: In 2009, pop superstar Michael Jackson died from an overdose of propofol. In 2011, his personal physician, Conrad Murray, was convicted of involuntary manslaughter and sentenced to four years in prison for improperly administering the drug to Jackson. Although propofol is not an opioid, the case can still serve as precedent in cases against doctors who overprescribe opioids and other substances.
  • Prince: Popstar, Prince, died in 2016 from an overdose of the opioid fentanyl. Minnesota physician, Michael Schulenberg, who treated Prince, agreed to pay $30,000 to settle a federal civil violation for writing an illegal prescription.
  • Although Schulenberg was sued for medical malpractice-based wrongful death by Prince’s family, the case was dismissed in 2019, prompting many in the media to speculate that Schulenberg may have reached a private settlement with Prince’s family.

Connecticut Law on Opioid Prescriptions

Connecticut has enacted extensive legislation governing how healthcare providers may dispense opioids. Some (but by no means all) of these rules are listed below:

  • Minors may not be prescribed more than a 7-day supply of opioid medications, except under certain extenuating circumstances, which must be thoroughly documented.
  • The healthcare provider must educate the patients (and their parents, if they are minors) on the risks associated with the misuse of opioids.
  • Electronic prescriptions of controlled substances, including opioids, are required.
  • The initial prescription for an opioid to an adult for outpatient use is limited to a 7-day supply.

Negligence Per Se and Violations of the Laws Governing Opioid Prescriptions

Since Connecticut law on opioid prescriptions is quite specific in many ways, it is often the case that the easiest way to win an opioid overprescription lawsuit is to prove that the healthcare provider violated a law concerning opioid prescriptions. Under Connecticut’s negligence per se legal principle, in most cases, proving that the healthcare provider broke the law is enough to automatically establish negligence.

Causation and Damages

Proving negligence will take you a long way towards winning an opioid-based medical malpractice lawsuit, but it is not enough all by itself. In addition, you must prove that
you suffered harm, and that the harm was directly caused by the legal violation committed by the healthcare provider.

Medical Malpractice Based on Poor Judgment

Medical malpractice can be proven even if the healthcare provider didn’t break any specific law. Ultimately, many cases come down to a judgment call by the prescribing physician, and it may take an expert medical witness to establish that the prescribing physician’s judgment was poor enough to qualify as medical malpractice. Some of the ways that a physician can commit medical malpractice through overprescription of opioids include:

  • Failing to take an adequate medical history;
  • Misdiagnosing your condition;
  • Failing to refer you to a specialist when appropriate, especially when the doctor lacks experience in treating your particular condition;
  • Deviating from standard treatments for your condition without a justifiable reason;
  • Ignoring previous addiction problems you may have had, or recreational use of narcotics; and
  • If you suffer chronic pain, keeping you on opioids over the long term without referring you to a pain management specialist, who might be able to determine a less risky way for you to manage your pain.

Wrongful Death

Overprescription of opioids can (and often does) lead to the death of the patient, especially though overdose. When this happens, the appropriate kind of civil action to file is a wrongful death lawsuit, not a personal injury lawsuit.

The executor of the deceased patient’s estate (named in the patient’s will or appointed by the probate court) must file the lawsuit. Damages can be extensive, but they go to the deceased patient’s probate estate for distribution by the probate court to estate beneficiaries (typically close relatives of the deceased patient).

Comparative Fault

In many cases, the harm suffered by the patient is partly the fault of the healthcare provider and partly the fault of the patient. Some of the ways in which a patient can be held at least partly at fault for his own damages include:

  • Misrepresenting his own medical history (by omitting to mention a previous opioid addiction, for example, as mentioned above);
  • Abusing prescribed medications (taking several day’s worth of medication all at once, for example);
  • Faking a painful medical condition in order to obtain an opioid prescription; and
  • Combining legally prescribed opioids with additional opioids purchased illegally on the black market.

If a patient is found partially responsible for the harm he suffered through the overuse of opioids, Connecticut law on comparative fault allows for two possibilities:

  • If the harm was mostly the patient’s fault, the patient will lose the lawsuit and receive nothing in damages.
  • If the harm was at least 50 percent the fault of the healthcare provider, the patient can still recover damages, but his recovery will be reduced by the percentage of fault assigned to him by the court (if the harm was 30 percent his fault, for example, he will lose 30 percent of his damages).

Damages

Compensatory damages are designed to compensate you for all that you have lost, whether tangible or intangible. You can be compensated for medical expenses, addiction rehabilitation expenses, lost earnings, pain and suffering, and incidental expenses, among other losses. Connecticut law places no artificial caps on the amount of damages you can be awarded, and intangible losses such as pain and suffering can be highly compensated.

Punitive damages are awarded, if at all, in addition to any compensatory damages that you receive. Punitive damages are awarded only in cases where the healthcare provider’s conduct was so outrageous that punitive monetary sanctions are considered necessary to deter other healthcare providers from repeating the same misconduct – arbitrarily issuing prescriptions any time the patient requests one, for example.

Punitive damages are awarded in less than five percent of medical malpractice lawsuits, and damages are limited to the costs of the lawsuit, including attorney’s fees.

Will Criminal Charges Interfere with a Civil Lawsuit?

No, they won’t. In many cases, a healthcare provider’s misconduct is so serious that criminal charges are warranted (in the death of Michael Jackson, for example). Criminal cases and civil lawsuits are two separate proceedings that can both take place at the same time – you don’t have to wait until one proceeding is finished to commence the other.

In fact, it is much easier to win a medical malpractice lawsuit than to win a criminal conviction. Even if your healthcare provider is acquitted on criminal charges, it is still possible for you to win a medical malpractice lawsuit against him, due to the differing standards of proof between a civil lawsuit and a criminal prosecution.

Contact Us Immediately If You Think You Might Have an Opioid Overprescription Claim

If you have suffered harm through the overprescription of opioids, you deserve compensation – especially if it resulted in an opioid addiction that may take years to overcome. With our extensive experience in handling opioid overprescription medical malpractice cases, the lawyers at Berkowitz Hanna can provide you with the assistance you are going to need to win all of the compensation you deserve.

Call us today or contact us online for a free initial consultation. We serve clients from throughout Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton. Our firm operates on a contingency basis, meaning that you pay nothing upfront, and you pay nothing at all unless we win your case.