Written by: Ryan Donihue, Esq. Beginning in 2016 and continuing to date, mainstream media has brought the ever present and alarming increasing rate of dependence on opioids to the forefront of our daily lives. Surprisingly, the media’s attention toward the nation’s “Opioid Epidemic” has been largely silent and unreported as to three of the most medically complicated and challenging groups of patients’ whom healthcare providers examine, diagnose and treat on a daily basis, those being pregnant woman, neonates and infants. Out of this media spotlight has developed a national awareness to opioid addiction which has caught the attention of the Plaintiffs’ Bar. In fact, we are just now starting to see attorneys across the country commence litigation against the pharmaceutical companies who manufacture opioids as it is alleged that there was “concerted effort” to “mislead doctors and the public” concerning the need to prescribe these drugs to patients which caused and/or…       Read More

The opioid epidemic in the United States rages on, and the legal battles are just beginning to heat up. Individuals and state governments are bringing claims against manufacturers, distributors, large drugstore chains, and individual prescribers. At least twenty-five states, cities and counties have filed opioid-related actions in the past year, not to mention the hundreds if not thousands of people who are suing healthcare providers for prescribing these highly addictive painkillers. Litigation against the nearly $13 billion a year opioid industry closely mirrors the strategy used in the 1990s to combat big tobacco. With litigation on the rise, it is imperative that the defense bar prepare for the long road ahead by taking a close look at the new state prescriber laws as well as the statistics regarding opioid addiction and overdose.

Recently, the Department of Justice created a new initiative to address the rapidly increasing volume of litigation against opioid drug manufacturers, providers, and pharmacists; the Prescription Interdiction and Litigation (PIL) Task Force.

In the United States, 40% of all opioid overdose deaths involve prescription opioids and, in 2016, more than 46 people died every day from overdoses involving prescription opioids. “Opioids were involved in 42,249 deaths in 2016, and opioid overdose deaths were five times higher in 2016 than 1999. In 2016, the five states with the highest rates of death due to drug overdose were West Virginia (52.0 per 100,000), Ohio (39.1 per 100,000), New Hampshire (39.0 per 100,000), Pennsylvania (37.9 per 100,000) and (Kentucky (33.5 per 100,000).” According to the National Institute of Health’s National Institute on Drug Abuse, there has been a steep incline in the number of overdose deaths from 2002 to 2015, as captured in Fig. 1 below.

“More Americans died from drug overdoses in 2016 than those who lost their lives in the Vietnam War.”1)
The Proposed Federal Budget will Simultaneously Fund Opioid Addiction Treatment and Cut Medicare Spending:

As of February 12, 2018, the proposed Federal Budget for FY2019 has been submitted to Congress, and it specifically addresses “Combatting the Drug Abuse and Opioid Overdose Epidemic.” The proposal allocates $13 billion to combat the opioid crisis. However, the Department of Health and Human Services, overall, is getting a 21 percent cut from 2017 levels, or a $17.9 billion decrease in FY2019. It also offers more funding for combating infectious diseases – think this year’s flu season – but also significantly cuts Medicaid spending over a ten-year period.2)
The Budget could also significantly impact historical sources of government funding for drug addiction. Addiction treatment services have been designated as “essential benefits” since the Affordable Care Act was enacted. This means addiction treatment has been covered by the ACA’s Medicaid expansion, which would inevitably be curtailed by the new Medicaid cuts.

Florida is on the front lines of the opioid epidemic. According to the Florida Behavioral Health Association, opioid-related hospital costs amounted to $1.1 billion in 2015.1) This figure represents a steady increase in opioid-related hospital costs year over year, which were $460 million in 2010 and $933 million in 2014.2) Moreover, according to the Florida Department of Law Enforcement Medical Examiner’s Commission there were 5,725 opioid-related deaths reported in Florida in 2016.3) This represents a 35% increase in reported opioid-related deaths from the prior year. Prescription drugs, including opioids, were found to be the cause of death or present at death more often than illicit drugs, and accounted for 61% of all drug occurrences.4)
The State of Florida is fighting back. On May 3, 2017, Florida Governor Rick Scott issued an Executive Order declaring the existence of a Public Health Emergency as a result of the opioid epidemic.5) The Executive Order allows immediate access to the Opioid Targeted State Federal Response Grant from the U.S. Department of Health and Human Services. The Grant provides “$27,150,403 per year for two years to provide prevention, treatment, and recovery support services by state agencies”.6) Additionally, in September 2017 Governor Scott issued a legislative proposal including but not limited to instituting a 3-day limit on prescribed opioids (or 7-day limit if deemed “medically necessary”), requiring all healthcare professionals who prescribe or dispense medication to participate in the Florida Prescription Drug Monitoring Program (PDMP), and a $50 million budget allocation for countering substance abuse.

With the opioid crisis heavily in the forefront of the public’s mind, particular attention must be given as new avenues for liability emerge. Most blame pharmaceutical companies for pushing drugs like Oxycontin, Vicodin, and Morphine into the market. However, patients are beginning to pursue more claims  against their individual prescribers, and both state and federal governments have begun to crack down on pharmacists and physicians who are over-providing opioid painkillers. With litigation on the rise, it is imperative that the defense bar prepare for the long road ahead by taking a close look at the new state prescriber laws as well as the statistics regarding opioid addiction and overdose. Hall Booth Smith is quickly becoming an expert in defending opioid claims, and our attorneys have created a comprehensive guide focusing on the rapidly expanding law regarding opioid overdose and misuse. The purpose of this guide is to invigorate the defense…       Read More

Written by: Whit Carmon, Esq.  As of January 6, 2017, SB 319 took effect in Ohio. Signed into law by Governor John Kasich, on January 4, 2017, the bill contains two key provisions relating to outpatient prescriptions for opioid analgesics. First, the law prohibits pharmacists, pharmacy interns, or terminal distributors from dispensing opioid analgesics if more than fourteen (14) days have elapsed since the prescription was issued and the prescription is for drugs to be used on an outpatient basis. Second, the bill restricts such providers from dispensing more than a 90-day supply of these drugs, regardless of whether the prescription was issued for a greater amount. Importantly, however, the bill does not apply to individuals who are inpatient at institutional facilities. Section 3727.01 of the Revised Code defines an “institutional facility,” which includes Convalescent homes, Developmental facilities, Long term care facilities, Nursing homes, Psychiatric facilities, Rehabilitation facilities, Developmental disability…       Read More

I. INTRODUCTION “Opioids are a class of drugs that includes the illegal drug heroin; synthetic opioids such as fentanyl; and pain relievers available legally by prescription, such as oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine, morphine, and many others. Opioid pain relievers are generally safe when taken for a short time and as prescribed by a doctor, but because they produce euphoria in addition to pain relief, they can be misused (e.g., taken in a different way or in a larger quantity than prescribed, or without a doctor’s prescription). Regular use—even as prescribed by a doctor—can lead to dependence and, when misused, opioid pain relievers can lead to overdose and/or death.” •https://www.drugabuse.gov/drugs-abuse/opioids • July 6, 2017 Oxycodone is a Schedule II narcotic. Schedules are based on risk of abuse. Any drugs that are Schedule I (drugs with high risk and no counterbalancing benefit) are banned from medical practice. •https://medshadow.org/resource/drug-classifications-schedule-ii-iii-iv-v/ • March 14,…       Read More

Written by: Alex Battey, Esq. Anesthesia professionals often find themselves on the front lines of the ongoing fight against opioid addiction. Whether in the subspecialty of pain management or through their treatment of post-surgical patients, physicians and nurse anesthetists are often faced with the difficult taks of balancing the need for effective pain control measures with the patient’s risk for, or history of, opioid abuse. Some providers are exploring the use of regional anesthesia, in which nerve blocks are implemented to delivery non-opioid, long-acting numbing medication directly to nerves affected by certain surgical procedures in the days immediately following surgery. Anesthesiologists implementing these techniques in orthopedic surgeries have reported shorter hospital stays as the patients are able to move around sooner following surgery. Providers have also had success limiting the need for post-surgical opioids by utilizing doses of IV acetaminophen or ibuprofen on the day of surgery. The American Association…       Read More

Written by Beth W. Kanik, Esq. In 1999, Dr. Abraham Verghese wrote of his relationship with a physician who succumbed to his drug addiction in spite of all efforts to help in “The Tennis Partner”. Then, it was thought that a physician addicted to drugs was an anomaly. Nearly 20 years later, published studies have shown that each year, more than 160,000 health care providers will misuse the drugs that they have access to. Easy access to controlled substances not only puts the individual provider at risk, but also brings risk to their patients. Just as this nation’s leaders were slow to recognize the opioid crisis enveloping the nation, courts and medical societies have been slow in protecting the patients from their own medical providers. One way medical societies and boards tried to address physician mis-use was through voluntary diversion programs. Based on widely accepted estimates of substance abuse among…       Read More