A Hospital and Physician Share Liability for Prescribing Opioids

ISSUE OF THE CASE

When a physician who is an employee of a hospital prescribes opioids at a level and period of time that leads to addiction in the patient, will a verdict against both the institution and the prescriber and a multimillion-dollar jury award be affirmed on appeal?

FACTS OF THE CASE

A male patient was suffering from back pain and consulted a physician who was a family practitioner at a private university hospital in a metropolitan area in the Midwest. Starting in 2008, the physician prescribed at various times hydrocodone, increasing the amount to be used over time, followed by oxycodone and morphine. During several visits, the patient told the prescriber that he had increased the amount he was consuming on his own. The patient’s primary care physician had referred the patient to a few specialists, but nothing they did relieved his pain.

Early in the treatment, the opioids allowed the patient to go to work, but eventually they interfered with his work. Indeed, they interfered with his ability to work more than the pain had. Use of the medications also started interfering with his family relationships.

In 2012, a pharmacist declined to dispense more medication, and the patient’s wife had her husband admitted to a rehabilitation program. The couple subsequently filed a lawsuit against the primary care physician and the university hospital where the prescriber was employed. During the trial, an expert witness called by the patient plaintiff characterized the dosages of medications prescribed as “astronomical,” “colossal,” “excessive,” “extraordinary,” and “reckless.”

Before the jury deliberated, the judge instructed the members that they could attribute a percentage of fault to the hospital and physician defendants if they felt that the defendants had “either (a) failed to weigh the risks and benefits of prescribing opioids to him, (b) overprescribed opioids to him, (c) failed to monitor the patient’s opioid treatment, or (d) failed to assess him for dependency and addiction.”

The jury returned a verdict in favor of the patient plaintiff for compensatory damages, an amount calculated to compensate the injured party for the damages suffered. The jury attributed 67% of the fault to the hospital and physician defendants and 33% to the patient. The amount of compensatory damages awarded was $938,000 to the patient and $804,000 to his wife. The jury also awarded punitive damages, ie, those calculated to serve as a penalty for the defendants and not to compensate the plaintiff for injuries suffered, in the amount of $15 million. Importantly, note that an amount awarded as punitive damages cannot be covered by an enterprise’s or individual’s liability insurance policy. That would be against public policy because it would allow the insured to raise the insurance policy as a shield to protect against the punishment assessed by the court.

Both the hospital and the physician filed an appeal, advancing several arguments to support their request that the jury’s verdict and the lower court’s judgment be overturned. They did not dispute, however, that the hospital could possibly be liable for the acts of its employee, the prescriber.

THE COURT’S RULING

The state court of appeals addressed each of the defendants’ arguments in turn, accepting none of them. The judgment of the trial court was affirmed on appeal.

THE COURT’S REASONING

The first point advanced by the defendants was that their position had been prejudiced by repeated referral during the trial to the “opioid epidemic” in the United States. They felt that such references led the jury to believe that the defendants should be held accountable in some way through this proceeding for this national situation. The appellate court noted, however, that expert witnesses called by the defendants also referred to the “opioid crisis” and the “opioid epidemic.”

The appellants also argued that several errors had occurred while prospective jurors were being interviewed during the process known as voir dire. Those arguments were rejected as well.

Other arguments centered on whether certain statements made by expert witnesses during the trial should have been excluded by the trial court judge and whether the judge’s instructions to the jury about punitive damages being possible were indeed correct. The court rejected the first argument, and regarding punitive damages, the appellate judges pointed to a state statute that authorized such an award when a health care provider demonstrated “willful, wanton or malicious misconduct.”

The court of appeals concluded that the decision to prescribe these amounts of opioids for this length of time was done in conscious disregard of, and with complete indifference to, the patient’s safety and the safety of others. They found the action to be “tantamount to intentional wrongdoing.”

Joseph L. Fink III, BSPharm, JH, DSc (Hon.), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.