Legal Background

The case went to trial. At trial, the parties stipulated that in 2008 Mr K was taking an average daily dosage of 49 morphine milligram equivalents (MME). In 2009 it was up to 208 MME and by 2010 it had reached 545 MME. By 2012, Mr K was prescribed on average 1555 MME – almost 40 opioid pills per day between 3 prescriptions.

Plaintiff’s experts testified and described these doses as “excessive,” “colossal,” “reckless,” “extraordinary,” and “astronomical.” The experts faulted Dr W – saying there was no legitimate medical purpose to prescribe opioids in these amounts for this length of time. The plaintiff’s experts also pointed out that Dr W failed to conduct a risk and benefit assessment that would meet the standard of care, nor did he have any system in place to adequately monitor Mr K’s use of opioids. During the experts’ testimony, there were several mentions of a “nationwide opioid epidemic.”

At the end of the trial, the jury found Dr W liable, and awarded Mr K $900,000 in damages and $15 million in punitive damages. Dr W immediately appealed, arguing that allowing references to an “opioid epidemic” was highly prejudicial and irrelevant and its only purpose was to mislead the jury to believe that they should hold Dr W accountable for the epidemic.

The appeals court disagreed with this argument and affirmed the judgment of the jury.  It held that the information about an opioid epidemic was relevant in this case. “All of this evidence was probative of the critical issue for finding Defendants’ conduct to be negligent, which required a determination of how their conduct compared to what others in the profession were doing under similar circumstances. It was even more probative of facts related to Plaintiffs’ request for punitive damages, which required a determination of whether Defendants knew or should have known that there was high degree of probability of injury to Mr K or others from prescribing him these unusually high amounts of opioids. Defendants’ knowledge of the existence and extent of the epidemic — the amount and rates at which people were being prescribed, becoming addicted to, overdosing on and dying from opioids prescribed by other doctors in this country — was probative of whether Defendants’ conduct rose to the level of reprehensibility contained in the punitive damages instruction.” Ultimately, the court agreed that it had.

Protecting Yourself

Use great care when prescribing opioids and explore other, less dangerous, options if possible. If you do need to prescribe opioids, it’s essential to conduct a risk assessment with the patient before prescribing anything. Risks and benefits should be continually re-assessed at an office visit each time a dosage is increased. Patients on pain management medications must be monitored regularly to assess pain levels and functioning, and to check for side effects and behaviors suggesting addiction. All of this – the risk assessments, monitoring, and discussions with patients – should be documented in the patient’s medical records.