Preventing Physician Liability for Opioid Prescribing in the Wake of Potentially Damaging New Legal Precedent

A recent development in lawsuits brought by two Ohio counties against major pharmacy chains for their role in the opioid epidemic has generated a potential source of liability for prescribing physicians. In early January, the pharmacy chains added unnamed Ohio physicians as third-party defendants in the lawsuits. This development introduces the argument that the physicians are ultimately responsible for the prescriptions and should be required to pay all or part of the judgment in the event that the pharmacies are found liable.

If the tactic to include physicians in lawsuits again pharmaceutical companies is successful, doctors and healthcare professionals across the country may find themselves being added to many of the hundreds of opioid-related cases currently winding their way through the legal system.

Multidistrict Opioid Litigation Background

Cities, counties, Native American tribes, and other groups have filed more than 2,500 federal lawsuits against pharmaceutical manufacturers, distributors, and retailers in response to the opioid epidemic. These cases have been consolidated into a “multidistrict litigation” before a U.S. District Court in Cleveland, Ohio.

While settlement talks continue, two of these lawsuits, by Cuyahoga county and Summit county (both located in northeast Ohio), were selected to serve as “bellwether” cases. In essence, this means these suits would serve as a test case, so the plaintiffs and defendants to the other lawsuits can evaluate how they might fare if their lawsuits go to trial instead of settling.

Cuyahoga and Summit counties reached a last-minute settlement agreement with the pharmaceutical distributors before that case was tried. To date, however, no settlement agreement has been reached with the pharmacy chains, including CVS Pharmacy, Walgreens, Walmart, and Rite Aid. The trial against these defendants is set to begin on November 9, 2020.

The Claim by the Major Pharmacy Chains

Calling the lawsuits against them by Cuyahoga and Summit counties “a misguided hunt for deep pockets,” the pharmacy chains argue that the unnamed physicians should be held liable because they are the licensed healthcare professionals who wrote the prescriptions for the opioid medications dispensed by the pharmacy chains’ pharmacists.

The pharmacy chains emphasize that pharmacists are almost always bound to respect a prescribing doctor’s professional medical judgment about which medications are appropriate to treat a patient. Simultaneously, the pharmacy chains downplay the pharmacists’ corresponding responsibility to ensure that prescriptions are legitimate, and drugs are not being diverted, as outlined by DEA regulations.

The pharmacy chains are also attempting to sidestep the counties’ argument that major pharmacy chains were in a better position than individual doctors to know that an excessive volume of opioid medications were being filled in the counties.

What Does This Mean for Physicians?

Physician liability for opioid prescribing habits is not an entirely new occurrence. Most notably, physicians who have engaged in particularly egregious prescribing activities have already faced criminal charges in many jurisdictions. Experts also have speculated that plaintiffs’ attorneys will target physicians after the lawsuits against the pharmaceutical manufacturers, distributors, and retailers are resolved.

However, the naming of the John and Jane Doe physicians in this civil litigation opens up a new potential source of liability for physicians around the country if these claims prevail. Even if a physician’s prescribing habits are appropriate, the physician still may find that they need to spend time and money justifying the acceptability of their prescriptions to avoid liability.

Physicians and physician practices should make sure that they are following best practices for opioid prescribing and taking other actions to protect against potential ongoing liability. At Curi, we suggest taking the following precautions:

• Review prescribing “best practices” guidelines. Medical societies and the government have published prescribing “best practices” relating to the use of opioids, including recent guidance on pain management best practices and appropriate dosage reduction strategies. Physicians should review this clinical guidance and confirm that their opioid prescribing practices meet the most current applicable standard of care.
• Confirm compliance with state and federal prescribing requirements. Federal and State governments have also implemented specific legal requirements that must be followed for prescribing opioids. These requirements may include limits on the duration of an initial opioid prescription for acute pain, requiring that physicians check prescription drug monitoring program (PDMP) databases before writing opioid prescriptions, and mandating the use of e-prescribing. Physicians and their practices should confirm that they are in compliance with all applicable requirements, reviewing information from their state medical board for specific details.
• Check the Open Payments Database. The Open Payments database contains information on payments made by medical device and pharmaceutical companies, including opioid manufacturers, to physicians. Physicians should review the information contained in the database to confirm its accuracy and to compare the value of the payments they have received to the amounts received by their peers. Physicians receiving significant payments from opioid manufacturers should review their opioid prescribing practices and confirm that they are appropriate. As a reminder, Curi members may easily access personalized open payments reports through the Venops platform.
• Do not engage with claimants. If anyone contacts you about a claim or suit related to opioid litigation, whether on behalf of a private company or a governmental organization, do not attempt to respond to the correspondence yourself. Instead, notify your medical malpractice carrier immediately and let them determine what, if any, response should occur.

We also encourage physicians and their practices to continue to check our News & Knowledge content for updates on opioid litigation and information about the opioid epidemic, including the status of the unnamed physician defendants. Members with specific questions can reach out for additional assistance by emailing sam.cohen@curi.com.