Can claims be brought for personal injuries or wrongful death as a result of opioid addiction?

Overdoses are the leading cause of death for Americans under 50 — they now claim more lives annually than car crashes, gun deaths and the AIDS virus did at its peak.

The opioid crisis is ravaging Massachusetts and other New England states, and the country as a whole. Many people, most of them young, are dying at a rapid rate from opioid related overdose deaths. In 2015 there were 1,687 such deaths in MA; 2,094 in 2016; and in the first 9 months of 2017, there were 932 confirmed opioid-related overdose deaths. Although 2017 saw a slight decrease in the number of opioid related deaths in MA, the number is still tragically high and not acceptable.

Are there any legal actions that can be taken by injured persons or families of those who have died as a result of opiates? For those who are wondering whether a negligence action, otherwise known as a personal injury or wrongful death action, arising out of their family member’s use of highly additive opiates may be brought, the answer is yes. A products liability claim may also be brought. Anyone considering such an action must be prepared for a vigorously contested action.

What are the claims that can be made in such a lawsuit and who are the responsible parties who could be named?

Opioids are prescription drugs designed to reduce pain. They can only be prescribed by a physician. Since they are designed to reduce pain and act on the nervous system in doing so, they are highly addictive. The most common prescription opiates are Oxycodone and Hydrocodone, Methadone, Fentanyl, codeine and morphine. Some of the common brand names of these drugs are Vicodin, OxyContin, Percocet, Hysingla, Butrans, Duragesic, Nucynta, and Opana.

If you were injured by the use of one of the above opiates, or a family member suffered an opioid related death, a products liability claim may be made against the pharmaceutical company that manufactured and/or distributed the drug, or a medical malpractice action is possible.

It is not an easy legal argument to make as prescription opiates serve a useful purpose. Opioid pharmaceuticals have legitimate and beneficial uses – many people suffer from chronic pain and need them to live normal lives which are pain free and productive. Many users of these drugs do just that. That is why opiate litigation is different from say, tobacco litigation, wherein the tobacco companies have paid enormous amounts to settle claims in recent years. There is no useful purpose or medical reason to use tobacco, unlike opiates.

In recent years however, the researchers and medical experts – the pharmaceutical companies – that doctors rely on began telling them they were under-treating pain, and that chronic use of opiates was an effective treatment. In turn, doctors began prescribing more pain medications, and stronger ones. Those people advocating such use were working for the drug companies.

A claim can be made for civil fraud or misrepresentation. It would have to be shown that the company misrepresented the dangers of prescription painkillers and ignored the known health risks of opioid use and their addictive properties.

A products liability claim can also be made. It would have to be shown that the prescribed opiate was unreasonably dangerous and defective when used as directed and as designed. Therein lies the difficulty. When opiates are used as prescribed and in limited doses, when they are used as directed, they are helpful to the patient and reduce pain.

The weak spot for the pharmaceutical companies is the reckless way they marketed, promoted, advertised and distributed the opiates.

A medical malpractice claim can also be made against a physician who has overprescribed opioids and ignored red flags. It would have to be shown that the health care professional deviated from the accepted standard of medical care by improperly prescribing opioids to a person who does not need them or with a history of addiction issues, or when there is a safer, non- addictive treatment available. Opiates may have been prescribed for a condition that did not warrant them, or overprescribed over a lengthy period when a limited dose for a short period would have been more appropriate.