$15,000,000 Punitive Damages Award Shows True Risk of Opioid Litigation

Written by: Jeffery R. Saxby, Esq.

A St. Louis (MO) jury recently spotlighted the considerable danger associated with opioid injury or death litigation – a jury’s potential imposition of exorbitant punitive damage awards as an effort to cure a perceived social ill.  Healthcare providers and medical facilities must institute and follow specific practices and procedures in an effort to protect and insulate themselves from the threat of runaway juries assessing ridiculously high compensatory and punitive damage awards.

Fertile Ground for Liability

Let’s face facts, the opioid epidemic has caught physicians and medical facilities unprepared.  Due to a lack of preparedness and training, physicians who have prescribed opioids for pain management are facing liability both for prescribing too much as well as too little.  The new wave of opioid related litigation not only arises from physical injuries or death associated with the use of opioids, but is increasingly arising from reported opioid and heroin addiction triggered by the medically prescribed use of opioids.  Juries are awarding millions of dollars in damages in cases where there are no per se physical injuries, but perceived psychological and emotional injuries caused by drug dependence and/or addition.

The St. Louis Litigation and What It Shows

In as little as three (3) hours, a St. Louis jury deliberated and found that a physician overprescribed opioids and caused his patient’s drug addiction. The jury implicitly found that the physician prescribing 40,000 pain pills (i.e., ever-increasing dosages of opioids such as OxyContin, Oxycodone, and Vicodin) between 2008 and 2012 exceeded the Center for Disease Control’s (CDC) safety guidelines for the daily dose of morphine-equivalent opioids by no less than 1,000%. After a seven (7) day trial, the jury returned a verdict awarding the patient $1,400,000 in compensatory damages, awarding his wife $1,200,000 for loss of consortium, and imposing a $15,000,000 punitive damages award against the prescribing physician.

Brian Koon was an HVAC maintenance worker who complained of lower back pain.  Between 2008 and 2012, Koon alleged he became addicted to prescription painkillers which were prescribed to him by his primary care physician, Henry D. Walden. Koon claimed he had to enter a drug rehabilitation program for opioid addiction and that his addiction destroyed his health, his relationships with family and friends, and caused clinical depression.  Koon claimed he and his wife are divorcing as a result of the consequences of his addiction and claimed he was in a zombie-like state most of the period of his prescription drug addiction.

Koon sued Walden and his employer (St. Louis University) for medical malpractice. Koon showed that his opioid dosage increased from an equivalent of 49 milligrams up to 1,555 milligrams every day, but CDC guidelines stated that the safe average daily dose of morphine-equivalent opioids should not exceed 100 milligrams per day. In certain instances, Koon was taking OxyContin, Oxycodone, and Vicodin simultaneously as prescribed by Walden and allegedly took up to fifty (50) pills per day.  Koon’s continual complaints of pain was Walden’s reported reason for continually prescribing the increasing dosages of opioids.

At trial, Koon’s medical expert (Dr. Paul Genecin, director of Yale Health) called the doses prescribed by Walden “colossal and reckless.” One of the key pieces of evidence in the case was a letter written to the Federal Drug Administration in 2012 by the Physicians for Responsible Opioid Prescribing. The letter was signed by Dr. Erik Gunderson, one of the defense’s expert witnesses, and provided (in part):

“Unfortunately, many clinicians are under the false impression that chronic opioid therapy is an evidence-based treatment for chronic non-cancer pain and that dose-related toxicities can be avoided by slow upward titration. These misperceptions lead to over-prescribing and high dose prescribing.”

Koon’s counsel noted that the country is currently in the grip of an opioid epidemic due to physicians over-prescribing the drugs and asserted that punitive damages were warranted to send a national message “this is not going to happen anymore.” While both the base award and punitive damages awards will certainly be appealed, the jury’s verdict demonstrates the public perception that (i) opioids have been dangerously overprescribed in the U.S. medical system for almost a decade, (ii) opioid usage should be monitored more carefully by doctors who prescribe the pills for simple maladies such as back pain, and (iii) (despite assertions of patient personal responsibility, etc.) physicians and other medical providers can be held liable for perceived overprescribing of opioids.

The Takeaway and The HBS Opioid Defense Task Force

At Hall Booth Smith, PC, we recognize the unique threats posed by the opioid epidemic, and we are prepared to help healthcare providers deter and defend against opioid-related malpractice claims. As the foregoing case illustrates, of paramount importance to physicians and medical facilities who prescribe opioids is the need to have effective standards and procedures in place as to types and amounts of medications prescribed as well as patient monitoring.  The establishment of effective and adhered to practices serve to both protect patient safety and help in the defense of physicians and medical facilities when a patient suffers a bad outcome purportedly related to use of opioids.

Don’t wait until you are sued to evaluate your opioid practices and procedures. Instead, contact a member of our task force so that we can work together to ensure that your practice is well-positioned to defend these types of claims.