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A Comprehensive Guide For Defending Opioid Claims

Written by: Jill Bechtold, EsqJacquelyn S. Clarke, Esq.John E. Hall, Jr., Esq.Stephanie R. McDonald, EsqJacob Raehn, Esq.; and Annalese Reese, Esq.

Introduction

The opioid epidemic in the United States rages on, and the legal battles are just beginning to heat up. Individuals and state governments are bringing claims against manufacturers, distributors, large drugstore chains, and individual prescribers. At least twenty-five states, cities and counties have filed opioid-related actions in the past year, not to mention the hundreds if not thousands of people who are suing healthcare providers for prescribing these highly addictive painkillers.1) Litigation against the nearly $13 billion a year opioid industry closely mirrors the strategy used in the 1990s to combat big tobacco.2)With litigation on the rise, it is imperative that the defense bar prepare for the long road ahead by taking a close look at the new state prescriber laws as well as the statistics regarding opioid addiction and overdose.
“Drug poisoning deaths are currently at their highest ever recorded level, and every year since 2009, drug poisoning deaths have outnumbered deaths by firearms, motor vehicle crashes, suicide, and homicide.” In 2014, approximately 129 people died every day as a result of drug poisoning. In addition to the physical burden the opioid epidemic has caused for individuals and their families, the financial burden has been similarly crippling. In 2014 alone, almost 1.3 million people in the United States required hospital care for opioid-related issues. The rate of opioid-related inpatient stays in 2014 was highest among patients ages twenty-five to forty-four. Patients ages sixty-five and older accounted for the second highest number of opioid-related hospital stays. For these reasons, federal grants for enforcement of opioid related prosecution have increased exponentially.
This comprehensive guide will focus on the rapidly expanding law regarding opioid overdose and misuse, and how the defense bar can provide an aggressive, strategic defense, based on available information and procedural maneuvers. The purpose of this guide is to invigorate and arm the defense bar with techniques and tools to defend medical malpractice actions arising out of a opioid prescription, addiction, and overdose. Part one will examine the impetus behind the opioid epidemic and the devastating effect it has had on the country. In part two, we will delve into the four elements required to bring a medical malpractice claim—duty, breach, causation, and damages. We will analyze each of those elements as they relate to a claim brought against a physician who has prescribed narcotics to a patient. Next, part three will take a closer look at the tactics plaintiffs’ counsel will use to derail the defense and sway the jury. Finally, part four will outline a number of technical strategies that defense counsel should use to vigorously defend our clients.

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