People who are recovering from surgery or very painful injuries are often prescribed narcotic or opioid pain medications. These medications are very effective in reducing pain, but can have an unfortunate side effect of getting the patient addicted. In this article, we'll discuss whether a patient's addiction to medication might give rise to a viable medical malpractice lawsuit.
Most narcotic pain medications are made from opium, which is the natural ingredient in heroin, which is of course extremely addictive. The main natural narcotic pain medications are morphine and codeine, and the major synthetic opioids are Dilaudid, Percocet, Vicodin, and OxyContin (oxycodone).
The problem with addiction is that a patient who is addicted can’t stop taking the medication. Many people can, with help, break an addiction to pain medication, but some can’t break the addiction on their own.
A recent review of medical studies showed that addiction to narcotic pain medications exists, but is not too common. On average, only about 4.5% of patients using narcotic pain relievers developed an addiction to narcotic pain medications. Nevertheless, a 4.5% chance is not insignificant, and, if a patient gets addicted to a narcotic pain medication, whose fault is that? Is it the doctor’s fault? The patient’s fault? No one’s fault? It is medical malpractice? In order to answer those questions, we need to take a look at what medical malpractice is.
Medical malpractice can be caused by various actions or inactions on the part of health care providers, but the main cause of medical malpractice always boils down to negligence.
In medical malpractice cases, courts often define medical negligence as a health care provider’s failure to exercise the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the advances in the profession and resources available to the provider.
So, in order to determine if a patient’s addiction to pain medications constitutes medical malpractice, you have to prove that the patient’s doctor was negligent (i.e., he/she did not act reasonably in treating the patient).
In order to prove that a physician was negligent in any medical malpractice case, your lawyer has to obtain all of your medical records relating to the treatment in question and will almost always have to hire a medical expert witness to review your medical records and provide an opinion as to whether the doctor was negligent.
A qualified medical expert is a physician who is generally in the same field as the potential defendant in the lawsuit. Unless the doctor’s malpractice was blatantly obvious, like operating on the wrong part of the body, you cannot win - or even get to trial - on a medical malpractice case without expert testimony.
In order to prove that a physician was negligent in a pain medication addiction claim, your medical expert witness will consider:
1. your medical history
2. your diagnoses
3. your complaints
4. your doctor’s objective medical findings
5. your doctor’s experience in treating your condition, and
6. what the medical textbooks and medical literature say on how to treat your condition, among other things.
Let’s look at a couple of examples to better understand the key legal issues here:
Let’s say that a patient had a minor back injury such as a lumbar (low back) strain, and that the patient’s physician prescribed him/her OxyContin (oxycodone). Let’s also say that, ten years earlier, the patient had beaten a heroin addiction and told the doctor about it. You probably don’t need to look at a medical textbook to figure out that prescribing OxyContin to someone who had previously been addicted to narcotics is a bad decision. Further, a lumbar strain is hardly a serious or painful injury. It’s pretty clear that this doctor would be negligent for giving this patient narcotics, and could successfully be sued for medical malpractice.
However, if the patient hadn’t disclosed his/her previous heroin use, then that might be a factor that would exonerate the doctor.
Let’s look at a harder example. Let’s say that the patient suffered a painful herniated disk and had surgery for it, but that the pain never got better. Every day, the patient is suffering serious pain. The patient’s orthopedist gave the patient a prescription for Percocet, but, five years later, the patient is still taking the narcotics, is addicted to them, and still has severe pain. The patient has tried several times to break the addiction and take non-narcotic pain medications, but has not been able to break the addiction. Is this malpractice?
In this case, the medical textbooks might suggest that, if an orthopedist has been unable to cure or reduce a patient’s pain after several years, the orthopedist should refer the patient to a pain management specialist. A pain management specialist is a physician who specializes in treating severe, permanent pain without the use of narcotic pain medications. They also help the patient break an addiction to narcotics. If, in this case, a medical expert hired by your lawyer is willing to give an opinion that the orthopedist’s failure to refer the patient to a pain management specialist is negligent, then this patient might have a malpractice case against the orthopedist for continuing to treat the patient with narcotics.
These types of cases are very difficult to analyze. If you suspect you may have such a case, find a medical malpractice lawyer and schedule a consultation to discuss the details. Often, a thirty minute discussion with an experienced attorney can help you surface the key legal and financial considerations, and steer you toward your possible options. You should be able to schedule time with a few qualified attorneys at no cost.