Follow POL on Twitter Colin Hedrick
Legal Intern, Manhattan Institute's Center for Legal Policy
Should doctors and pharmaceutical companies be liable to patients who become addicted to habit-forming drugs they prescribe/manufacture? If State Sen. Tick Segerblom (D-Las Vegas) has his way, they will be. Segerblom recently introduced SB 75, which would make doctors and drug makers liable for the treatment costs of those who become addicted to legally prescribed pain medications. The bill would also open up doctors and drug makers to potential punitive damages as well.
Thankfully, this rather ridiculous idea is starting to draw national attention and if the overwhelmingly negative response at a recent senate hearing on the bill is any indication, it has little chance of passing. Doctors, drug makers and experts of all varieties lined up to speak out against this proposed law. Most are concerned that it will do little to curb addiction and will negatively impact many who have a real need for these pain medications.
From a legal perspective, this proposed law is little more than the feel-good expansion of tort law that serves no purpose other than to make the Nevada government look like it is doing something to counter drug addiction and punish those 'big bad drug companies.' In our culture of ever increasing fear over medical malpractice and endless class action suits against drug makers, this law would simply add another layer of legal mess on the already damaged relationship between the doctor and patient. Instead of relying on medical knowledge, training, and judgment, laws like this force medical practitioners to make their decisions out of fear for legal consequences.
This is to say nothing of the total abdication of personal responsibility that this law embodies. There are incredibly strict guidelines about forewarning patients of possible side effects to medication, including potential addiction. However, no matter what steps are taken there will always be a portion of patients who will form a habit. Yes, there are undoubtedly some doctors who over prescribe and enable addiction. Yes, there are likely patients who are predisposed to addiction. But in the end, a good number of those who become addicted simply don't follow the directions whether by accident or intentionally, and they must be held accountable for their own actions on some level.
This type of legislation is no way to run tort law, no way to hold doctors accountable for actual malpractice, and it is certainly no way to make sure that patients get the kind of care they actually need.
There is plenty of case law indicating physicians can be held liable for causing addiction with prescribed controlled substances.
Examples are King V. Solomon MA, (1948) 8 ALR 2d 1, Los Alamos Medical Center v. Coe, NM (1954) 50 ALR2d 1033 and Ballenger v. Crowelln NC (1978) 16 ALR4th 989.
Of course, the common law tort requires some kind of expert testimony concerning standard of care. I suppose the proposed law tries to bring a kind of strict liability standard to both physicians and drug manufacturers. That doesn't seem like a good idea. A lot of chronic pain patients are addicted. What are you going to do about it? It is just the way it is.