Suing a doctor for prescribing too much medicationWhat if you received a serious injury in an auto accident and your doctor prescribed pain medication to which you quickly became addicted? Can you sue your doctor for medical malpractice? In West Virginia you can. In May 2015, the West Virginia Supreme Court, in a 3-2 decision, rules that those who are addicted to narcotics may sue their doctor and pharmacist for enabling or facilitating their addiction.

The lawsuit was brought by 29 patients of a pain center who had been given narcotics to treat injuries and became addicted. The lawsuit, Tug Valley Pharmacy et al. v. All Plaintiffs, alleges that their doctors and pharmacists negligently prescribed and dispensed controlled substances causing the respondents to become addicted and abuse the controlled substances. The doctors and pharmacists were under investigation for violating rules for prescribing and dispensing controlled substances, and some of them admitted to violating those rules in criminal court pleas.

In response to the ruling, the West Virginia Medical Association released a statement claiming:

[A lawsuit] may cause some physicians to curb or stop treating pain altogether for fear of retribution should treatment lead to patient addiction and/or criminal behavior. It may create additional barriers for patients seeking treatment for legitimate chronic pain due to reduced access to physician. It would allow criminals to potentially profit for their wrongful conduct by taking doctors and pharmacists to court.”

The ruling makes juries responsible for determining whether the doctor bears the responsibility for the patient’s addiction. Although the patients could bear part of the responsibility for their addiction, especially when they engaged in the illegal practice of “doctor shopping” in order to keep getting pain medication, they may still take legal action and win compensation from the defendants. West Virginia civil law recognizes comparative fault, which means that a defendant will be liable for the percentage of the plaintiff’s damages that can be attributed to the defendant’s actions. The plaintiff, however, will be barred from recovering damages if they can be found to be more than 50 percent at fault. When the plaintiff bears less than 50 percent of the fault for the injury, whatever they will be able to recover will be reduced by the portion of fault assigned to them.

Prescription drug abuse, which is costing many people their lives, is rampant in West Virginia. The people who are addicted to painkillers get the pills by doctor shopping. In an effort to curb the practice of doctor-shopping, the West Virginia legislature has authorized an updated rule pertaining to the WV Board of Pharmacy’s Controlled Substance Monitoring Program (CSMP). The CSMP is a database that tracks medical records of patients who have been prescribed Schedule II, II, or IV controlled substances in the state of WV. The new rule requires doctors to check the CSMP database first before they can accept the patient into their practice or provide treatment.

Had the doctors and pharmacists been consulting the CSMP prior to prescribing and dispensing the highly addictive painkillers, the situation that led to the WV Supreme Court decision might not have even come about.

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