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Experts urge workers compensation payers to take steps to avoid overprescribing or doctor shopping following a state Supreme Court's decision allowing patients to sue physicians and pharmacies for contributing to their addiction to opioids.
Nearly 30 people filed eight civil actions in Mingo County, West Virginia, Circuit Court between 2010 and 2012 that alleged a medical center, three physicians and four medical centers “negligently prescribed and dispensed” drugs that led them to abuse and become addicted to opioids, court records show.
Most were prescribed Lortab, Oxycontin and Xanax for injuries caused by automobile or workplace accidents. Most also admitted “their abuse of controlled substances predated their treatment,” and they engaged in “illegal activities associated with the prescription and dispensation of controlled substances,” according to the West Virginia high court's May 13 split decision.
While the medical center, physicians and pharmacies sought to invoke the wrongful conduct rule, which says a person can't sue “when his or her unlawful conduct or immoral act caused or contributed to the injuries,” the state Supreme Court of Appeals rejected the idea.
Faced with the “Hobson's choice” of whether to “deter the immoral plaintiff or the tortuous — or perhaps egregiously so — defendant,” the majority chose not to invoke the wrongful conduct rule, which has been adopted in more than 10 other jurisdictions, including Florida, Iowa and Michigan, according to court records.
The state's high court allowed the plaintiffs to sue the physicians and facilities and returned the case to the lower court.
“It's a slippery slope,” said Phil Walls, chief clinical and compliance officer at Tampa, Florida-based pharmacy benefit manager myMatrixx, the marketing name of Matrix Healthcare Services Inc. Pharmacies worried about the potential liability might refuse to fill — or even stock — some opioids, which could make it difficult for injured workers who really need the drugs to get them, he said.
Workers comp payers have “direct financial harm from recurring costs and the inability to settle claims” when inappropriate prescribing or doctor shopping takes place, said Mark Pew, senior vice president of product development at Prium, a Duluth, Georgia-based medical management company.
Drug monitoring programs helpful
What payers in most states can — and should — do to curb overprescribing is to ask workers comp physicians if they're accessing prescription drug monitoring programs, experts said.
If not, “that obviously doesn't mean they are prescribing inappropriately or egregiously, but it does mean they aren't paying as close attention as they should,” Mr. Pew said. “It indicates a lack of due diligence on behalf of the physician and is an immediate red flag.”
Another way payers can prevent egregious prescribing is by requesting physician profiling reports and other data from their pharmacy benefit managers, experts said.
Only a small number of physicians and pharmacies actually engage in inappropriate or egregious prescribing and dispensing, Mr. Walls said.
An FBI raid eventually led some of the West Virginia physicians to lose their medical licenses and serve prison time, while one pharmacy and its pharmacist were “subject to disciplinary and/or criminal action,” according to records.
People underestimate the dangers related to the use of opioid painkillers, a National Safety Council study released Wednesday finds, and the council's medical adviser urged employers to fill in the knowledge gap.