The question of who should bear liability in drug litigation is a current concern because numerous lawsuits regarding the abuse of pain medication, such as vicodin, percocet, and oxycontin, have led to a sharp increase in premiums for medical malpractice liability insurance. Most drug litigation poses extremely higher risks for the physicians than for drug manufacturers which can absorb the costs of these lawsuits.1 From these malpractice claims, a physician can have his or her reputation permanently impaired and even lose insurance coverage.2 The threat of this type of liability also affects the physician’s treatment as he or she may become more cautious in treating and prescribing medication for other patients.3
These malpractice claims may arise in various ways. A typical fact pattern from most drug litigation is as follows: Patient X receives a legitimate prescription of pain medication from Dr. A. The prescription is instantly proven effective as Patient X’s pain dissipates. Both Patient X and Dr. A are in optimal positions at this point as Dr. A has successfully treated Patient X’s pain. However, Patient X’s pain subsequently begins to flare, and he or she takes twice the dosage Dr. A has instructed and has now become addicted to these pain killers. On a follow-up appointment, Patient X knowingly deceives Dr. A as to the extent of pain suffered, so Dr. A prescribes more medication to alleviate the pain. Patient X willfully takes more medication and becomes addicted even further to the pain killers. With this addiction, it is typical that Patient X may display criminal tendencies in order to satisfy the addiction. Patient X now suffers job loss and irreparable harm due to an addiction to pain medication that Dr. A has prescribed. Patient X brings a suit against Dr. A stating in the cause of action that Dr. A was negligent in prescribing the medication, failed to observe the signs of addiction, breached a duty to prevent this foreseeable harm, and proximately caused the resulting damages.
Many medical malpractice claims regarding prescription medication plead these similar facts which leads to the problem at hand: Should courts allow these malpractice claims to be successful when the patients act in a willful and wanton manner in abusing prescription medication by holding physicians to a much higher standard?
II. Duty and Standard of Care for Physicians in Prescribing Controlled Substances
Since physicians are held to a standard of the reasonably prudent physician, an examination into the duty and standard of care in prescribing pain medication is required. In many jurisdictions, it is the physician’s duty to warn the patient of negative aspects of the medication that is required for the treatment.4 This duty is placed upon the physician because the physician also has the duties in prescribing pain medication to patients: to be fully aware of (1) the characteristics of the drug prescribed, (2) the amount of the drug which can be safely administered, (3) the different medications the patient is taking, (4) to be familiar with the patient’s medical history and current condition, (5) to warn the patient of any risks or side effects, (6) to prescribe the drug or medicine in the proper dosage and duration along with clear instructions, and (7) to monitor the patient during the course of treatment.5
Addiction is a main issue in medical malpractice claims for the overprescription of pain medication so it must also be dissected. One of the duties physicians must abide by in prescribing controlled substances is being fully aware of the characteristics of the drug.6 Several criteria have been set forth in the medical community to aid physicians and other medical practitioners to identify addiction in their patients. Addictive behaviors include: (1) repeat dose escalations beyond the prescribed parameters; (2) visiting multiple providers and acquiring opioids from multiple providers and/or pharmacies; (3) deteriorating work, family, and social interactions; (4) medication hoarding; (5) forging prescriptions; and (6) selling or buying prescription medication from unauthorized/illegal sources.7
III. Lowering the Bar for Raising Contributory and Comparative Negligence
While patients rely on a physician’s superior knowledge regarding medical treatment and heightened duties, a physician must also rely heavily on the patient. Most physician-patient relationships involve an outpatient status of the patient,8 especially in circumstances involving a physician prescribing pain medication. Unless a patient is terminally ill, physicians usually are prescribing pain medication to patients who visit periodically. Physicians who lack thorough, ongoing relationships with their patients are not in the best position to detect symptoms or threatening side effects.9 As noted earlier, it is set out in the physician’s standard of care that the patient must be fully informed of potential risks, side effects, and adverse reactions to medication.10
However, since the physician most likely is not engaging in round-the-clock surveillance, it is very unlikely that the physician will be present when symptoms arise.11 Thus, a patient who is informed of the risks and possible adverse reactions from any medical treatment is in the best position to recognize threatening side effects before it fully develops and causes serious injury.12 In prescription drug therapy, the patient must be treated as a co-participant since he or she is in a better position and has a duty to detect symptoms and adverse reactions to pain medication.13 Patients are responsible for the significance of symptoms, measuring and recording symptoms, and reporting these symptoms to their physician.14 Therefore, a patient may be "contributorily negligent in failing to inform the physician of suspicious symptoms which develop after taking a prescription drug or medicine."15
Some patients take their contributory negligence one step further by withholding information or failing to detect symptoms by intentionally falsifying their pain or condition.16 "In pain management, only the patient knows the true extent of the pain, and there is little a physician can do to objectively authenticate it."17 The physician cannot observe the pain unless an open wound or some other form of physical injury accompanies it.18 For the most part, pain is a feeling measured subjectively, and the physician must rely on the patient’s account of this pain in order to effectively treat it.19 This reliance on the patient’s self report of pain suffered or experienced gives the patient the opportunity to not be truthful with the physician for the purpose of obtaining prescription pain medication.20
The defense of contributory negligence may also be raised when a patient fails to follow a physician’s specific instructions or even a specific warning regarding the use of a prescription medication.21 To establish this form of contributory negligence, the physician must prove beyond a preponderance of the evidence that the patient’s conduct of failing to follow instructions was a substantial factor in proximately causing the injury.22 A physician only needs to provide instructions during an examination and have instructions listed on the medication in order for there to be sufficient direction provided to the patient.23 This defense also requires proof that the patient’s contributory negligence occurred simultaneously and in cooperation with the physician’s negligent conduct.24 The patient’s conduct does not necessarily have to occur simultaneously with the physician’s conduct as it is possible that the injury may not occur immediately following the physician’s negligence.25 Therefore, the failure of a patient to follow instructions regarding the use of prescription medication has been found by the courts sufficient to establish contributory negligence.26
While society places a high burden on a physician’s superior knowledge in determining the amount of contribution towards the injury,27 there are various policy reasons asserting that the patient must not be overlooked. There are certain risks associated with prescription medication that are relatively known by the reasonably prudent patient that a failure to act to avoid these risks will render them contributorily negligent.28 "The danger of taking drugs or medicines in excessive quantities is also well known by most people. A patient who recklessly or deliberately ingests a large quantity of a prescription drug or medicine may be contributorily negligent."29 Another policy reason to examine the patient’s conduct is society’s desire to preserve personal safety. A person must use a standard of care for personal safety that a reasonable person would use under similar circumstances.30 Intentionally exposing oneself to harm fails to meet this standard.31 Those who know they are harming themselves deviate from the degree of care that a reasonable person would use to protect himself/herself under similar circumstances.32
Finally, "a patient who suffers from drug addiction usually will have impaired judgment regarding abuse."33 However, courts have frequently held that the standard of care for someone whose judgment is voluntarily or intentionally impaired should not be lowered.34 "Voluntary intoxication is not generally an excuse for failing to act as a reasonable person."35 Negligent conduct is not excused by impairment of one’s own mental ability done willingly.36 Strong policy reasons encourage that people "take extreme care when choosing whether to impair their judgment, and absolving them of liability after the fact, would undermine that policy."37 In using prescription medication or pain killers illegally or illicitly, "people should be sanctioned for that choice rather than be rewarded by allowing them to escape liability for their tortious acts."38 Therefore, for strong policy implications, the addicted patient who obtains prescription medication through falsifying the severity of pain and/or symptoms, failing to disclose their addiction, and failing to follow the specific instructions so they may enhance their addiction should be considered a wrongdoer and contributorily negligent.39
IV. Patient’s Willful and Wanton Conduct as an Intervening and Superseding Cause
To determine if the patient’s willful and wanton conduct is an intervening cause, the conduct must be causally related to the injury involved, cannot be an act by the physician, must occur after the physician’s negligent act, and cannot be an act by the patient, unless it is an extreme act.40 A patient who intentionally overdoses on prescription medication, falsifies symptoms and ingests pain medication when it is not needed, or even fails to report addictive symptoms or behaviors has conducted him or herself in a way that can be causally related to the injury. This conduct is also one that is not performed or created by the physician and occurred after the physician’s negligent act of overprescribing the pain medication. The difficult prong of the test is to prove that the patient’s conduct was an extreme act so it will fall under the exception that the plaintiff can create an intervening cause.
Drug addiction is often considered a self-inflicted condition since it stems from a choice to engage in this activity.41 The law generally imposes no duty upon an individual to protect another person from self-inflicted harm in the absence of a "special relationship," which amounts to custody and control.42 While a physician-patient relationship is sometimes construed to be a special relationship, it is usually in the context of a detained, inpatient individual.43 As noted earlier, typical circumstances regarding the prescription of controlled substances involves an outpatient status.44 Since the physician does not have the ability to provide complete, daily surveillance of the patient,45 a special relationship should not be deemed to be formed to protect self-inflicted injury as the patient is not permanently detained by the physician so that the physician might be able to prevent such injury.46 Thus, a physician’s duty is minimized in finding that the patient has outpatient status since physicians have minimal and insufficient control over a voluntary outpatient.47 A special relationship to prevent self-inflicted harm does not exist since the physician does not have complete control of the patient’s activities and actions.48
Extreme acts by the plaintiff that have been held to be intervening causes include acts of suicide.49 Courts have held that it was not foreseeable that patients would deliberately and intentionally inflict harm on themselves.50 Drug addiction is considered a self-inflicted condition as well.51 If suicide can be considered to be an intervening act, intentionally enhancing one’s drug addiction should be considered an intervening act also since both acts result in self-inflicted injury.52 Suicide directly leads to death, but enhancing a drug addiction or voluntarily ingesting an overdose of pain killers may lead to death as well. Thus, the patient’s conduct in many of these situations should be considered an intervening act since the conduct is an extreme one of intentional, self-inflicted harm.
Once the specified conduct is determined to be intervening, a final test of foreseeability must be applied to determine whether the patient’s act was superseding or not.53 Courts have abandoned the notion that culpable acts of others were unforeseeable and have moved to a more modern view that criminal or intentional acts are not superseding if they are foreseeable.54 The new, general rule is where the intervening criminal or intentional acts are foreseeable, they are not deemed to be superseding causes and liability is imposed upon the original actor.55 The historical approach did not impose liability upon the original actor where it was followed by an intentional or criminal act.56
Looking at the crucial element of foreseeability, it is difficult to determine whether or not it is foreseeable that patients would intentionally inflict harm upon themselves. In cases involving patients in a psychiatric ward, doctors are liable for a patient’s self-inflicted injuries for several reasons.57 First, it is foreseeable that a psychiatric patient may self-inflict injuries.58 Enforced through the special relationship, doctors in these instances have a higher duty to protect these patients due to the constant control exerted over the patients.59 Finally, these patients are absolved from the duty of self-care that is placed on everyone else in society and that duty is transferred to the physician through the special relationship.60
In contrast to the example of a detained psychiatric patient, a physician’s typical relationship with a patient on pain medication does not involve one of a special relationship, thereby transferring the duty of self-care.61 An outpatient does not fall under the umbrella of a special relationship that amounts to custody and control where the patient’s self-care is absolved and imposed upon the physician.62 If the duty of self-care still lies with the patient, then it is not foreseeable that a reasonably prudent patient would engage in self-destructive behavior, such as enhancing an addiction.63
In addition, with the duty of self-care still resting with the patient, the historical approach to the superseding test would be more appropriate as it accounts for intentional, criminal acts.64 Selling and abusing prescription medication is considered a criminal activity.65 Thus, a patient who partakes in illicitly obtaining prescription medication through their physician and in abusing this medication is committing a crime. As mentioned earlier, this criminal activity committed by the patient was done so willfully, wantonly, and intentionally.66 Under the Restatement (Second) of Torts § 448, the patient’s intentional and criminal conduct would be outside the foreseeable risk since this conduct could not be contemplated by the physician.67 It is difficult for a physician, or anyone, to contemplate that someone who is held to a standard and duty of self-care would engage in self-destructive behavior or would create self-inflicted injuries.68 Since the patient’s act is superseding, the physician’s act is now not the proximate cause of the patient’s injury and liability will not be transferred.
With a comparison of duties, there are several policy reasons that support a reform in raising the defense of contributory negligence. Patients should appreciate the risk of intentionally ingesting large quantities of prescription medication.69 Society also desires that personal safety is preserved, and this duty rests with the patient.70 Finally, courts do not want to reward those who voluntarily choose to impair their judgment.71 In order to prevent any recovery, the patient’s conduct is intervening and superseding. Since extreme acts by a plaintiff may constitute an intervening cause, such as suicide, one may rationalize that self-inflicted harm or self-destructive behavior is an extreme act.72 Thus, in certain jurisdictions, proximate causation will not be proved since abusing prescription medication is an intentional, criminal activity which is outside the foreseeable risk.73
1 Michael J. Farrell, Medication Malpractice: Claims, Culprits and Defenses, 16 Am. J. Trial Advoc. 65, 66-67 (1992).
3 Jacob B. Nist, Comment, Liability for Overprescription of Controlled Substances, 23 J. Legal Med. 85, 85-86 (2002).
4 White v. Weiner, 562 A.2d 378, 386 (Pa. Super. Ct. 1989).
5 White, 562 A.2d at 386; Lauren Krohn, Cause of Action Against Physician for Negligence in Prescribing Drugs or Medicines, 9 COA 1, §3 (2004).
6 White, 562 A.2d at 386; Krohn, supra note 5, at § 3.
7 Nist, Comment, supra note 3, at 96-97 (citing Nancy Kowal, What Is the Issue?: Pseudoaddiction or Undertreatment of Pain, 17 Nursing Econ. 348 (1999)).
8 Cf. Susan A. Casey, Laying an Old Doctrine to Rest: Challenging the Wisdom of the Learned Intermediary Doctrine, 19 Wm. Mitchell L. Rev. 931, 953 (1993) (discussing the outpatient status of breast implant patients and the likelihood that the lack of an ongoing relationship results in the patient being responsible for detecting symptoms and adverse reactions).
10 Id. at 959.
12 Id. at 953.
13 Gerald F. Tietz, Informed Consent in the Prescription Drug Context: The Special Case, 61 Wash. L. Rev. 367, 389 (1986).
15 Krohn, supra note 5, at § 19.
16 Nist, Comment, supra note 3, at 102.
21 Krohn, supra note 55, at § 19.
22 Kurtis A. Kemper, Annotation, Contributory Negligence or Comparative Negligence Based on Failure of Patient to Follow Instructions as Defense in Action Against Physician or Surgeon for Medical Malpractice, 84 A.L.R.5th 619, § 2 (2004).
23 See Morganstein v. House, 547 A.2d 1180 (Pa. Super. Ct. 1988).
27 Sharon W. Murphy, Contributory Negligence in Medical Malpractice: Are the Standards Changing to Reflect Society’s Growing Health Care Consumerism?, 17 U. Dayton L. Rev. 151, 151 (1991).
28 Krohn, supra note 5, at § 19.
30 Restatement (Second) of Torts § 466 (1965).
32 Restatement (Second) of Torts § 464 (1965).
33 Nist, Comment, supra note 3, at 106.
34 Davies v. Butler, 602 P.2d 605, 612-13 (Nev. 1979).
35 Nist, Comment, supra note 3, at 106.
36 Davies, 602 P.2d at 612-13.
37 Nist, Comment, supra note 3, at 106.
39 Id. at 107.
40 Restatement (Second) of Torts § 442 (1965).
41 Sonja B. Starr, Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment, 111 Yale L.J. 2321, 2334-35 (2002).
42 Restatement (Second) of Torts § 314 (1965).
43 Daniel W. Berglund, Torts: Taking the "I" Out of Suicide: The Minnesota Supreme Court’s Alarming Extension of Duty in "Exceptional Relationships"—Sandborg v. Blue Earth County, 28 Wm. Mitchell L. Rev. 1307, 1313 (2002) (discussing the heightened responsibility that arises with a detained individual).
44 Casey, supra note 8, at 953.
46 Berglund, supra note 43, at 1313 (discussing the reasoning behind a heightened duty being that a detained individual is usually not capable of protecting his well-being).
47 See Brady v. Hopper, 751 F.2d 329 (10th Cir. 1984); Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997); King v. Smith, 539 So. 2d 262 (Ala. 1989).
48 Berglund, supra note 43, at 1313 (discussing that a heightened duty to protect one’s well-being exists when an individual is of diminished capacity and is detained).
49 See generally Millet v. Treasure Chest Casino L.L.C., 788 So. 2d 713 (La. Ct. App. 2001).
51 Starr, supra note 41, at 2334-35.
52 Id.; Cf. Donaldson v. Young Women’s Christian Ass’n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995) (discussing that courts have traditionally been reluctant to impose liability on others for self-inflicted harm and that courts have recognized suicide as an intervening act due to its intentional and deliberate nature); Cf. Kane v. State, No. 89-75-II, 1989 WL 136963, *2-3 (Tenn. Ct. App. Nov. 15, 1989) (discussing unforeseeable suicide is a self-inflicted injury that is an intervening act).
53 Restatement (Second) of Torts § 442A-§442B (1965).
54 Jim Gash, At the Intersection of Proximate Cause and Terrorism: A Contextual Analysis of the (Proposed) Restatement Third of Torts’ Approach to Intervening and Superseding Causes, 91 Ky. L.J. 523, 587 (2002-2003).
56 Id. at 582.
57 Hunt v. King County, 481 P.2d 593, 598 (Wash. Ct. App. 1971).
61 Berglund, supra note 43, at 1313.
63 Cf. Gilmore v. Shell Oil Co., 613 So. 2d 1272, 1278 (Ala. 1993) (holding that "suicide and/or deliberate and intentional self-destruction is unforeseeable as a matter of law").
64 Gash, supra note 54, at 582.
65 See generally State v. Jones, 953 S.W.2d 695 (Tenn. Crim. App. 1996); Stephen J. Ziegler & Nicholas P. Lovrich, Jr., Pain Relief, Prescription Drugs, and Prosecution: A Four-State Survey of Chief Prosecutors, 31 J. Legal Med. & Ethics 75, 94-95 (2003).
66 Nist, Comment, supra note 3, at 109.
67 Restatement (Second) of Torts § 448 (1965).
68 Cf. Gilmore v. Shell Oil Co., 613 So. 2d 1272, 1278 (Ala. 1993) (holding that "suicide and/or deliberate and intentional self-destruction is unforeseeable as a matter of law").
69 Argus v. Scheppegrell, 459 So. 2d 238, 241 (La. Ct. App. 1984).
70 Berglund, supra note 43, at 1313.
71 Davies v. Butler, 602 P.2d 605, 612-13 (Nev. 1979).
72 Starr, supra note 41, at 2334-35.
73 Restatement (Second) of Torts § 448 (1965).
Angelo J. Kappas: Northern Illinois University College of Law, Juris Doctor expected May 2006.University of Illinois, Bachelor of Science in Biology received May 2000.