A new state supreme court decision allowing patients to sue doctors and pharmacies for contributing to their opioids addiction could spill over to the workers’ comp arena, legal experts say.
Workers’ comp experts told the trade publication Business Insurance that insurers and employers should put measures in place to reduce the chances of overprescribing of the highly addictive and potent painkillers to injured workers.
In the case at hand, 28 people filed eight lawsuits in West Virginia, alleging that medical centers and doctors had prescribed and dispensed drugs that led them to abuse and become addicted to opioids, according to court documents.
The doctors allegedly prescribed drugs like Lortab, Oxycontin and Xanax to the plaintiffs, who had been injured in automobile accidents or at work.
The state’s Supreme Court of Appeals ruled that plaintiffs could sue the medical centers and the physicians for contributing to their addictions to prescription opioids.
Interestingly, the court made the decision despite the fact that the patients admitted to abusing these drugs prior to going to these medical centers, and that they had engaged in “illegal activities associated with the prescription and dispensation of controlled substances.”
The defendants had filed a motion for summary judgment asking that the cases be thrown out based on the “wrongful conduct” rule, which states that a person can’t sue “when his or her unlawful conduct or immoral act caused or contributed to their injuries.” The court rejected the argument.
While the decision opens up the clinics, doctors and pharmacies to lawsuits, experts say that it could have an effect on workers’ comp payers. If injured workers who are addicted to painkillers and are overprescribed can sue as well, it could make settling their claims more difficult and costly.
And it could open up employers to lawsuits outside the workers’ comp system. If that is the case, employers could be swept up in legal disputes that their workers’ comp insurance may not cover.
Besides the new threat of lawsuits, opioids can often have a detrimental effect on workers’ comp claims in general. It’s been noted in a number of studies that the opioids can interfere with an injured worker’s recovery.
Why You Should Be Concerned
Opioids account for 23% of all prescriptions in California workers’ comp cases, according to the California Workers’ Compensation Institute (CWCI).
Opioid prescriptions account for 24% of all prescription costs in California, according to the CWCI.
The average cost of claims with a short-acting opioid (Percocet, for example), is $39,000, compared to just $13,000 for claims without an opioid prescribed, according to the National Council on Compensation Insurance (NCCI).
The average claim cost with a long-acting opioid – e.g., OxyContin – is $117,000 (900% above the average), according to the NCCI.
Between 2001 and 2008, narcotics prescriptions as a share of all drugs used to treat workplace injuries jumped 63%, according to the NCCI.
When prescriptions for certain opioid painkillers were included in workers’ comp claims, it was nearly four times more likely that a catastrophic claim would develop. This is according to the study “The Effect of Opioid Use on Workers’ Compensation Claim Cost in the State of Michigan.”
Claims involving long-acting opioids were 3.94 times as likely to have a total cost of $100,000 or more compared with claims without any prescriptions.
What you can do
If you have an injured worker who is being prescribed opioids by the treating physician, you should work with us, the insurer’s claims adjuster and the doctors to make sure that the physician is using a prescription drug monitoring program, in order to see whether other doctors are also prescribing opioids to the same worker.
If the treating physician is not accessing an abuse database, they are failing to abide by best practices for deterring opioid abuse.
The Most Prescribed Opioids*
Vicodin (hydrocodone with acetaminophen) 46.1%
Ultram (tramadol) 14.7%
Percocet (oxycodone with acetaminophen) 13.6%
OxyContin (oxycodone) 8.3%
Tylenol with codeine (acetaminophen with codeine) 3.8%
All others 13.5%
Source: Express Scripts Inc.