US Pharm. 2015;40(8):49-51.
Should individuals who are addicted to medications be allowed to sue the pharmacies that provided the drugs that caused, or at least contributed to, their addictions? One recent case says “yes,” while an older case disagrees.1,2
In pari delicto is a common law principle that states that a participant in a wrongful act may not recover damages resulting from it; i.e., may not sue the other participants in the crime.3 This is also known as the dirty or unclean hands doctrine,4 where a person cannot receive equitable relief when he or she acts in bad faith or in an unethical manner. Applying these rules would suggest that drug addicts should be barred from any recovery against the pharmacist or pharmacy that might have contributed to their addiction. However, as the first case indicates, the doctrines do not always apply, especially given certain fact patterns.
Case 1 (2015)
A group of 29 plaintiffs sued several physicians, pharmacists, and three pharmacies for wrongful addiction through the operation of a “pill mill.”1 The plaintiffs alleged that these defendants caused them to abuse and become addicted to prescription narcotics, claiming that the physicians failed to perform necessary examinations and improperly prescribed the drugs. The pharmacies, in turn, filled these prescriptions, which were not written for legitimate medical purposes. Allegedly, the pharmacies acted in concert with the medical center, which was well aware of the pill mill operation, and filled controlled-substance prescriptions too early, contraindicated controlled substances, and synergistic medications that enhanced the effects of the drugs. The plaintiffs complained that the sheer volume of business associated with the pill mill suggests an awareness and joint endeavor with the medical providers.
The plaintiffs were all patients of the same medical center. They sought treatment for pain resulting from auto accidents or work-related injuries and received prescriptions for Lortab, OxyContin, and Xanax over a prolonged period of time.
Importantly, all of the plaintiffs admitted to engaging in criminal activities related to obtaining the prescriptions under false pretenses. Each of the plaintiffs also admitted to illegally possessing, purchasing, and using narcotics. The plaintiffs also admitted that their abuse predated any treatment at the medical center and the existence of some of the pharmacies. They bought drugs “off the street,” criminally acquiring and obtaining narcotics through misrepresentation, fraud, forgery, deception, and subterfuge. They saw multiple doctors concurrently (“doctor shopping”) and ingested higher amounts of drugs than prescribed, snorting and injecting the drugs to enhance their effect.
In separate actions, one of the physicians lost her license and served time in prison for misuse of her DEA registration number. A pharmacist was criminally convicted of drug-related offenses. The small clinic saw 175 patients per day on average, and between 2002 and 2010 the convicted physician issued over 355,000 controlled-substance prescriptions.1
The defendants sought dismissal of the wrongful addiction claims on the grounds that the plaintiffs’ claims were barred because: 1) they were “relying in whole or in part, on an illegal or immoral act or transaction” to which they were parties; and 2) the doctrine of in pari delicto applied.1
Decision: The trial court certified the two defense arguments to the West Virginia Supreme Court, asking guidance on how to proceed in a case where no precedence existed. The Court characterized the questions as to whether or not it would adopt the “wrongful conduct rule” as it exists in other jurisdictions.
Ironically, the Court expressly stated it was aware that the state legislature enacted a statute effective May 15, 2015, that would bar the current action.5 However, that statute was not in effect on the day this complaint was filed and therefore had no bearing on this case. Looking to other states that had adopted some form of the in pari delicto defense, the Court stated that in its “modern” form, the rule is that “a person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party.”6
The Court noted that critics of the rule have deemed it “slippery and vexing,” and have focused on the difficulty in formulating a comprehensive rule. Since “moral offensiveness is a patently subjective notion,” application of the rule requires the court to “evaluate the plaintiff’s conduct through a moral prism trained on an ever changing social landscape.” In addition, “once a flaccid rule is articulated, the rule essentially permits the court to substitute its judgment for that of the traditional fact-finder—the jury.”1
The majority of the Court held that a plaintiff’s immoral or wrongful conduct does not serve as a common law bar to his or her recovery for injuries or damages incurred as a result of the tortious conduct of another. A plaintiff’s conduct must be assessed in accordance with principles of comparative fault, meaning that “the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries.” In this case, “did the respondents suffer from preexisting addiction and abuse of controlled substances, which was merely enabled and perpetuated by the petitioners’ alleged conduct, or was their addiction to and abuse of the controlled substances a result of the petitioners’ conduct?...These are complex factual issues that are not resolved by simply placing a ‘bad actor’ tag on each of the parties and washing [our] hands of the matter.” The Court would leave it to a jury to decide these questions.1
Case 2 (1995)
The patient became physically and psychologically addicted to Desoxyn (methamphetamine HCl), resulting in auditory and visual hallucinations and mental illness including, but not limited to, paranoid schizophrenia.2 Allegedly, as a result of his condition, the patient had sustained pain, suffering, and disability, including loss of earning capacity, and has required hospital care and treatment. The plaintiffs (representing the patient) contended that these injuries were permanent in nature, resulting in loss of companionship and numerous medical expenditures.
When the trial commenced in 1988, the plaintiffs claimed that the pharmacy defendant had breached common law and statutory duties when it filled Desoxyn prescriptions for him without asking for identification or allowing an adequate interval between prescriptions. The prescriptions also stated they were for “weight control,” when they allegedly should have said “obesity.”
In his deposition, the patient explained that his use of Desoxyn did not begin with the defendant. Between 1979 and 1980, he began to use Desoxyn purchased from his coworkers at General Motors. By November 1980, he was taking one to two Desoxyns a day. By January 1981, he had increased his daily intake to three to five pills. In March 1981, he began to hear voices, experience hallucinations, and suffer from paranoid delusions. By June 1981, his use had escalated to eight to 10 Desoxyns a day. In July 1981, he was forced to take a medical leave from his job at General Motors.
The patient testified that he knew that his purchase and use of Desoxyn was illegal and admitted he was addicted to the drug by July 1981. The plaintiffs additionally contend that by this time, the patient was no longer taking Desoxyn voluntarily and was suffering from amphetamine psychosis to the point of being rendered legally insane so that he could not conform his conduct to the requirements of law.
In August 1981, the patient started going to the Figure Eight Weight Loss Clinic one to three times a week. There he would misrepresent to the physicians that he desired to lose weight, and they would write him Desoxyn prescriptions for “weight control.” It is uncontested that he never wanted nor needed to lose weight, and that the only reason he went to the clinic was to obtain Desoxyn.
According to evidence presented at trial, the pharmacy defendant had filled a total of six to nine Desoxyn prescriptions for the patient from August 1981 until January 1982, each for a medically acceptable one month’s supply of 30 tablets. Each prescription the patient had presented had been signed by a licensed physician.
The patient testified that during that same period, he was also obtaining Desoxyn from other sources. He would have some of his prescriptions from Figure Eight filled by other pharmacies and also continued to purchase the drug from his General Motors coworkers. At his peak, he was taking 10 to 15 pills a day.
Decision: The pharmacy asked the trial judge to dismiss the case prior to trial on the grounds that it had not breached any duty of care to the patient and that the plaintiffs were precluded from any recovery because of the patient’s illegal conduct in connection with Desoxyn. The judge took this motion under advisement.
Without ruling on the motion, the trial judge instructed the jury to apply comparative negligence principles to determine the extent of each party’s responsibility for the damages, if any. The jury found the defendant negligent, and assessed the plaintiffs’ damages at $3.8 million. The jury also found the patient 50% comparatively negligent, and the verdict was reduced to $1.9 million.2
The pharmacy moved for judgment notwithstanding the verdict, and the trial judge granted the motion on the basis that the patient’s illegal acts barred the plaintiffs’ claim.
Appeals: A Court of Appeals majority reversed the trial court in December 1993.2 The majority opined that the patient’s illegal conduct should not operate to bar the plaintiffs’ claim and that comparative negligence principles should apply to determine the extent of their potential recovery. Alternatively, even assuming his illegal conduct would normally operate to bar recovery, the bar could not apply in this case because evidence showing that the patient was insane at the time that he committed his illegal acts made him unaccountable.
In 1995, the Michigan Supreme Court held that the patient’s illegal conduct warranted application of the wrongful-conduct rule. “By his own admissions, [the patient] repeatedly violated several provisions of the Controlled Substances Act when he obtained, possessed, and used Desoxyn without a valid prescription.”2 This case stands as a testament to the destruction that can result when this occurs.
As to the causation prong of the rule, the Court noted that the plaintiffs did not dispute that the patient’s illegal conduct was at least a proximate cause of his asserted injuries. However, the plaintiffs argued that his illegal conduct cannot be considered for purposes of the wrongful-conduct rule because he was insane when he dealt with the defendant. The Court disagreed: “Proceeding on the assumption that the patient did at some point become legally insane, and that such insanity would excuse the illegal acts he committed while insane, we are still able to conclude that his illegal acts, committed while he was sane, proximately caused his damages.”2
It was uncontested that the patient was sane when he first began to illegally purchase Desoxyn and that his use escalated. “The chronology of [his] use of Desoxyn while he was sane makes plain that his illegal use during that time was the direct, immediate, and necessarily proximate cause of his addiction to Desoxyn, his hallucinations, and his mental illness at least to the extent of being considered legally insane. With regard to any further asserted injuries, we find that [the patient’s] transactions with Desoxyn while he was sane are necessarily a proximate cause of those injuries as well.”2
It was also undisputed that both the patient and the pharmacy engaged in wrongful conduct, and the Court found the two parties to be equally at fault. “While the plaintiffs argue that [the patient’s] culpability is less than the pharmacy’s because of his alleged disability, we are not convinced. Even if we were to accept the plaintiffs’ characterization of [his] status as legally insane, that status does not prompt application of the culpability exception in this case because it was [the patient] who, by his continuous illegal use of Desoxyn, caused himself to become both addicted and insane. Certainly, we regard his status as a tragedy. However, because [he] is ultimately responsible for causing any ‘great inequality of condition’ in the first place, we conclude it would be inappropriate to apply the culpability exception under these facts.”2
Hence, the Michigan Supreme Court reversed the Court of Appeals decision and entered a judgment in favor of the pharmacy.2
It could be said that the decisions in these two cases are so diametrically opposed because the facts differ. However, looking at the big picture, the essential points are quite similar. In both, the plaintiffs engaged in illegal conduct before going to the pharmacies. Both were obtaining drugs from sources other than the pharmacies at the same time and secured prescriptions illegally. The pharmacies knew or should have known that the prescriptions were illegal, not for legitimate medical purposes, that they were being filled too frequently, and that other signs existed to alert the pharmacists that the prescriptions were not valid.
So why the difference in results? Perhaps it is a change in attitude about the responsibility of pharmacies that has evolved in the 20 years between the decisions. The public—and judges—are much more aware that pharmacies have tremendous duties for the welfare of patients and that significant accountability, if not liability, should be attached when the pharmacies engage in wrongdoing.
1. Tug Valley Pharmacy v. All Plaintiffs Below in Mingo County, Slip Op 14-0144, May 13, 2015, Sp Ct West Virginia. http://caselaw.findlaw.com/wv-supreme-court-of-appeals/1702047.html#sthash.3fsr0JYX.dpuf. Accessed July 1, 2015.
2. Orzel v. Scott Drugs, 449 Mich. 550, 537 NW2d 208, (1995). http://law.justia.com/cases/michigan/supreme-court/1995/98506-6.html. Accessed July 1, 2015.
3. In pari delicto doctrine. Business Dictionary. www.businessdictionary.com/definition/in-pari-delicto-doctrine.html. Accessed July 1, 2015.
4. Dirty hands. U.S. Legal. http://definitions.uslegal.com/d/dirty-hands-doctrine. Accessed July 1, 2015.
5. HB 2002, 2015 Leg. 82 Sess (W. VA. 2015).
6. See Orzel, note 2, supra at 212. 1A CJS, Actions, § 29, p 386 and 1 Am Jur 2d, Actions, § 45, p 752.
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