This is Insane
- Thread starter wvkeeper(HN)
- Start date
Like doctors, pharmacists have a duty to make sure there is a legitimate medical purpose for medications that are being prescribed (often referred to as a corresponding duty).
If one person comes in and fills 6 scripts for a 6 different people, pays cash for all 6, and you - as the pharmacist - observe that this is going on, and also see that each of these folks have all just been to the same out-of-state dr. and received the same or similar prescription, yet you go ahead and fill those scripts, you ought to be open to civil liability for perpetuating obvious drug addictions in your community.
And before you say "how often does that happen?", yhe answer is every freaking day with pharmacies all across WV, KY, FL, GA, TN, AR, OK, KS, and just about any other state you can think of.
If one person comes in and fills 6 scripts for a 6 different people, pays cash for all 6, and you - as the pharmacist - observe that this is going on, and also see that each of these folks have all just been to the same out-of-state dr. and received the same or similar prescription, yet you go ahead and fill those scripts, you ought to be open to civil liability for perpetuating obvious drug addictions in your community.
And before you say "how often does that happen?", yhe answer is every freaking day with pharmacies all across WV, KY, FL, GA, TN, AR, OK, KS, and just about any other state you can think of.
Accountability for the Pharmacist isn't the point. Prosecute them if they are guilty of profiteering off of addiction.The point is should the courts allow the addicted to sue the Pharmacist for their own behavior? To me it would be like allowing the bank robber to sue the banker because he left the door unlocked. Fire the banker for negligence if you must, but don't create incentive for robbing the place by placing a litigation treasure box in the hand of a criminal.
I just finished reading the decision. And I actually agree with it. This case is about crooked doctors and pharmacies. What I don't agree with is a law should be passed that any award go to the costs of incarceration or rehabilitation of these addicts.
Read the case.That's exactly what it is about. If a crooked pharmacist is profiting off of people's addictions and perpetuating that addiction, they should be held liable - criminally and civilly. Do the addicts and sponsors bear responsibility? Absolutely. But that doesn't mean the drs. and pharmacists are absolved of any themselves. This has been the case in criminal law for years. The same logic applies in the civil context. The fact of the matter is oxycodone and other similar pain medications are controlled substances. Absent crooked drs. and pharmacists, you wouldn't have anywhere near the same level of abuse we are seeing in rural America.
Right...why I said, "Prosecute them if they are guilty of profiteering off addiction." You are trying to argue a point I already established I agree with. Where we don't agree is how you handle those pharmacist. I believe that criminal prosecution and a hefty fine is the way to go. But I don't believe that allowing the very people who made the wrong choices to profit from their own stupidity and own lack of discipline is the way to go. Fine them and return some of the money to the taxpayers who are footing the bill for our futile fight against drugs. But don't allow a bunch of addicted people to win a settlement and end up right back in tne cycle of drug use...this time with a pocket full of money.
Now...if you repeat the same thing again I quit. Lol.
Why would anyone think it's a good idea to let someone profit from their crime? I understand the argument of "if they wouldn't have given me the drugs, I wouldn't have gotten addicted to them", but it starts with an illegal action by the would be addict. A pharmacist can't spot a pattern and exploit it until it is already established.
There are about a million examples of situations where a criminal can be held civilly liable for the harm they cause. How is this any different? You want to draw a distinction in this case because the addict is also responsible. The thing is, civil actions are structured so that a jury can take the plaintiff's own responsibility into account in determining the extent of any judgment to which they might be entitled. In other words, blame can be partitioned based on percentage of responsibility.
** Disclaimers: THIS IS NOT LEGAL ADVICE. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP ESTABLISHED WITH ANYONE POSTING IN THIS THREAD. THIS IS AN ACADEMIC DISCUSSION. **
I am not licensed in WV, nor do I practice this type of law (general tort/negligence). However, I can provide a little bit of insight, I think.
First, in tort law, if a defendant is found to be at fault for the injury suffered by the plaintiff, then the jury will determine the damages by looking at the possible contributory or comparative negligence of the plaintiff and if found offset the damages awarded according to the contrib/compar. negligence scheme.
In a contributory negligence state, if the plaintiff is even 1% at fault, the plaintiff is completely barred from ANY recovery. This doctrine was once popular but fallen out of favor, and only four states use this form of analysis (AL, MD, NC, VA, and DC).
In a (pure) comparative negligence state, the plaintiff's recovery is offset by the percentage of fault (e.g., if the jury finds $1 million in damage, but the plaintiff is 30% at fault, then the damages are reduced by the 30%, resulting in a damage award of $700,000; if the jury finds plaintiff 99% at fault, reduced damages will result in $10,000 (1% of $1 mil.)). This doctrine is followed by twelve states (including KY).
In a modified comparative negligence state, the plaintiff cannot recover unless his/her comparative fault is less than either (a) 51% (includes OH - if plaintiff and defendant are 50-50% responsible, plaintiff recovers 50% of damages), or (b) 50% (includes WV - if plaintiff is 50% responsible, there is no recovery at all; if plaintiff is 49% or less at fault, then plaintiff recovers by the amount defendant is responsible).
Second, there is a doctrine (labeled either "unlawful acts doctrine" or "serious misconduct doctrine") that has been legislatively adopted in eight states (not WV prior to suit, but one that was adopted the day after arguments were heard in this case), and judicially adopted/created in several other states. In essence, the "unlawful acts doctrine" prevents recovery by a plaintiff because of the negligence of a defendant where the plaintiff has committed a felony as part of the injury. However, based on my reading of the several iterations of the doctrine, it is NOT a threshold issue used to bar the suit, it is used to bar recovery (meaning the jury still decides negligence and any defenses, including "unlawful acts doctrine" issues).
That's background - as lengthy as it is.
The question presented to the court by the pharmacies/pharmacists/drug companies on appeal was whether WV had already (by judicial implication) adopted such a rule, and if not, should it adopt the "unlawful acts doctrine" rule, and framed the rule as a barrier to suit (as opposed to recovery). The majority stated that WV had not (explicitly or by implication) adopted such a rule, and later stated that it would not adopt the rule to apply in this matter. The core reasoning for not adopting the rule centers on the fact that WV is a modified comparative negligence state, and if the defendant(s) (pharmacies/pharmacists/pharma) can prove the plaintiff 51% at fault, and thus cannot recover damages, that is (de facto) the same as proving by a preponderance of the evidence (51% or greater) that plaintiff's criminal conduct was more responsible for the alleged injury.
Notably, as pointed out in one of the dissenting opinions, the admittedly criminal plaintiffs did NOT alleged that the defendants acted criminally, so the alleged (or even provable) criminal conduct of the defendants is actually detrimental to the plaintiffs' potential recovery because criminal conduct (intentional) by the pharmacists/pharmacies/drug companies would remove the defendants' insurance carriers from the pool of money that could be recovered (as intentional/criminal conduct is not protected by negligence-based malpractice and product liability coverage), thereby reducing the number and size of the deep pockets sought in tort actions.
Although the new law does nothing to impact this case going forward, and will likely not prevent these types of suits from being filed, the new law should limit (if not prohibit) monetary recoveries where a plaintiff's criminal conduct is the major factor in the alleged injury (e.g., addiction).
I am not licensed in WV, nor do I practice this type of law (general tort/negligence). However, I can provide a little bit of insight, I think.
First, in tort law, if a defendant is found to be at fault for the injury suffered by the plaintiff, then the jury will determine the damages by looking at the possible contributory or comparative negligence of the plaintiff and if found offset the damages awarded according to the contrib/compar. negligence scheme.
In a contributory negligence state, if the plaintiff is even 1% at fault, the plaintiff is completely barred from ANY recovery. This doctrine was once popular but fallen out of favor, and only four states use this form of analysis (AL, MD, NC, VA, and DC).
In a (pure) comparative negligence state, the plaintiff's recovery is offset by the percentage of fault (e.g., if the jury finds $1 million in damage, but the plaintiff is 30% at fault, then the damages are reduced by the 30%, resulting in a damage award of $700,000; if the jury finds plaintiff 99% at fault, reduced damages will result in $10,000 (1% of $1 mil.)). This doctrine is followed by twelve states (including KY).
In a modified comparative negligence state, the plaintiff cannot recover unless his/her comparative fault is less than either (a) 51% (includes OH - if plaintiff and defendant are 50-50% responsible, plaintiff recovers 50% of damages), or (b) 50% (includes WV - if plaintiff is 50% responsible, there is no recovery at all; if plaintiff is 49% or less at fault, then plaintiff recovers by the amount defendant is responsible).
Second, there is a doctrine (labeled either "unlawful acts doctrine" or "serious misconduct doctrine") that has been legislatively adopted in eight states (not WV prior to suit, but one that was adopted the day after arguments were heard in this case), and judicially adopted/created in several other states. In essence, the "unlawful acts doctrine" prevents recovery by a plaintiff because of the negligence of a defendant where the plaintiff has committed a felony as part of the injury. However, based on my reading of the several iterations of the doctrine, it is NOT a threshold issue used to bar the suit, it is used to bar recovery (meaning the jury still decides negligence and any defenses, including "unlawful acts doctrine" issues).
That's background - as lengthy as it is.
The question presented to the court by the pharmacies/pharmacists/drug companies on appeal was whether WV had already (by judicial implication) adopted such a rule, and if not, should it adopt the "unlawful acts doctrine" rule, and framed the rule as a barrier to suit (as opposed to recovery). The majority stated that WV had not (explicitly or by implication) adopted such a rule, and later stated that it would not adopt the rule to apply in this matter. The core reasoning for not adopting the rule centers on the fact that WV is a modified comparative negligence state, and if the defendant(s) (pharmacies/pharmacists/pharma) can prove the plaintiff 51% at fault, and thus cannot recover damages, that is (de facto) the same as proving by a preponderance of the evidence (51% or greater) that plaintiff's criminal conduct was more responsible for the alleged injury.
Notably, as pointed out in one of the dissenting opinions, the admittedly criminal plaintiffs did NOT alleged that the defendants acted criminally, so the alleged (or even provable) criminal conduct of the defendants is actually detrimental to the plaintiffs' potential recovery because criminal conduct (intentional) by the pharmacists/pharmacies/drug companies would remove the defendants' insurance carriers from the pool of money that could be recovered (as intentional/criminal conduct is not protected by negligence-based malpractice and product liability coverage), thereby reducing the number and size of the deep pockets sought in tort actions.
Although the new law does nothing to impact this case going forward, and will likely not prevent these types of suits from being filed, the new law should limit (if not prohibit) monetary recoveries where a plaintiff's criminal conduct is the major factor in the alleged injury (e.g., addiction).
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At the end of the day, this decision is (probably) not meaningful in the big picture b/c there is no "barrier-to-suit" rule in this area of the law, the extension of the "unlawful acts doctrine" as a barrier-to-suit would be novel (I think), and in this case, the likelihood is that the defendants will be successful in showing that plaintiffs more than contributed to their own addictions and thus removing the defendants from civil responsibility.
Suffice it to say that news reporting on legal matters is far from ideal.
Suffice it to say that news reporting on legal matters is far from ideal.
