Court Paves a Way for Suits by ‘Pill Mill’ Users

     CHARLESTON, W.Va. (CN) – Prescription-drug addicts who say pharmacies and doctors contributed to their addictions scored a civil victory in the West Virginia Supreme Court of Appeals.
     Answering a question certified to it by the Mingo County Circuit Court, the May 13 opinion says that the illegal actions of controlled-substance abusers does not bar them from seeking recovery for damages through the legal system.
     The ruling paves a way for 29 plaintiffs who have filed lawsuits in Mingo alleging that the doctors working for and pharmacists working with the Mountain Medical Center negligently prescribed and dispensed controlled substances in a way that caused their addictions.
     An FBI raid of Mountain Medical revealed the improper prescription of controlled substances in violation of several federal and state laws, according to last week’s 23-page opinion on the case.
     Some physicians’ medical licenses were revoked, and some pleaded guilty to and served time for federal offenses.
     Each plaintiff sought treatment from Mountain Medical, usually after a car wreck or workplace injury, was allegedly prescribed controlled substances such as Lortab, Oxycontin and Xanax.
     Most or all of the plaintiffs admit their substance abuse started before they became patients at the Mountain Medical, and all of them admit to having engaged in illegal activities, including criminal possession of pain medications, criminal distribution, purchase and receipt of pain medications off the street; criminally obtaining narcotics through misrepresentation, fraud, forgery, deception and subterfuge; criminally obtaining narcotics from multiple doctors concurrently; and abusing pain medication by ingesting greater amounts than prescribed, and snorting or injecting the drugs to enhance their effects.
     During depositions nearly all of the plaintiffs invoked their Fifth Amendments rights to avoid self-incrimination, and refused to answer many of the questions about where they obtained controlled substances from sources other than licensed physicians, the appellate court’s opinion notes.
     The plaintiffs accuse Tug Valley Pharmacy, B&K Pharmacies Inc., Strosnider Drug Store Inc., as well as Drs. Diane Shafer, Victorino Teleron, William Ryckman, and Katherine Hoover, of acting “in concert” with one another to continue the “pill mill” practices of overprescribing narcotics to patients.
     Of the defendants, only Strosnider Drug Store and its pharmacist, James Wooley, were also subject to disciplinary action, the court noted last week.
     Claims in the complaint allege that the pharmacies refilled controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances and filled prescriptions for synergistic drugs that would enhance a controlled substance’s effect.
     The “wrongful-conduct rule” went before the West Virginia high court when the three pharmacies and Shafer cited it in a motion for summary judgment against the civil claims they face in Mingo.
     Chief Justice Margaret Workman wrote for the court that the wrongful-conduct rule is based on the idea that the “courts should not lend their aid to a plaintiff who has founded his cause of action on his own illegal conduct.”
     Though the appellate court has not implicitly endorsed the rule, Workman said barring claims under the wrongful-conduct rule is often justified to avoid encouraging illegal conduct, prevent wrongdoers from profiting from their acts, avoid damage to the public’s perception of the legal system and prevent wrongdoers from shifting responsibility of their illegal acts onto another party.
     Critics of the rule meanwhile have deemed it “slippery and vexing,” and courts have struggled to define what level of conduct merits barring a claim, according to the ruling.
     Using the rule gives a court the ability to substitute its judgment for the traditional judgment of the jury, and it also confers immunity on a defendant who also violated the law.
     Rather than use the wrongful-conduct rule to dismiss the plaintiffs’ cases, the appellate court said a jury should evaluate the plaintiffs’ wrongful conduct under a system of comparative negligence, which will allow a jury to weigh the plaintiffs’ contributing wrongful conduct against any wrongful conduct committed by the defendants.
     A jury will have to decide whether the plaintiffs had pre-existing addictions that were simply enabled by the defendants, or if the plaintiffs’ addictions were created as a result of the defendants’ actions, the court said.

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