Medical Malpractice Newsletter – Summer 2018

The Opioid Crisis

At least three Tennesseans die each day from an opioid-related drug overdose. TN Together Infographic at tn.gov. More opioid prescriptions are written than there are people living in Tennessee. The opioid crisis is a nationwide issue and has prompted a variety of responses from different players. In Tennessee, our Attorney General, Herbert Slatery, filed a lawsuit against Purdue Pharma, maker of OxyContin, alleging a violation of the Tennessee Consumer Protection Act. In addition, Governor Bill Haslam has pushed TN Together, a multi-faceted plan comprised of legislation, increased budgeting, and other actions to attack the crisis through prevention, treatment, and law enforcement. This article examines Tennessee’s responses to the crisis and evaluates the impact on the healthcare practitioner.

State of Tennessee v. Purdue Pharma

Tennessee joined several other states in May, 2018, in filing a 278 page complaint against Purdue Pharma. The Complaint, originally filed under seal, is now available in its entirety at tn.gov. A complete review of all the allegations in the Complaint is beyond the scope of this article, but generally, the Complaint alleges that Tennessee had the third highest prescription rate in 2015 and one of the highest amounts of opioids prescribed per person in the country. The cause is not that “Tennesseans experience pain at higher rates,” but rather, Purdue’s “aggressive marketing and other conduct has played a substantial role in creating and prolonging” the crisis. Purdue found increased sales calls generated more prescriptions for OxyContin, trained its sales representatives to “ensure new patient starts on Oxycontin,” and introduced “savings cards” which operate like a coupon for opioids. Purdue pushed the use of these cards because approximately 60% of patients stayed on Purdue’s products if the cards were redeemed. The Complaint alleges that Purdue violated Tenn. Code Ann. § 47-18-104(b)(27) by engaging in an act that causes or tends to cause a consumer or any other person to believe what is false.

TN Together

TN Together is described as a comprehensive plan to end the opioid crisis in Tennessee. Through legislation and a more than $30 million budget, the State seeks to end the crisis through prevention, treatment, and law enforcement.

For prevention, limitations will be imposed to decrease the supply and dosage of a prescription, with initial opioid prescriptions limited to a three-day supply. There will be an increase in education for elementary and secondary schools. Women of childbearing age who are chronic opioid users will receive targeted outreach designed to prevent neonatal abstinence syndrome. Finally, a commission will be created to formulate evidence-based pain and addiction medicine competencies and implementation of best practices regarding pain management. There will be more than $26 million in funding devoted to treatment, including recovery courts, recovery specialists in high-need emergency departments, and expanding residential treatment and services for opioid dependent offenders. Tennessee’s law enforcement will receive additional agents and additional training. There will be an update to the controlled substance schedule to better track and penalize the use of addictive drugs. Every state trooper will also carry naloxone for the emergency treatment of an opioid overdose prior to paramedic arrival.

Governor Haslam signed legislation to support TN Together on June 29, 2018. The entire text of the legislation may be found at tn.gov. Two new requirements necessitate special attention, the first being the new prescribing guidelines attached hereto and the second being the requirement of informed consent given in writing. Practitioners should study the new prescribing guidelines and ensure that informed consent from the patient is provided in writing. The legislation also requires healthcare providers to check the controlled substance database more frequently and requires providers to provide information to childbearing women regarding neonatal abstinence syndrome.

Healthcare providers should carefully review all parts of the legislation and implement the necessary protocols to ensure compliance. Providers should also be aware that Governor Haslam created a special commission to formulate recommended pain and addiction competencies to be provided to medical schools. It is expected that the commission will release its findings later this summer.

We have already noticed an uptick in “negligent prescribing” lawsuits against healthcare providers, and it appears the trend will continue. Complete compliance with all aspects of TN Together will not shield a provider from liability, but it will aid in defense of any claims for negligent prescribing.