The text of Nevada Senate Bill 75, authored by State Senator Tick Segerblom, is simple. Here it is in it's entirety:
1. Notwithstanding any provision of law, a person who suffers injuries as a result of an addiction to a prescription drug may bring and maintain an action for damages against:
a) The manufacturer of the prescription drug.
b) The provider of medical care who prescribed the prescription drug, if the provider of medical care knew or should have known of the person's addiction to the prescription drug.
2. A person who prevails in an action brought pursuant to this section may recover his or her actual damages, including, without limitation, any costs associated with rehabilitation for the addiction, attorney's fees and costs of any punitive damages that the facts may warrant.
3. [definitions]
That's it. Pretty straightforward. But at the same time, incredibly complicated.
To be clear, I'm in favor of the concept. Patients that suffer the consequences of iatrogenic disease (including addiction... perhaps especially addiction) should have recourse against the responsible physician. Addiction is a well-defined and legitimate diagnosis. If a patient exhibits symptoms of addiction and the physician misses them or refuses to acknowledge them, that physician should bear responsibility for the consequences to the patient.
That said, such broad language as included in Senate Bill 75 leaves lots of unanswered questions. If the doctor is to blame, where does the liability of the drug manufacturer come into play? How does such legislative language align with work comp's exclusive remedy? What would passage of such a bill do to malpractice insurance? I'm sure the plaintiff's bar loves this idea, but how do we separate the wheat from the chaff? (There will be no shortage of frivolous suits driven by this law). Plus the hudreds of other questions you're thinking of right now as you read this...
I'm not sure that Senate Bill 75 is the panacea some hope that it will be. But it's a bold suggestion in the face of a major public health issue.
Michael
On Twitter @PRIUM1
I personally don't know what this legislation would truly resolve. How would this provide anything more than the current ability to sue a prescriber or manufacturer for malpractice, false advertising or for producing a faulty product?
ReplyDeleteI assume that the legislation takes a prescriptive approach as to what could be sought in damages since it specifically addresses covering the cost of treatment. This would be fair, in my opinion, if it could be shown that the prescriber or manufacturer was negligent. Where things get a little sticky is when we consider the role of the patient. If we use the definition of addiction, as used by most in the recovery field, where there are a whole host of behaviors and actions that the patient may have lost control over but is none the less still responsible for then we risk shifting responsibility from the patient and drop it back onto the prescriber. This legislation doesn't specifically state that nor does it allude to it. What is a greater concern for me is the subtle trend that seems to be developing of blaming the product or the person writing the prescription for it.
In light of all of the information we now have about addiction I think it is critical to expect doctors to properly screen their patients before prescribing addictive substances. Similarly, it is also the physician's responsibility to monitor the drug use. In cases where the addiction is iatrogenic, an appropriate burden should fall, logically, to the phsycian as well as the manufacturer who ultimately profits from the use and distribution of the substance.
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