Most of the 6.4 million Americans who abuse prescription drugs obtain them from family or friends. So, the Drug Enforcement Administration is sponsoring another Take Back Day.
On April 28, 2018 between 10 and 2, New Yorkers can give unused prescription opioids to the DEA anonymously and with no questions asked. The government has been plugging the event for months, with public service advertisements featuring prominent athletes, former athletes, and celebrities. Officials hope for an even bigger event this time than the previous Take Back Day in October 2017. On that day, over 4,000 law enforcement agencies collected about 915,000 pounds of pills at over 5,000 sites. Turning in unused drugs is a good way to do you part to combat the opioid epidemic and also avoid possible legal liability.
Manhattan-area collection sites include the NYPD’s 84th Precinct headquarters near the Flatbush/Tillary intersection, the NYPD’s 7th Precinct near FDR Drive and the Williamsburg Bridge, and the Lenox Hill Healthplex in Greenwich Village. More New York City-area locations are listed here.
Establishing Liability for Overdose Injuries
One of the main reasons the DEA sponsors these Take Back Day is to get drugs off the street. Many people are not very diligent when it comes to leftover medicine. However, civil liability is not very common in individual cases. The standard of care is quite low. To be responsible for damages, the victim must essentially prove that the tortfeasor (negligent actor) played a very active role in the prescription drug transfer.
But the dynamics are different when it comes to medical providers. The standard of care is much higher here. So, liability is easier to establish. The five elements in a basic negligence case are:
- Duty: Most doctors have a fiduciary duty towards most patients. A fiduciary duty is the highest duty which the law recognizes. So, doctors have a responsibility to set aside their personal interests and only do what’s best for their patients.
- Breach: Writing prescriptions for dangerous drugs without asking any questions certainly breaches this duty.
- Cause: Prescription drug overdoses kill or seriously injure hundreds of thousands of people each year. Sometimes the problem is not so much the dosage, but the combination of medication. Either way, there is a clear link between wrongful prescriptions and damages.
- Foreseeability: The damages must be a foreseeable consequence of the tortfeasor’s misconduct. Foreseeability is fairly easy to establish in prescription drug overdose cases, but a little more difficult to prove in heroin overdose claims, even though the two are closely related.
- Damages: Compensation in an overdose case includes money for both economic losses, like medical bills, and noneconomic losses, such as pain and suffering.
Contributory negligence is one of the leading defenses in negligence actions. Essentially, the defendant tries to shift blame for the overdose from the tortfeasor to the victim. A good attorney should be ready to deal with this argument and other defenses that the other side may urge.
In some prescription drug overdose cases, the negligence per se shortcut may be available. The federal government has very strong criminal laws designed to end “pill mills.” In fact, in late 2017, a Manhattan doctor and his two assistants were charged with violating this law. They now face up to twenty years in prison apiece. Prosecutors allege that the doctor wrote about 8,000 bogus prescriptions between 2015 and 2017.
In civil court, most tortfeasors are responsible for damages as a matter of law if they:
- Violate a safety law, and
- The infraction substantially causes damages.
These violations are easier to prove in civil court because of the lower standard of proof. In Manhattan criminal court, prosecutors must prove that the good doctor was guilty beyond a reasonable doubt. But the standard in civil court is only a preponderance of the evidence (more likely than not).
Finally, under the respondeat superior rule, the prescribing doctor may not be the only responsible party. An employer, such as a hospital or clinic, is usually responsible for the negligent acts of its employees. Other applicable vicarious liability theories include negligent hiring and negligent supervision.
Vicarious liability is important in many cases because it gives victims an additional source of recovery.
Remember that Take Back Day is April 28, 2018. If you or a loved one has been injured in a prescription drug or other overdose, contact Napoli Shkolnik PLLC today for a free consultation. We routinely handle cases in New York County and throughout the state.