By: Andrew Silverio, Esq.
In August, a $572 million Oklahoma ruling came down against Johnson & Johnson – the first major ruling against a drug manufacturer for its role in America’s ongoing opioid crisis. The holding found that the drug manufacturer’s advertising and marketing helped flood the state with dangerous painkillers, and it dominated the news cycle as the first major “loss” for a drug manufacturer in a case of this type (many similar claims have been settled out of court. It also sparked a firestorm of speculation about who will come out of the woodwork making such claims against various manufacturers, since the harm associated with the opioid crisis is so far-reaching.
Now, an unexpected plaintiff has jumped into the fight to claim their share of the payout – hospitals. Per Blake Farmer at NPR, “hundreds of hospitals have joined up in a handful of lawsuits in state courts, seeing the state-based suits as their best hope for winning meaningful settlement money” (see https://www.npr.org/sections/health-shots/2019/10/24/771371040/some-hospitals-sue-opioid-makers-for-costs-of-treating-uninsured-for-addiction.) If this causes you to raise an eyebrow, you aren’t alone – many would argue, and this will almost certainly be raised as a defense, that hospitals are in fact complicit in creating this crisis through overprescribing of these drugs.
The hospitals’ main claim will be that they have been damaged in the form of all the uncompensated care they have had to provide resulting from the opioid crisis, emergency and otherwise, with most of this care being uncompensated as the patients are often uninsured and unable to pay for treatment. This is certainly a legitimate complaint, however many hospitals have been unwilling to join in. This is likely at least in part motivated by a desire to keep details private about the hospitals’ own prescribing practices (which will likely be scrutinized by the defense), as well as to avoid being required to justify their charges as they relate to the actual costs of care.
We will undoubtedly continue seeing new lawsuits in this area for years, but these will be important cases to keep an eye on.