Can pharmacists be held liable as drug dealers?

A Georgia jury rendered a verdict in the first opioid trial seeking compensation for families

Photo by Dan Meyers on Unsplash

I was leaving work on Wednesday when I saw the notification that after a day and a half of deliberation, the jury in a Georgia class action over the opioid epidemic had rendered a verdict in favour of the opioid distributors. 

This is not the first lawsuit seeking to enforce accountability for the opioid epidemic which has claimed an estimated 932,000 lives since 1999 and garnered billions in settlements with pharmaceutical companies. 

The previous settlements and lawsuits over the actions of pharmaceutical companies and opioid distributors in the United States were brought by state governments and the settlement money was distributed to treatment and prevention programs. This lawsuit was different. 

A class of six lead families sued opioid distributors under Georgia's Drug Dealer Liability Act for compensation for the combined 21 family members they lost as a result of opioid addiction. Even though the plaintiff's were unsuccessful, the trial shone a light on difficult social and legal aspects of the opioid epidemic. 

Different Perspectives of a Addiction   

One of the interesting things about this trial was that not only were the parties arguing different sides, in many cases they were arguing fundamentally narratives. The families came forward with stories of the harm they suffered living in towns along the “blue highway”, a region where opioids were heavily overprescribed and doled out from local pharmacies. The lawyers for the opioid distributors focused on the autonomy with which addicts acted, attempting to drive home the notion that the harms experienced by the plaintiffs, which included rape, domestic abuse, and infanticide were the result of their family members having misaligned priorities. 

This discussion at trial brings up one of the complicated parts of addiction and attempts to create liability for addiction. When coal miners are dying of lung cancer, we have a fairly easy time say they needed to work, this was the job that was available, this job exposed them to carcinogens that caused their lung cancer. No one needs to smoke meth or inject heroin, and this can often make it difficult to view addictions to these kinds of drugs as something that a person has no control over - or as the product of a disease. When it comes to addiction there is some level of decision making that takes place, at least initially. Whether this was something that could have been helped or avoided or replaced with some healthier activity is not a topic that I am prepared to tackle. So, at the most basic level, the lawyers for the opioid distributors are correct in saying that the family members of the plaintiffs made a choice to begin taking the drugs. However, this is not, as they characterize, as simple as bad people making bad choices. 

Access to opioids isn’t like access to marijuana or cocaine. No one is growing it in their backyard or mixing it in their bathroom (I know that comment may be revealing how little I know about drugs). It comes from a pharmacy filling a prescription. As discovery from the various lawsuits against pharmaceutical companies and distributors has made clear, opioids were actively marketed to doctors as the solution for pain without adequate disclosure of the risks and/or addictiveness of the drugs, despite companies being well aware of this fact. Many of the individuals who became addicted to opioids, at least in the early stages, as was made clear by a 2007 settlement for 5,000 individuals with Purdue Pharma, did so after taking them as directed by a doctor. It is difficult to reconcile an epidemic of addiction and overdose that resulted from taking prescription pills, prescribed by a doctor and dispensed from a pharmacy to treat pain, with the assertion that individuals who became addicted to opioids did so of their own free will. This does not mean that there were not many individuals who sought out opioids illegally for purposes not related to pain management, and this is a point I will get to subsequently, but somewhere up the chain, these drugs were being prescribed and distributed by professionals. 

Who Should be Compensated for Costs?  

For the families who brought the lawsuit, the costs, both financial and social, emanating from the opioid epidemic did not stop with the death of their loved one. The stories told by the plaintiff highlighted the experiences of grandparents raising grandchildren, uncles raising nieces and nephews, and individuals suffering from the trauma of sexual and physical assault, all of which come with tangible costs that could be calculated and put forward to those responsible for the epidemic. 

The focus of previous settlements on providing community services to slow and hopefully put an end to the epidemic is incredibly important. There have been serious costs for the general public as a result of the opioid epidemic and taking steps to get things under control is essential. However, this trial was the first where a court had the opportunity to consider whether the families of users should be compensated for their losses, and for the losses and social stigma that they will continue to incur for years to come as a result of what happened. 

Drug Dealer Liability Act

This brings us to the final point that I want to raise about the trial today, and that is the law it was brought under. The Drug Dealer Liability Act enables recovery for persons, including family members, employers, etc., impacted by the marketing and distribution of illegal drugs. The difficulty for the plaintiffs came with the fact that opioids are not literally an illegal drug. They are a regulated controlled substance, at least on paper. But there is what happened on paper, and what happened in practice. 

The plaintiffs brought evidence showing that doctors from hundreds of miles away were prescribing opioids to be dispensed from the relevant pharmacies, and in Darien, GA, 290,000 oxycodone pills were sold in one year in a town with a population of 1,700. The plaintiffs testified that pills were being sold from person to person in pharmacy parking lots. All of this makes it difficult to believe that opioid distributors were unaware that pills were being overprescribed and circulated in the community, such that we should not be able to impute some liability onto them for their role in all of it. 

The difficult with this trial being before a jury is that there are no written reasons, and we are not privy to the deliberations or how they came to decide in favour of the opioid distributors. If I were to hazard a guess, it would be that they took a literal and narrow reading of the Drug Dealer Liability Act. A narrow reading, in my view, does not make sense in this case. As outlined, it is impossible to believe that the distributors were unaware of what was happening; that nothing about the circumstances raised red flags for them, and that they can truly go to bed at night saying that they played no role in death and destruction that the drugs they handed out from behind the counter resulted in.