The Supreme Court of Appeals of West Virginia (“West Virginia Supreme Court”) recently ruled that the so-called wrongful conduct rule does not apply in an alleged pill mill case in West Virginia that was brought by the plaintiffs who alleged that the defendants were responsible for their drug addictions. The West Virginia Supreme Court held that any wrongdoing on the part of the plaintiffs must be assessed under West Virginia’s comparative negligence law and does not per se operate as a complete bar to their causes of action.
The Wrongful Conduct Rule
The wrongful conduct rule that some other jurisdictions have adopted provides that a plaintiff may not recover when his or her unlawful conduct or immoral act caused or contributed to the injuries.
The Plaintiffs’ Allegations
The plaintiffs were patients of a medical center and its physicians who provided medical treatment to people injured as a result of traffic accidents and workplace accidents. The plaintiffs were prescribed controlled substances, including Lortab, Oxycontin, and Xanax, which they filled at the defendant pharmacies and to which they allege that they became addicted, allegedly resulting in their admitted criminal abuse of the prescriptions and criminal activity associated with obtaining the drugs.
Most of the plaintiffs admitted that their abuse of controlled substances pre-dated their treatment at the medical center and the existence of some of the defendant pharmacies. All of the plaintiffs admitted to engaging in most of the following while being provided services by the defendant pharmacies: criminal possession of pain medications; criminal distribution, purchase, and receipt of pain medications; criminally acquiring and obtaining narcotics through misrepresentation, fraud, forgery, deception, and subterfuge (i.e., not advising doctors of addiction or their receipt of narcotics from other doctors); criminally obtaining narcotics from multiple doctors concurrently (i.e., doctor shopping); and, abusing and/or misusing pain medication by ingesting greater amounts than prescribed and snorting or injecting the medications to enhance their effects.
During the plaintiffs’ depositions, most of them asserted their Fifth Amendment privilege against self-incrimination, refusing to answer questions about other sources from whom they obtained controlled substances who were not licensed physicians.
Nonetheless, the plaintiffs allege that the medical center and its medical providers acted in concert with the defendant pharmacies, which pharmacies were aware of the so-called “pill mill” activities of the medical providers. The plaintiffs also allege that the defendant pharmacies refilled the controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances, and filled synergistic controlled substances which would provide an enhancing effect to the drugs – the plaintiffs also alleged that the sheer volume of business derived from the “pill mill” facilities and physicians suggests an awareness of and joint endeavor in the improper activities of the medical providers.
Based on the plaintiffs’ admissions of their own criminal activity associated with the prescription and dispensation of controlled substances by the defendant pharmacies, the defendants moved for summary judgment, asserting that the plaintiffs’ claims were barred by the wrongful conduct rule as a matter of law. The trial court concluded that the plaintiffs’ claims were not barred but certified questions to the West Virginia Supreme Court, including, “May a person maintain an action if, in order to establish the cause of action, the person must rely, in whole or in part, on an illegal or immoral act or transaction to which the person is a party?”
West Virginia has adopted a modified comparative negligence scheme wherein a plaintiff may recover unless his fault equals or exceeds the negligence of all other parties – a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved. (See, however, House Bill 2002, 2015 Leg. 82nd Sess. (W. Va. 2015) (effective May 25, 2015) (to be codified at West Virginia Code §§ 55-8-13a through 13d), which modifies West Virginia’s comparative fault scheme to bar recovery only where plaintiff’s fault is greater than the combined fault of all other persons responsible for the damages).
The West Virginia Supreme Court held, “our system of comparative negligence offers the most legally sound and well-reasoned approach to dealing with a plaintiff who has engaged in immoral or illegal conduct. We find that in cases where a plaintiff has engaged in allegedly immoral or criminal acts, the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries, for purposes of assessment of comparative fault. These are highly factual inquiries, all of which require the jury’s venerable analysis and respected consideration. In the instant case, there is an obvious threshold factual question which perfectly illustrates the potential inequity in applying a wrongful conduct bar: did the respondents [plaintiffs] suffer from pre-existing addiction and abuse of controlled substances which was merely enabled and perpetuated by the petitioners’ [defendant pharmacies’] alleged conduct or was their addiction to and abuse of the controlled substances a result of the petitioners’ conduct? … we hold that a plaintiff’s immoral or wrongful conduct does not serve as a common law bar to his or her recovery for injuries or damages incurred as a result of the tortious conduct of another. Unless otherwise provided at law, a plaintiff’s conduct must be assessed in accordance with our principles of comparative fault.”
Source Tug Valley Pharmacy, LLC, et al. v. All Plaintiffs Below In Mingo County, No. 14-0144, filed May 13, 2015.
If you were harmed as a result of medical negligence in West Virginia, you should promptly find a West Virginia medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a West Virginia medical malpractice case, if appropriate.
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