The June 13, 2019 Decision and Order of the New York Supreme Court, Appellate Division, First Department (“New York Appellate Court”) stated that the New York medical malpractice wrongful death plaintiff’s theory of liability is that the defendant doctor prescribed high-dose opioid painkillers for more than a year for the decedent, despite the fact that her medical records showed drug use and drug seeking behavior, which escalated, enhanced, or encouraged that behavior (i.e., that the defendant doctor prescribed the decedent opioids despite the fact that her medical records showed illicit drug use and opioid seeking behavior and, as a result, [the defendant doctor] enhanced and encouraged decedent’s behavior until she accidentally overdosed).
The New York Appellate Court stated “An accidental overdose is not an unforeseeable result of prescribing, or overprescribing, opioid painkillers to a patient who displays signs of addiction.” The New York Appellate Court stated, “In this case, the decedent’s procurement and use of illicit drugs were not unforeseeable in light of the indicia of addiction or misuse noted in her medical records.”
The Underlying Facts
The decedent was seriously injured as a result of a traffic collision for which she had three shoulder surgeries and was repeatedly prescribed narcotic analgesics. After her third surgery, the decedent admitted to her orthopaedic surgeon that she was taking her medications more frequently and in greater quantities than prescribed and requested additional narcotic analgesics, but the orthopedic surgeon denied her request and later informed her that he would not prescribe any further narcotic pain medication.
The decedent was treated by two other doctors before she was seen by the defendant doctor. One of those physicians diagnosed the decedent with opioid dependence, noted recent track marks, told the decedent that she was an addict, and offered to prescribe the decedent Suboxone, but she refused. The other physician prescribed oxycodone but discharged decedent from his care when she tested positive for cocaine use.
The decedent then came under the care of the defendant doctor, who refilled the decedent’s high-dose oxycodone prescription. The defendant doctor stated in his medical records for the decedent “Discuss need to lower medication. Patient actively asked for more.” The defendant doctor later began prescribing the decedent Xanax (alprazolam) for anxiety. The defendant doctor never lowered the decedent’s prescriptions for opioids below the original level and never contacted her orthopaedic surgeon. The defendant doctor continued treating the decedent and prescribing opioids and Xanax, until her death.
The New York Appellate Court held: “Because decedent’s use of illicit drugs was not unforeseeable, her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death … A determination that proximate cause must be decided by a jury in this case does not set any requirement that every doctor in the state has to become its own detective agency prior to administering a prescription for pain medication. Causation will be determined in connection with whether [the defendant doctor’s] treatment of decedent fell below the applicable standard of care, which is not at issue on this appeal … Plaintiff is not arguing that [the defendant doctor] should have acquired decedent’s medical records before he prescribed any pain medication to her. Rather, plaintiff is arguing that, at some point during his 14-month treatment of decedent, [the defendant doctor] should have collected her recent medical records or, at least, contacted her treating orthopaedist to create a treatment plan. This presents an issue for the jury.”
Halloran v. Kiri, Index 21037/15E.
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