Same Day Multiple Prescriptions
 Why is Our Government Pursuing a War on Doctors?

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Most of the debate surrounding good medical practice and effective pain management has implicated undermedicating. Parallel to this inquiry there has been much academic interest in the way criminal prohibitions and prosecution practices deter medical professionals from prescribing controlled substances for pain management. Similar disincentives could result from high risks of liability visited on doctors for overmedicating, improper diagnosis, inappropriate medication or other medication errors.

Side Effects
Actions against care providers

• Nommensen v. American Continental Ins. Co., 619 N.W.2d 137 (Wis. Ct. App. 2000). $[Lexis] $[Westlaw]
• Summary: Patient sued hospital and its insurer for medical malpractice after sustaining nerve damage as alleged result of injection of pain medication into patient’s thigh. After jury determined that hospital was negligent but that its negligence was not causal, the Circuit Court, entered judgment dismissing complaint. After patient appealed, the Court of Appeals, held that testimony that pain medication in question could cause harm even when administered properly did not represent an affirmative defense of superseding cause that hospital was required to plead affirmatively; trial court properly refused to substitute word “probability” for “certainty” in instructing jury to determine whether patient had met burden of proof to a reasonable certainty by the greater weight of evidence; and verdict satisfied five-sixths rule for jury verdicts.
• DeStasio v. Stevelman, 659 N.Y.S.2d 62 (N.Y. App. Div 1997). $[Lexis] $[Westlaw]
• Summary: Administrator of estate of patient who had been prescribed nonsteroidal anti- inflammatory drug after she complained of pain in her shoulders and ankles, and who subsequently died of anemia, asserted claims against physician who had prescribed drug and manufacturer of drug. The Supreme Court, denied defendants’ motions for summary judgment, and defendants appealed. The Supreme Court, Appellate Division, held that genuine issues of material fact as to whether drug caused fatal condition, and whether physician had been negligent, precluded summary judgment.

• Rivera v. Wyeth-Ayerst Laboratories, 121 F. Supp. 2d 614 (S.D. Tex. 2000) $[Lexis] $[Westlaw]
• Summary: Plaintiffs purchased Duract, a nonsterodial anti-inflammatory drug used for the management of pain. Defendants introduced Duract in 1997, but withdrew the drug from the market some eleven months later following reports of liver damage among its users. Held: plaintiffs sufficiently alleged claim for refund under Texas Deceptive Trade Practices Act and could bring actions for breach of warranty of merchantability, notwithstanding that purchasers did not personally suffer any liver damage, and restitution or unjust enrichment theories.
• Related issues arise in the case of likely litigation involving Oxycontin.