Coping with the Fallout of the Opioid Crisis
By Kristen Kenst, JD, MBA
The staggering emotional and economic repercussions of the prescription opioid epidemic continue to play out on the national stage. According to a study released this month by the National Safety Council, Americans are more likely to die from accidental opioid overdoses today than from car crashes.
The group analyzed preventable injuries and deaths in 2017 and found the chances of dying by accidental opioid overdose are 1 in 96 and compared to motor vehicle crashes (1 in 103), which have long been the number one cause of preventable injuries and deaths.
More than 68 percent of all U.S. opioid overdose deaths in 2017 involved a prescription opioid, with more than 130 people dying every day from such overdoses.2 Notwithstanding the substantial loss of lives and lingering emotional turmoil for families and communities in general, there is another dimension to the opioid epidemic that is ramping up and significantly impacting the healthcare industry.
Lawsuits targeting the healthcare industry are being filed at every level of the court system, brought by cities, counties, states, labor unions, and Indian tribes. Several lawsuits have been joined together in federal court for preliminary proceedings in multidistrict litigation to achieve the aims of efficiency and economy by consolidating discovery proceedings and pretrial motions. Overseeing the litigation in Cleveland, Ohio is U.S. District Judge Dan Polster, whose initial rulings will apply to all cases.
Opioid litigation is now a rolling snowball gathering mass. What began as a lawsuit targeting the largest manufacturers of opioids now includes companies all along the supply chain of prescription painkillers, including those engaged in production, marketing and distribution. Individual plaintiffs alleging medical malpractice have filed lawsuits against physicians, pharmacists and healthcare organizations.
The potential aggregate costs of litigation are staggering, with a St. Louis jury in 2016 awarding the largest award to date—$17.6 million—to a couple who brought a case against the husband’s doctor and his employer for overprescribing opioid pain medication. The jury found that the defendants breached the standard of care by providing “chronic opioid” therapy between 2008 and 2012, causing the patient who had complained initially of lower back pain to become drug dependent. What is truly shocking about the verdict is that, of the $17.6 million, $15 million was awarded in punitive damages.
History: America’s Drug Problem
Treating acute and chronic pain has long been one of the most complex challenges in the healthcare arena. In this context, opioids like morphine were providential. The drug triggers the release of endorphins—the brain’s “feel good” neurotransmitters—diminishing perceptions of pain while augmenting feelings of well-being.
In 2001, the Joint Commission released its Pain Management Standards, which broadcast the idea of pain as a "fifth vital sign." Under the impression that much pain was undertreated, the standards required healthcare providers to ask patients about their pain levels. Consequently, the rate of opioid prescriptions grew and peaked in 2012, when 255 million opioid prescriptions were written. This translated into an eye-opening prescribing rate of 81.3 prescriptions per 100 people.3
In response to this alarming rate, several national organizations like the Centers for Disease Control and Prevention, The Joint Commission and The Centers for Medicare and Medicaid began releasing revised standards addressing pain management and opioid use in 2016. The revised standards recommended reduced opioid dosage and duration and expanded safety precautions to include “all patients,” rather than just to those who are deemed “high risk.” Broader use of technological advances such as state prescription drug monitoring programs was also encouraged. In 2017, the rate of prescriptions fell to 58.7 per 100 people—an improvement, but still alarming. In 16 U.S. counties, so many opioid prescriptions were dispensed that there was one prescription for every single person in those counties.4
The government is also taking action to halt the epidemic, providing increased funding to ferret out instances of opioid-related fraud. In June 2018, the U.S. Department of Justice filed charges against 601 people, including doctors, for illegally prescribing and distributing opioid painkillers, resulting in more than $2 billion in healthcare fraud losses.5
We are now starting to see health plans and pharmaceutical benefit managers take a more active role in combating opioid addiction. Health insurer Blue Cross Blue Shield recently announced changes to its list of covered drugs, removing OxyContin in some states and mandating “non-crushable” medications in others.6 Furthermore, retail pharmacy CVS Health Corporation is limiting opioid prescriptions to 7 days or less for certain patients with acute pain who haven’t previously taken an opioid painkiller, compared to the 20-day or more prescriptions they previously had filled.7
Combatting the Issue
With more research available on the risk of opioid addiction, the healthcare industry is now working to combat this issue with, a multi-pronged approach that involves opioid risk awareness, education and training, action and monitoring is advisable. In launching a risk mitigation strategy, healthcare entities should consider the value of forming an opioid task force.
Led by a clinical professional and staffed with physicians, nurses, pharmacists, and other patient support personnel, the task force’s objectives are to collect and analyze prescription data, identify and assess opioid-related risks, and create the means to manage these exposures to limit liability—without adversely affecting the hospital’s greater purpose of providing compassionate and consistent care.
This crucial risk mitigation strategy begins with the need to educate clinicians, staff, and especially patients about the potential misuse and abuse of opioid medications. In this regard, various steps can be taken to limit the use of such prescription medications where feasible, and to monitor patient usage and dosages over time.
Tracking patients after their release from the hospital to discern their pain levels is part of this process. In some cases, a multimodal pain plan involving short-term use of opioids followed by longer-term doses of non-narcotic medications like NSAIDS or Acetaminophen may be warranted. The use of alternative pain management treatments like physical therapy or nerve blocks may also be utilized.
Establishing targets for reducing opioid prescriptions and then measuring related progress is vital to the success of the opioid task force. In this regard, prescription monitoring can help discern inappropriate prescribing by physicians and pharmacists. To limit the possibility that doctor-prescribed regulated pharmaceuticals will be diverted to the illicit marketplace, hospitals should establish a zero-tolerance drug diversion policy that accounts for all prescriptions.
While the healthcare industry works to prevent opioid addiction, provides continue to be at risk. Healthcare insurance brokers also can play a vital role in assisting organizations with their opioid risk transfer strategies. Evaluating insurance coverages can be complicated, given recent policy language changes that relate to opioids. A wide range of insurance policies that could involve opioid-related claims, including life sciences, product liability, general liability, excess casualty, directors and officers, life and health, workers compensation and professional liability, are being scrutinized and will likely see additional changes going forward. These changes vary by line of business and by insurance carrier, making it imperative that the parties involved have a clear understanding of what is and is not covered.
Insurer specialists and attorneys also can make recommendations regarding a healthcare organization’s opioid policies and procedures to enhance risk mitigation, providing guidance on best practices, such as documenting staff education and training activities, creating plans on how opiates are managed by hospital pharmacies, and even documenting patient care.
The use of predictive data analytics and machine learning tools may also become significant resources in identifying and tracking high-risk patients and overuse of prescription opioids in a patient population.
The effects of opioid addiction are devastating on a personal level, but the significant ramifications for the healthcare industry cannot be taken lightly. Healthcare organizations across the country are working to keep up with changing standards and guidelines, and to protect themselves from litigation stemming from opioid-related exposures.
Drawing on multiple resources to help address the vulnerabilities that opioids present will enable organizations to develop a multi-faceted approach to combatting the epidemic. Creating an opioid task force composed of diverse medical professionals with various perspectives can assist in achieving a unified goal of reducing patients’ dependency on opioids while providing consistent and compassionate care. Evaluating insurance policies can further protect healthcare organizations from the uncertain liabilities arising from the opioid epidemic.
Sadly, the opioid epidemic is far from over, and in terms of the legal fallout from the number of prescription opioids distributed over the last decade… I fear that we have only seen the tip of the iceberg.
Kristen Kenst is an attorney and healthcare risk manager. She is currently Assistant Vice President of Healthcare Underwriting at insurer QBE North America.
QBE’s Integrated Advantage for Healthcare is a dedicated unit comprised of healthcare professionals in Underwriting, Claims, Risk Solutions and Product. The dedicated team applies its unique expertise and leverages the team’s over 20 years of experience in the industry to deliver specialized solutions for hospitals, physician groups, medical facilities and managed care organizations.
To learn more, visit https://www.qbe.com/us/specialty/healthcare.
About QBE North America
QBE North America, an integrated specialist insurer, is part of QBE Insurance Group Limited, one of the largest insurers and reinsurers worldwide. QBE NA reported Gross Written Premiums in 2017 of $4.6 billion. QBE Insurance Group's 2017 results can be found at www.qbe.com. Headquartered in Sydney, Australia, QBE operates out of 31 countries around the globe, with a presence in every key insurance market. The North America division, headquartered in New York, conducts business through its property and casualty insurance subsidiaries. The actual terms and coverage for all lines of business are subject to the language of the policies as issued. QBE insurance companies are rated "A" (Excellent) by A.M. Best and "A+" by Standard & Poor's. Additional information can be found at www.qbe.com/us, or follow QBE North America on Twitter.
1 This article is for general informational purposes only and is not legal advice and should not be construed as legal advice.
2 U.S. Centers for Disease Control and Prevention, “Understanding the Epidemic” https://www.cdc.gov/drugoverdose/epidemic/index.html
3 U.S. Centers for Disease Control and Prevention, “Changes in Opioid Prescribing Practices” https://www.cdc.gov/drugoverdose/data/prescribing.html
5 U.S. Department of Justice. “National Health Care Fraud Takedown Results in Charges Against 601 individuals,” June 28, 2018.
6 BCBST New Center. “Pharmacy efforts aim to further address addiction epidemic in Tennessee,” September 6,2018.
7 Dow Jones News. “CVS Health moves to limit access to opioid painkillers,” September 21, 2017.