New Case Increases Risks of Prescribing Opioids for Chronic Pain

In April 2020 a very important case came out of the Virginia Supreme Court, which (1) increases the likelihood for plaintiffs to seek punitive damages in medical malpractice cases, and (2) highlights the risks of opioid prescribing for chronic pain. In Curtis v. Highfill, the Court found that the trial court erred in rejecting the plaintiff’s punitive damages claim, and that the question of whether the physician defendant’s actions constituted a “willful and wanton” disregard for the patient’s health and safety was a question for the jury.[1]

This opinion is significant, as historically Virginia is considered unfriendly to punitive damage claims in medical malpractice actions.  With this new opinion, physicians should be reminded that prescribing opioids for your chronic pain patients carries with it heightened risk and attention.

Curtis v. Highfill & Virginia Law

Mary Jo Curtis broke her ankle on March 6, 2011.  Dr. Highfill performed a total of three separate surgeries on Ms. Curtis’s ankle from the time she broke her ankle to November 16, 2012.  From the time of Ms. Curtis’s first surgery in March of 2011 until her accidental death on June 21, 2014, Dr. Highfill wrote Ms. Curtis 144 prescriptions for Percocet, totaling over 7,000 five-milligram pills.  In the last fourteen months of her life, Dr. Highfill failed to examine her even once, despite continuing to write her prescriptions which she personally picked up from his office almost weekly.  As a result, Ms. Curtis’s daughter filed a wrongful death action against Dr. Highfill and other parties alleging that they breached the applicable standard of care and were ultimately responsible for Ms. Curtis’s accidental overdose on a combination of oxycodone and alcohol.

At trial, Dr. Highfill was found liable for the wrongful death of Ms. Curtis and the estate was awarded $100,000 in damages.  Despite the award, the judge refused to allow the submission of certain evidence supporting a claim for punitive damages.  In turn, the estate filed an appeal with the Virginia Supreme Court arguing that punitive damages should likewise be available to the estate as sufficient evidence was presented to support such an award.

According to the Virginia Supreme Court, punitive damages are designed to warn others and to punish the wrongdoer if he or she has acted “willfully, wantonly, oppressively, or with such malice as to evince a spirit of malice or criminal indifference to civil obligations.”[2]   Books and journal articles have been written attempting to define “willful and wanton” behavior that may “evince a spirit of malice or criminal indifference to civil obligations,” but suffice it to say, one must act (or omit to act) in a manner that is significantly more severe than “simple negligence” or even “gross negligence” so as to be held to this standard.  In practice, Virginia courts have been reluctant to find this third level of negligence – the level required for punitive damages – in medical malpractice actions.  The reasons for this are beyond the scope of this memo, but in general, Virginia courts have been hesitant to find that a physician acted in conscious disregard for the life or safety of a patient.

With Curtis, the Court has signaled that it may be more willing to allow such a claim to be submitted to a factfinder (i.e., a judge or jury), at least in cases involving opioids, as physicians may be expected to know that their actions in prescribing opioids may result in imminent harm or death.  In other words, the opioid crisis is so pervasive and profound that physicians may be considered acting “willfully and wantonly” if they are found to be negligently writing opioid prescriptions.

Board of Medicine Opioid and Buprenorphine Prescriber Regulations   

As you are aware, the Virginia Board of Medicine has issued regulations that establish rules regarding the prescribing of opioids for pain treatment and buprenorphine for addiction treatment.[3]  There are specific guidelines for treating chronic pain lasting less than three months, as well as chronic pain lasting more than three months.[4]  It’s our understanding that individual Departments and/or Service Lines may have even more specific (and stringent) guidelines.  If so, please ensure that you follow these Health System policies and procedures as any deviation could unnecessarily expose you to a claim of negligence.

Conclusion

Virginia’s punitive damages statute has a cap of $350,000 per occurrence[5], and the total amount (including punitive damages) a medical malpractice plaintiff may seek in Virginia is currently $2,450,000.[6]  Despite this global cap, and despite the historical reluctance for Virginia courts to allow punitive damages in medical malpractice lawsuits, the Curtis decision highlights a national trend toward punishing physicians who abuse their prescriptive authority in opioid cases.  Please be mindful of this trend, and let us know if we can help answer any related risk management questions.

[1] Shea Curtis, Administrator of the Estate of Mary Jo Curtis v. Christopher Highfill, et al, 020-6-021 (April 9, 2020).

[2] See Giant of Virginia, Inc. v. Pigg, 207 Va. 679 (1967).

[3] See 18 VAC 85-21-10 et seq.

[4] See https://www.msv.org/sites/default/files/opioid_and_buprenorphone_guide.pdf

[5] See Code of Virginia § 8.01-38.1.

[6] See Code of Virginia § 8.01-581-15.