WV legislator passes law allows addicts to sue docs and pharmacists


Benjamin says justices followed the law in allowing addicts to sue doctors, pharmacists


West Virginia Supreme Court Justice Brent Benjamin made clear in a separate opinion Thursday that the court’s recent decision to allow people who illegally abused drugs prescribed to them to sue their doctors and pharmacists was a decision made by lawmakers during the most recent legislative session.

In a 3-2 decision filed May 13, justices ruled that just because plaintiffs have engaged in wrongful conduct, it doesn’t mean their lawsuits against doctors who prescribed them pain medication and the pharmacists who filled them should be thrown out. The case involves 29 former patients of Mountain Medical Center in Williamson, who were prescribed controlled substances and became addicted after abusing prescriptions.

Instead, it will be up to jurors to weigh their criminal conduct against the alleged negligent or wrongful conduct of the doctors and pharmacists, who claim the plaintiffs were doctor shopping, among other things.

In a concurring opinion, Benjamin wrote that his colleagues who disagreed with the majority opinion believe “we, as judges, should lock the courthouse doors to plaintiffs such as these.”

“But my colleagues miss the determinative fact which decides this case: The Legislature and the Governor already fully considered the policy issues related to a wrongful conduct rule and enacted a wrongful conduct rule for West Virginia while this case was pending on our docket. It’s that simple,” Benjamin wrote.

The new law (HB 2002), which took effect May 25, prevents those convicted of felonies from recovering damages when wrongful conduct is part of their claim.

“The principles of judicial conservatism require us to give effect to the wisdom and consideration of our sister branches of government — the branches designed to make public policy — and not to bestow upon ourselves the role of super-legislature simply because we don’t believe [lawmakers] went far enough,” the concurring opinion states.

Justices Allen Loughry and Menis Ketchum filed separate dissenting opinions.

“By summarily dismissing the wrongful conduct rule as unworkable, the majority’s decision requires hard-working West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable — a drug addict or his dealer,” Loughry wrote.

Ketchum wrote that “criminals should not be allowed to use our judicial system to profit from their criminal activity.”

Plaintiffs filed eight lawsuits, which are ongoing in Mingo County Circuit Court against Tug Valley Pharmacy, Strosnider Drug Store, B&K Pharmacies, the Mountain Medical Center and four of its physicians. The cases were put on hold until justices answered the question regarding wrongful conduct.

In 2010, the FBI raided and shut down Mountain Medical Center, after finding that controlled substances had been improperly prescribed.

“The parties to this action are difficult to like,” Benjamin wrote. Attorneys for the pharmacists and doctors portray plaintiffs as trying to profit from the negative consequences of their conduct, while plaintiffs assert that the doctors and pharmacists are nothing more than drug dealers who are profiting from the drug problem of southern West Virginia.

“One can easily understand the intuitive response simply to proclaim a pox on all of the parties’ houses in this case and lock the courthouse door,” Benjamin wrote. “In his dissent, Justice Loughry observes that there may well be no innocent victims here. Perhaps not. But I am also troubled that despite their own alleged bad acts, including criminal misconduct, defendants now seek to use the very same justice system they would deny to plaintiffs to shield themselves from such claims.

“How ironic it is that defendants claim a right for themselves that they would deny to plaintiffs.”

Read the court decision here: http://www.courtswv.gov/supreme-court/docs/spring2015/14-0144.PDF

Read the concurring opinion here: http://www.courtswv.gov/supreme-court/docs/spring2015/14-0144c.PDF

Reach Kate White at kate.white@wvgazette.com, 304-348-1723 or @KateLWhite on Twitter.

3 Responses

  1. Yep.
    I’m gonna sue Ford and GM fir making cars that go faster than the speed limit, leaving me vulnerable to tickets, manslaughter, etc.

    • WHAT A BUNCH OF BS. If the people in West Virginia are unable to read and follow the instructions on the label on the side of the bottle then maybe these people who as this Supreme court justice says “illegally abuse pain medications that are prescribed to them ” should be able to sue the the school that they went to, the teachers who failed to teach them to read, the board of education of their school, the governor of West Virginia and the states committee on initiating the quality of education required along with their parents for failing to teach them right from wrong.

      I think I’ll just try to sue my local grocery store for selling milk because when I drink it, it makes me fart.



  2. Judging from the news these days, there needs to be a full out investigations on law enforcement agencies and law makers. How can new laws and regulations be initiated when there are so many ethical questions regarding conduct and legal actions against agencies such as the DEA and FBI? Who investigates the investigators?
    Government needs some serious restructuring and it’s up to us to do the job!

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