Who is Responsible? by Stephen Vaughn MD, PhD

Tawana Lucero died this year. That is terribly sad. She was 19 years old.

She died at a rest stop on the interstate. She died of a combined drug overdose – oxycodone, oxymorphone and alprazolam.

She was an addict. She had obtained some of her drugs by lying about her asserted medical condition of severe chronic pain.

She died while driving to a Federal court hearing in El Paso, where she faced charges of smuggling 99 pounds of marijuana from Ciudad Juárez into El Paso.

She was an international drug smuggler as well as an addict. I cannot comment on her character, as I didn’t know her personally. But she had fallen into some bad and dangerous habits during her young life, which ultimately killed her.

After she died, her estate raised the legal question of what degree of liability the pharmacy possessed in her death. She paid $1,107 for an “early” refill when it would have been free under Medicaid if she had waited three days.

Several things are obvious, the least of which is that she was not likely reporting her assets and income to obtain Medicaid services.

Her estate asserted that the pharmacy held responsible for her death because it filled the prescriptions –accurately – despite red flags of her addiction. The legitimacy of the prescription was not questioned.

Should the pharmacy have been the “last line of defense” for a suspicious prescription?

The pharmacy argued that it had done everything it was lawfully required to do, by filling her lawful prescription and checking with her doctor. The district court agreed, and dismissed.

The Appeals Court overturned the dismissal and remanded, ruling that pharmacists owe their patients a higher standard of care than simply filling a doctor’s prescription accurately – what the court called a clerical accuracy standard – but didn’t say what that standard should be.

What should the standard be? And more broadly, did the pharmacy commit a material error which contributed to her death?

Her death was due to ingestion of several substances quite dangerous when taken together. If the oxycodone was present, was it significantly contributory to her death, or can that possibly be determined?

The state Appeals Court held to an uncertain standard. The details of how the courts interpret state law is complex. Nevertheless, the patient’s behavior – obtaining a prescription for controlled substances on false pretenses, Federal drug smuggling indictments, possession of other narcotics from unknown sources – certainly indicates her propensity for making bad and deadly choices.

In the name of “Fixing The Opiate Crisis,” how much immunity do we plan to give to “patients” who are deliberately violating the law and appear to be bad guys? How many “good guys” are we planning to punish, to diminish the flow of opiates?

The CDC reports a massive international industry of supplying the US with counterfeit pills resembling oxycodone and hydrocodone pills, but containing illegal fentanyl. The actual overdosing on REAL, prescribed opiates has been holding steady, even as their utilization has increased.

Aren’t we attempting to correct a problem that isn’t even at the center of the opiate epidemic, and using absurd application of civil liability to frighten the medical providers?

And are we directing responsibility away from those who use opiates wrongfully, and pay the consequences?

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108440cookie-checkWho is Responsible? by Stephen Vaughn MD, PhD