blue white and yellow pills dumped out on table

Litigation Techniques When Clients Deny Opioid Medication

Article Reviewed By Justin McMinn, JD
Justin McMinn is a lead personal injury attorney at McMinn Law Firm.


After a personal injury or car accident, people often seek medical attention and the assistance of a lawyer. There is a symbiotic relationship between the medications and treatments clients receive and the monetary damages they are awarded in litigation. While the client’s decision to abstain from opioid use doesn’t make their injuries any less serious, it does create a hole where defense can argue that the injuries may be less severe.

Attorneys must understand their client’s reasoning when choosing not to take opioids, coach their client in the importance of keeping a record of pain, and work to understand the changing attitudes toward opioids in the general population.

In this article, learn how to control and respond to arguments defense may make when a client avoids taking prescription painkillers.


Widespread Impact of Opioid Epidemic is Changing Patient Care and Attitudes

Opioids can be dangerous for multiple reasons. Their primary purpose is to relieve the perception of pain through the central nervous system. Another effect that they have on many people can be a feeling of euphoria. This effect can be highly addictive for many. It is now widely known that these drugs can be extremely habit forming.

Some forms of opioids can include:

  • Oxycodone (1): Can be administered orally with a pill or liquid form. Oxycodone is prescribed to change how patients respond to pain. (Narcotic) This is considered a habit forming drug.
  • Hydrocodone: A pain reliever. It is an opioid medication that is often combined with a non-opioid pain reliever, acetaminophen, in prescription drugs such as Zolvit, Lorcet, Generic Xodol, Norco, Lortab, Norcol or Hycet.
  • Codeine: An opioid pain reliever. Often used to reduce coughing. In some medications it can be combined with acetaminophen or aspirin.
  • Other opioids include: OxyContin, Vicodin, morphine, fentanyl.

Sometimes opioids may be referred to as narcotics, and generally means a variety of medications or substances that dull senses or relieve pain. Today, the Drug Enforcement Administration (DEA) defines narcotic as a drug containing opium, opium derivatives, and semi-synthetic opioid substitutes. The word “opioid” contains less ambiguity and is the word used by state and federal governments.

Risks of Opioid Therapy:
  • Some pain patients develop a serious, lifelong addiction to opioids. It is difficult to predict who will develop an addiction to prescription opioids. (2)
  • Opioids can cause constipation, dry mouth, nausea, vomiting, withdrawal, drowsiness, and might make driving unsafe.
  • While every patient is different, most people using opioids long-term continue to say they have moderate to severe pain.
  • Patients using opioids long-term actually may report worse pain than those using other approaches to pain management.
  • Opioids, especially at high doses, can cause patients to stop breathing and die. Taking alcohol, sleeping pills or anxiety medications increases these risks.

Not all healthcare solutions are right for everyone. There are many reasons a person may choose not to manage pain with prescription opioids. Here lawyers can look at three reasons clients may deny taking opioids as a part of their treatment plan.

When a Plaintiff Chooses Not to Take Opioids

Some patients may choose not to take opioids for fear of addiction. As the opioid epidemic has touched the lives of so many, the patient may have been affected in their personal life by abuse of prescription drugs.

According to the CDC, more than 11.5 million Americans reported misusing prescription pain medicine in 2016. (3)

They may be aware of their own risk factors for an opioid addiction. Something in their medical history says that they are not a good candidate to take prescription opioids. Whatever the reason, a client’s wish not to take prescription painkillers is a choice between them and their doctor.


Severe Limitations Placed on Opioids

Patients could be suffering from an overzealous application of the CDC’s opioid prescribing guideline. After the CDC laid out new regulations limiting the use of opioids in treating pain, physicians and pharmacists cut back on prescriptions. (3)

However, in some cases providers and insurance providers enforced the regulations overzealously. In an extreme case detailed in a meeting of the American Medical Association, a client attempted to commit suicide after a pharmacist denied filling a patient’s prescription.

Overzealous restrictions can occur at multiple levels of the healthcare system.

With doctors and providers:
In 2017(5), the Texas State Legislature gave the Texas Medical Board greater power over physicians in regulating opioid prescriptions. In order to protect public health and welfare, the legislature concluded that the Medical Board needed the power to conduct investigations of opioid prescriptions. Now the medical board can conduct investigations and discipline doctors if they find improper care. This does good for doctors who are indeed overprescribing the medication. It is possible, however, that restrictions could cause doctors to believe that their prescriptions should never go outside the CDC’s recommended use out of fear of discipline.

Limitations imposed by companies:
In order to limit their role in the opioid epidemic, pharmacy chains like Walmart and CVS have mandatory restrictions on opioid prescriptions they will fill. In addition, large pharmacy chains have their own internal set of rules often based on the CDC’s dosage recommendations. Policies like this go beyond the CDC dosage guidance which is only intended to apply to patients with no medical history of taking opioids. Some personal injury clients could have their refills unnecessarily denied or delayed due to these policies.

Fearing penalties related to overprescription of opioids, doctors have cut back. In some cases it may be too far. Talk with your client if there have been any lapses in their medical treatment that could come up in trial.


Risks of Opioids in Everyday Life

In some cases, clients may not be able to take opioids for pain relief due to work restrictions. Some jobs cannot be performed while on certain medications. An opioid prescription may impact their ability to perform essential job duties. On top of that, side effects of opioids such as drowsiness, poor coordination, or slowed reaction times could put the plaintiff or coworkers at risk.
For some plaintiffs, work is an essential part of their identity. They may feel that taking time off of work could fundamentally change them as a person. In this situation, an attorney representing their client could choose to own their decision. Perhaps the client works with children, and the cost of being unable to fill their role as caretaker could diminish their chances to a successful recovery. An attorney who is able to explain and illustrate their reasoning may be able to demonstrate to a jury the importance their work places in their ability to cope with changes to daily life and recover mentally from injuries in a workplace role cherished by them.


Framing the Narrative with Reasoning, Evidence of Injury, and Alternative Treatments

Communicate with your client openly about how defense attorneys will use the choice not to take medication to diminish the credibility of injuries. Prepare the client to speak about their decision not to take opioids during deposition, or at trial.

Communicating a Client’s Decision Making Process

The client who chooses not to take opioids should know that juries will have reason to believe that they could be money-seeking after the crash. While that isn’t the case, the plaintiff must be able to explain their decision making process in choosing to abstain from the drugs.

Evidence of Injury

Even if a client is unable to or chooses not to take opioids, they will still experience pain. The client’s decision not to take opioids may be used as evidence by defense to cast doubt on their injuries. The client should do everything they can to clearly articulate to medical professionals and in an injury journal the pain they are experiencing as a result of the crash.

Among some patients, pain is met with stoicism. Rather than acknowledge injuries, some prefer to stay strong in times of hardship. While this is admirable, it does not provide their case with evidence indicating the severity of their injuries. Patients should not minimize their injuries in resignation.

Clients must communicate clearly with their health providers about the severity of their pain. Where there is lack of medical evidence for treatment of pain, clients must know they need to establish a record of pain and discomfort to communicate their medical condition during deposition or trial.

Alternative treatments:

When opioids are not an option for clients, there are alternative ways to manage pain. Some hospitals employ psychologists who are trained in helping patients manage pain after a serious accident. Other possible pain management strategies can include acupuncture, chiropractic, meditation, yoga and CBD.


Communication with Client About Litigation Strategy

As treatment options for severe injuries change, attorneys must be aware that attitudes towards opioids and alternative pain management will evolve over time. In all things, the most important task is to maintain open and honest communication with the client.

Lawyers representing clients with the choice not to take opioids may take some of these key strategies for defense with them into litigation. In order to reach a just outcome for the client, attorneys must respond to a changing perception of opioid use.


References:

The Big List of Narcotic Drugs Reviewed by Scot Thomas, MD. Last updated July 30, 2019.

Hydrocodone and Acetaminophen (Oral Route) by IBM Microdex. Published March 1, 2020.

Opioid Overdose: Centers for Disease Control Published by the Centers for Disease Control. Last updated March 4, 2020.

“Drug and Alcohol Dependence” published January 2019 by Corey S. Davis, Amy Judd Lieberman, Hector Hernandez-Delgado and Carli Suba. This information can be accessed at sciencedirect.com.

FACTSHEET: Texas’ Oversight of Opioid Prescribing and Monitoring of Opioid Use by the Office of the Inspector General. Published March 2019. It is a publication by oig.hhrs.gov.

“Walmart to Limit Some Opioid Prescriptions to a 7-Day Supply — What Does That Mean for You?” by Benita Lee, MPH. Published May 10, 2018. This information can be accessed at GoodRx.com.