‘Take 1,600 of these and call me in the morning’

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‘Take 1,600 of these and call me in the morning’ 

Matthew Malamud

The American Pain Foundation says opioid painkillers are effective in treating pain, are not that addictive, are safe when used as directed, and have few side effects, most of which go away after a few days.1

But Physicians for Responsible Opioid Prescribing say the jury’s out as to whether opioids—such as morphine, oxycodone, methadone, and hydrocodone—are safe and effective in treating noncancerous pain.2 They warn that patients can suffer serious side effects and become addicted to opioids with long-term use.

Nevertheless, doctors are prescribing opioids to many patients, often in large quantities and for long periods of time—enough to medicate every adult American with a typical dose of hydrocodone every four hours for a month, according to data from the Centers for Disease Control and Prevention.3

The number of corresponding overdose deaths has reached epidemic proportions. In 2008, nearly 15,000 Americans died after overdosing on opioids—more than those who overdosed on heroin and cocaine combined.4

Real pain, wrong treatment

Some 116 million adult Americans suffer from chronic pain.5 Opioids have a rightful place in the panoply of pain treatments, and they may not be getting to those who legitimately need them. But because there is an opioid overdose epidemic, lawyers need to understand how doctors are contributing to the problem.

“Doctors love routine,” said medical ethics expert Howard Brody, director of the Institute for the Medical Humanities at the University of Texas Medical Branch in Galveston. “They try to treat everyone’s pain the same when, in fact, people need very individualized attention, whether it’s for migraine headache, fibromyalgia, or arthritis. The pain is different and people have different thresholds for the amount of pain they can tolerate.”

Andrew Kolodny, president of Physicians for Responsible Opioid Prescribing, says doctors simply are misinformed about the dangers of opioids. In an editorial in The New York Times, Kolodny wrote: “For doctors to prescribe more cautiously, an accurate appreciation of risks and benefits is required. For this to happen, they need access to education and training programs that are free of industry bias. Untreated chronic pain is a serious problem. But opioids are rarely the answer.”6

Another factor to consider is where patients get opioids. States are cracking down on pain clinics that prescribe large quantities of opioids to patients, often without an examination.7

One study released earlier this year gives credence to the government’s con­cern with these so-called pill mills. Researchers at the University of Utah School of Medicine in Salt Lake City have found that patients who receive opioids from pain specialists are disproportionately at risk of overdose.8

The word “overdose” tends to bring to mind fast-living celebrities and reckless teenagers. But not everyone who is addicted to or overdoses on opioid painkillers is a freewheeling junkie.

James McKenzie of Pensacola, Fla., knows this all too well. He represented scores of people who became dependent on the opioid OxyContin, manufactured by Purdue Pharma, and his clients’ demographics ran the gamut. In 2007, the drug company pleaded guilty to fraudulently marketing OxyContin, a time-released version of oxycodone, by downplaying its addictiveness.

Some people inadvertently overdose on opioids because their physicians prescribe the wrong dose or a toxic combination of drugs. McKenzie settled one malpractice case against a doctor who prescribed OxyContin to a patient after surgery even though the manufacturer specifically had warned against its use for postsurgical pain. The patient died.

Others overdose because they aren’t made aware of the dangers of mixing opioids and other medicines or alcohol. “Something as insignificant as a cold medication taken in combination with an opioid can have a disastrous cumulative effect,” said McKenzie.

Still another reason people may overdose, said McKenzie, has to do with opioids’ effect on memory. “We’ve had clients who overdosed because they’d forgotten they’d already taken their dose and took more pills because the medication was so powerful.”

Misrepresenting patients

The American Pain Foundation, which touts itself as the nation’s largest advocacy group for pain patients, argues that doctors should be prescribing more, not fewer, opioids and continues to claim that opioids are not addictive. The group also insists that opioids have no upper-dose limit9 despite studies showing that high doses can lead to adverse events, including death.10

However, nearly 90 percent of the foundation’s $5 million in 2010 funding came from the pharmaceutical and medical device industry, including Purdue Pharma, and some board members have extensive financial ties to drugmakers, according to an investigative report by ProPublica.11

According to the report, the foundation has repeatedly sided with physicians in medical malpractice cases and drugmakers in products liability cases. For example, the foundation filed an amicus brief with the Ohio Supreme Court on Purdue Pharma’s behalf to fight a class action in which plaintiffs claimed they became addicted to OxyContin.12 In its brief, the foundation called “erroneous” the belief that prolonged use of opioids can lead to addiction. The court decertified the class.

In an amicus brief filed with the Fourth Circuit on behalf of a Virginia physician who had been convicted on 50 counts of drug trafficking, the foundation argued that the trial court failed to instruct jurors to consider in deliberations the difference between a physician acting in good faith and a drug dealer.13 The defendant doctor prescribed one patient as many as 1,600 Roxicodone pills in a single day and more than 500,000 pills over approximately three years.

The foundation warned that the conviction would deter doctors from prescribing opioids. The court agreed that the trial court erred in its jury instructions.14 The doctor was retried and convicted on 16 counts of trafficking.

“Pain is undertreated in the United States,” Brody said, “and people suffering from chronic pain ought to have organizations advocating on their behalf, but the [American Pain Foundation] has been tarred by this conflict of interest and has lost its effectiveness as advocates.”

Matthew Malamud is a Trial associate editor.


  1. Am. Pain Found., Opioids, www.painfoundation.org/painsafe/person-with-pain/medications/opioids.
  2. Michael Von Korff et al., Long-Term Opioid Therapy Reconsidered, 155 Annals of Internal Med. 325 (Sept. 6, 2011).
  3. Ctrs. for Disease Control & Prevention, Vital Signs: Overdoses of Prescription Opioid Pain Relievers--United States, 1999–2008, 60 Morbidity and Mortality Wkly. Rpt. 1487, 1489 (Nov. 4, 2011).
  4. Ctrs. for Disease Control & Prevention, Prescription Painkiller Overdoses at Epidemic Levels, (Nov. 1, 2011) www.cdc.gov/media/releases/2011/p1101_flu_pain_killer_overdose.html.
  5. Inst. of Med., Relieving Pain in America: A Blueprint for Transforming Prevention, Care, Education, and Research (June 2011).
  6. Andrew Kolodny, Opioids are Rarely the Answer, N.Y. Times (Feb. 16, 2012), www.nytimes.com/roomfordebate/2012/02/15/how-to-curb-prescription-drug-abuse/opioids-are-rarely-the-answer.
  7. Donna Leinwand Leger, States Target Prescriptions by ‘Pill Mills’, USA Today (Oct. 25, 2011), www.usatoday.com/news/nation/story/2011-10-13/pill-mill-drug-trafficking/50896242/1.
  8. Christina A. Porucznik et al., Physician Specialty and Opioid Prescribing in the Utah Controlled Substance Database 2005–2009 (2012), www.painmed.org/2012posters/poster201.pdf.
  9. Am. Pain Found., Treatment Options: A Guide for People Living with Pain 12 (Jan. 14, 2011), www.painfoundation.org/learn/publications/files/TreatmentOptions2006.pdf.
  10. Am. Pain Found., supra n. 1, at 326.
  11. Charles Ornstein & Tracy Weber, The Champion of Painkillers, ProPublica (Dec. 23, 2011), www.propublica.org/article/the-champion-of-painkillers.
  12. Howland v. Purdue Pharma L.P., 821 N.E.2d 141 (Ohio 2004); Br. amici curiae of American Pain Foundation, National Foundation for the Treatment of Pain, and the Ohio Pain Initiative, https://s3.amazonaws.com/s3.documentcloud.org/documents/279014/howland-apf-amicus.pdf.
  13. U.S. v. Hurwitz, 459 F.3d 463 (4th Cir. Aug. 22, 2006); Br. amici curiae of the American Pain Foundation, National Pain Foundation, and National Foundation for the Treatment of Pain, http://s3.documentcloud.org/documents/279024/apf-hurwitz-brief.pdf.
  14. Id.

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