The opioid crisis has had devastating impacts on Canadian communities and families. While opioids are prescribed to relieve pain, they can induce euphoria and addiction. They are also produced and obtained illegally, and many users have had overdoses.
This article looks at the recent settlement with Purdue Pharma (Canada), the maker of OxyContin, which represents the largest settlement of a governmental health claim in Canadian history. We also consider liability further down the supply chain, specifically whether doctors could be held liable for prescribing opioids where patients subsequently become addicted.
Opioids are prescribed to treat pain, but can lead to addiction and overdose
Opioids are drugs with pain-relieving properties that are prescribed to treat pain. They include oxycodone, codeine, morphine and fentanyl.
The side-effects of opioids can include inducing euphoria (feeling high), which gives them the potential to be used improperly. The use of these drugs has led to substance use disorder, or addiction, in some people. Due to habituation, the body craves the drug.
An overdose can occur when a person takes too much of an opioid. This is dangerous because opioids affect the part of the brain that controls breathing. An overdose can lead to unconsciousness and death.
There has been an increase in opioid-related harm in Ontario
According to figures from Public Health Ontario, there has been a steady increase in opioid-related harm in Ontario for more than a decade. More than 2,400 Ontarians died from opioid-related causes in 2020.
Opioid-related harm has also caused a significant burden on government health care systems. While the number of emergency department visits for opioid-related causes in Ontario was 3,628 in 2015, this number jumped to 17,052 in 2021.
Governments reach a settlement with Purdue Pharma (Canada)
In 2018, British Columbia began a class action lawsuit on behalf of all federal, provincial and territorial governments in Canada. The aim was to recover the healthcare costs that resulted from the wrongful conduct of opioid manufacturers, distributors and their consultants.
The governments alleged opioid manufacturers, distributors, and their consultants engaged in deceptive marketing practices to increase sales, which resulted in increased rates of addiction and overdose. More than 40 manufacturers and distributors were named in the class action.
On June 29, 2022, the governments reached a $150 million settlement with Purdue Pharma (Canada), the maker of OxyContin. This is the largest settlement of a governmental health claim in Canadian history. According to the Ontario Government, any award from the litigation will be invested directly into frontline mental health and addiction services.
Potential liability of others in the opioid supply chain
In addition to government claims against manufacturers, there is also a class action against major pharmaceutical companies on behalf of Canadians who were prescribed and became addicted to opioids.
People suffering from addictions have also sought to attribute responsibility to those further down the supply chain. One issue is whether prescribing doctors and dispensing pharmacists could be held liable in medical malpractice actions for the harm caused by opioids to individuals under their care.
B.C. man sues doctor after becoming addicted to opioid pain medication
In May 2020, a man sued his doctor in the Supreme Court of British Columbia for negligence in prescribing opioids. He also brought a claim against unnamed pharmacists, the College of Physicians and Surgeons of British Columbia and the College of Pharmacists of British Columbia.
Between 2013 and 2016, Mr. Homan was a patient of Dr. Nemanishen. In response to Mr. Homan’s back pain, Dr. Nemanishen prescribed opioid medication. These prescriptions continued over the years. Mr. Homan claims that he has become addicted to the opioid medication prescribed to him and that, as a result, he has sustained various physical and psychological injuries.
Mr. Homan’s claim against the College of Physicians and Surgeons of British Columbia (College) was based on a failure to warn him about the risk that his doctor’s opioid prescribing practices posed to him. He also claimed that the College was negligent in its supervision of Dr. Nemanishen, which, in turn, caused him to suffer injury.
Court strikes out claim against College
The College applied to strike out Mr. Homan’s claim against it, arguing that it disclosed no reasonable cause of action. In Homan v Nemanishen, Justice Fitzpatrick agreed with the College and struck out the claim.
Her Honour found that, in fulfilling its statutory role as the regulator of the practice of medicine in British Columbia, the College did not owe a private law duty of care to Mr. Homan. No duty of care was found to arise as a result of the provisions of the Health Professions Act, nor were there any specific interactions between Mr. Homan and the College to give rise to a duty of care.
However, as his doctor, Dr. Nemanishen did owe Mr. Homan a duty of care. It remains to be seen whether the Homan case will proceed against the doctor, and if so, whether he will be found liable for any injury suffered. This will depend on whether Mr. Homan can prove that:
- Dr. Nemanishen breached the standard of care expected of medical practitioners in the prescribing of opioid medications for pain management;
- he sustained damage; and
- the damage was caused by the doctor’s breach (if not for the negligent act, the injury would not have occurred).
Contact Tierney Stauffer LLP for Advice on Medical Malpractice Claims
At Tierney Stauffer LLP, we know how overwhelmed you may feel about the prospect of launching a medical or hospital malpractice lawsuit. If you have a valid claim against a medical practitioner or hospital, you need a strong advocate by your side to fight their insurers and lawyers. It is important that you seek prompt advice from our personal injury lawyers, who have a great deal of experience working with clients on medical malpractice claims throughout Ontario. Call us at 1-888-799-8057 or reach out online to set up a consultation today.