The government of B.C. is suing 40 drug companies and several pharmacies for their alleged role in propagating the opioid crisis. The complaint is that pharmaceutical firms such as Purdue knowingly understated the addictive power of drugs such as oxycontin, and that some pharmacies filled enormous numbers of prescriptions they should have known were excessive.
On that latter point, according to the Canadian Institute for Health Information, in 2016 a staggering 27.5 million opioid doses were dispensed every day in B.C. That’s nearly six doses a day for each person in the province.
The government also alleges that drug companies aggressively marketed opioids to family doctors, knowing they were less likely to understand the dangers than specialist clinicians. Millions of dollars were spent assuring Canadian physicians that the risk of addiction was less than one per cent.
The overuse this caused helped create the demand for street drugs, some of which, like fentanyl, are far more dangerous than anything previously known. Nearly 1,500 British Columbians died last year of a suspected overdose, a record high in a trend that continues upward.
Yet the challenge facing government lawyers is how to prove and quantify harm. Opioids have an important role in pain management, particularly for cancer patients. So some of those prescriptions were legitimate, and indeed essential. Which were and which were not?
Last fall, the legislature passed an enabling statute, the Opioid Damages and Health Care Recovery Act. This empowered the government to create a provincewide archive of patient harm.
This is done by matching the record of every opioid prescription filled each year with visits to family doctors and admissions to hospitals or diagnostic clinics. By sifting through these files, a picture of the damage caused by overuse of opioids emerges.
One example: A construction worker is treated for a chronic back injury with opioids, and over time develops an addiction. That shouldn’t happen. Opioids are not appropriate for long-term conditions.
Eventually, when his physician will no longer prescribe the medication, he turns to street drugs and dies alone, at home, of an overdose.
There are numerous such scenarios, and by building a composite picture on a provincewide basis, the government hopes to prove its case in court.
Purdue and the other defendants deny the allegations. They argue that if harm was done, the fault lies with health-care providers who misused these drugs. They also argue that the clinical trials used to test new medications cannot reveal every conceivable side-effect.
In the case of some new drugs, it took years and even decades for damaging outcomes to become known. And even then, the discovery was sometimes a matter of luck.
In short, the industry’s defence is that every drug poses some degree of threat, and so long as trials were properly constructed, no blame attaches.
While there is no guessing how the court case will turn out, the province can take some comfort in how comparable lawsuits in the U.S. were decided.
Massachusetts, Connecticut and Oklahoma all won settlements against Purdue on the grounds of misleading advertising by the company.
In one instance, Purdue was fined $634 million US after senior executives pleaded guilty to making false claims about the risk of addiction associated with oxycontin. They also admitted mislabelling and fraudulently promoting or marketing a drug for an unapproved use.
A larger concern is the time component. Legal commentators expect the trial to last for years, much as the province’s tobacco litigation has.
Part of this is due to industry tactics. It is in the companies’ interest to drag things out.
But those U.S. cases were settled far more quickly. Regrettably, inefficiencies in our court system, long known to exist and still not corrected, are also a contributing factor.
Here would be a good opportunity to institute reforms.
