The West Virginia Legislature made significant progress during its session earlier this year returning balance to the state’s civil justice system. The bills passed with bipartisan support and signed into law by Gov. Tomblin should restore greater predictability to the system, while still protecting a person’s right to seek redress when they have been wronged.
Unfortunately, the state Supreme Court is taking the state back in the wrong direction.
Last week the high court, in a 3-2 decision (Workman, Davis, Benjamin in the majority; Ketchum, Loughry in the minority), issued an answer to a question in a Mingo County case that clears the way for individuals addicted to pain killers to collect damages from doctors who provided the prescriptions and pharmacies that distributed the drugs.
In this case, the addicted individuals admitted they broke laws to get the drugs, including misrepresentation, fraud, forgery, deception, doctor shopping and more. Not all of the doctors were blameless. Several operated out of Mountain Medical Center, a pill mill that was busted by the FBI. One of the three drug stores named in the suit and a pharmacist who worked there were “subject to disciplinary and/or criminal action.”
Writing for the majority, Chief Justice Margaret Workman determined there was culpability on all sides, and just because a person has become a drug addict does not mean they should not be able to recover damages because of the “tortuous conduct” of another. Workman said it’s best to let a jury sort it out.
Justices Menis Ketchum and Allen Loughry issued blistering dissents, with Ketchum arguing “criminals should not be allowed to use our judicial system to profit from their criminal activity.” Ketchum wrote that allowing criminal plaintiffs “to maintain these civil lawsuits ignores common sense and will encourage other criminals to file similar lawsuits in an attempt to profit from their criminal behavior.”
Loughry was equally perturbed and wrote: “It is simply unconscionable to me that the majority would permit admitted criminal drug abusers to manipulate our justice system to obtain monetary damages to further fund their abuse and addiction.”
This decision will encourage aggressive lawyers to round up admitted and/or convicted drug addicts to file suit against doctors, pharmacies and deep pocket drug companies. Lengthy and expensive litigation will follow, leading to the unpredictability of a jury trial or a costly settlement.
It doesn’t have to be this way.
The Legislature should pass—and after this decision likely will pass—a “wrongful conduct rule.” Thirteen states or jurisdictions already have in place a rule that bars individuals from recovering damages for injuries that result from their own criminal activity.
That does not let the unscrupulous doctors and complicit pharmacists off the hook. They’re already subject to criminal charges and license forfeiture.
West Virginia has a serious prescription drug problem requiring a multi-faceted attack, ranging from police investigations and medical board enforcements to addiction treatment and personal responsibility.
The judicial system is already jammed with drug offenders. It would be costly, not to mention peculiar, to see some of those same people working their way back through the courts at some later time blaming others for their addiction and seeking monetary damages.