Why Wisconsin Counties Want Drug Companies To Pay For The Opioid Crisis

Government Lawsuits Would Push Into Uncharted Legal Territory
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Illustration by Scott Gordon; medication package label via U.S. National Library of Medicine

The opioid crisis is a grave and growing burden on local governments, in one way or another.

When dealing with the fallout of a stark increase in deaths involving opioid overdoses, municipalities lean heavily upon local emergency responders, county and state public health departments, and government and nonprofit social-service agencies. They rack up bills with private and public laboratories that conduct toxicology tests and autopsies. They invest resources in an attempt to prevent overdose deaths, buying Narcan kits and training people ranging from police officers to everyday citizens in their use

In many ways, the opioid crisis reveals how limited the public-health infrastructure in some Wisconsin communities really is — some smaller counties don't have a full-time coroner, and most rely on a handful of the most populous counties' public health infrastructure for the scientific work that takes place in the wake of an overdose death. Even at the state level, officials have limited capacity to track the spread of novel synthetic opioids.

Amid these challenges, it's not clear whether the epidemic has reached its peak. The number of deaths involving opioids has risen dramatically in Wisconsin and across the United States since the turn of the century. The state saw 614 opioid overdose deaths in 2015 and 827 in 2016, according to Wisconsin Department of Health Services data.

When it comes to public-health data, a dramatic change from one year to the next is not necessarily critical — rather, it's the long-term trend that demands scrutiny. Of course, when there is a major increase, the loss of life and damage to communities are staggering nonetheless. And even if overdose deaths were decreasing, state and local governments would still be looking ahead at a lot of costly work helping to care for people in long-term recovery from opioid use disorders — addiction is a chronic illness, requiring lifelong attention.

Given the financial costs of the opioid epidemic, a growing movement in Wisconsin and across the nation wants pharmaceutical companies to pick up the tab. The Wisconsin Counties Association is leading an effort to get county governments to join in a planned lawsuit against opioid manufacturers. Altogether, the association expects most of the state's 72 counties to eventually join the effort. Meanwhile, state officials across the U.S. are launching investigations into pharmaceutical companies' role in the crisis.

There is little doubt that prescription opioid pharmaceutical manufacturers helped plant the seeds for an explosion in drug abuse. The rise in use of these medications to treat pain in the early 21st century coincided with a sharp increase in overdose deaths and admissions for addiction treatment. In the wake of these consequences, members of the medical community have done a lot of reflecting on how doctors contributed to the opioid crisis in their eagerness to prescribe painkillers, and how drug manufacturers contributed by marketing as safe what were in fact highly addictive drugs.

Of course, prescription medication are hardly the only opioids and related drugs killing people. As the crisis deepened, more people turned to cheaper alternatives like heroin, and the market is getting bombarded with more potent ones like fentanyl, carfentanil and chemically novel synthetic opioids, many of them illicitly manufactured. The supply of illicit drugs tends to be of erratic composition and quality; people use what they can get their hands on, which means many opioid overdose deaths involve more than one substance, despite media attention that may zero in on one menacing new drug of the moment. EMS agencies, police departments, and lab workers have also become increasingly worried about accidental exposure to highly potent opioids, both in Wisconsin and around the nation, though some of those concerns may be overblown.

The boards of multiple Wisconsin counties so far have voted to join the planned lawsuit, including Marathon County. In an Oct. 20, 2017 interview with Wisconsin Public Television's Here & Now, Marathon County Board Supervisor Sara Guild explained why she supports this effort. Guild, who works in the office of U.S. Rep. Sean Duffy, R-Wausau, has some additional perspective on the opioids crisis – she worked as a pharmacy technician in Oneida between 2006 and 2010. 

"During that time, I saw firsthand what was happening with trying to get new drugs in front of our patients, and from what I'm learning in hindsight, a lot of the information that our doctors were being told during that time frame was skewed," she said. "It wasn't accurate, it wasn't upfront and honest about what the actual risks were for patients. They weren't exploring and being given the opportunities to explore alternative therapies. And because of that, patients were being directed to drugs that they didn't realize had such painful consequences."

Guild said to Here & Now that physicians prescribing opioids have acted in good faith, and comments to WSAU defended doctors as victims of unscrupulous pharmaceutical companies. However, there are doctors, in Wisconsin and elsewhere, who have faced civil, regulatory and criminal consequences for inappropriately prescribing opioids.

The cost of the epidemic to local governments goes beyond overdose deaths and criminal prosecutions, Guild said. For instance, more children are being removed from their homes because of their parents' drug problems. Moreover, local governments in this day and age tend to be cash-strapped even when there's not a public health crisis going on.

"Our foster services are overwhelmed, our jails are overwhelmed," Guild said. "We are seeing more and more costs every year with fewer and fewer resources coming from state and federal government to help us offset them."

But lawsuits like the one Marathon County plans to join will face hurdles in convincing courts to hold drug companies responsible and award damages to local and state governments. In an Oct. 17, 2017 interview with Wisconsin Public Radio's Central Time, University of Richmond School of Law professor Carl Tobias called this "a cutting-edge area of the law."

Local and state governments have banded together in the past to sue businesses over health-related actions, with lawsuits against tobacco companies at the end of the 20th century a prime example. But the role of doctors prescribing medications makes things a bit fuzzier when it comes to the opioid epidemic, Tobias said. The precedent of tobacco is relevant in that tobacco companies aggressively promoted their products while downplaying the risks.

To defend themselves in lawsuits, drug companies could point to the fact that they sold their products with Food and Drug Administration approval, but Tobias said this doesn't necessarily shield them from all legal liability. Much of the outcome of court cases might come down to figuring out what the companies knew about opioids, whether they acted with any kind of ill intent, and what specifically they told health care providers about the drugs' dangers and addictive potential.

"Part of what's going on is to see, I think, what can be found in discovery ... that would make a much stronger case," Tobias said. "But I think that there'll be some information that's pretty readily available in terms of what kind of advertising was done, how did the detail people who often go and visit doctors encourage [them] to move forward with prescriptions of opioids? There are probably many medical professionals that could testify as to the over-promotion, and you could also look at how the use has ballooned in many places. It may not be that difficult to show."

Counties and states suing opioid manufacturers will also have to show courts that they have standing — in effect, that the behavior of the drug companies actually harmed these units of government. Guild has little doubt about that outcome.

"If we have a business that is misleading consumers about the risks of what they're doing, intentionally misleading consumers, and that misleading leads to a health epidemic," she said, "that's something that needs to be addressed."

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