This unchecked mass tort deal making has bulldozed legal process into a forum for mass settlements at the cost of legitimacy.
In 1980, a letter was published in the New England Journal of Medicine stating, quite correctly, that patients prescribed opiates such as morphine in hospital for acute, serious pain did not become addicts once they left hospital. This was important, because American doctors at the time were reluctant to prescribe such drugs even to patients for whom they were indicated for fear of turning them into addicts. Thus opiates were denied to those dying in severe pain, a cruel absurdity.
The letter had unintended and unforeseen consequences. It was used, more than a decade and a half later, to justify the prescription of strong synthetic or semi-synthetic opioids to patients suffering from chronic backache or arthralgia. Even minimally experienced doctors should have been able to distinguish between patients with acute pain and chronic pain. They should have been able to recognize that the two are very distinct; but, for a number of reasons, many American doctors failed to do so. This failure helped to turn the United States into by far the largest consumer of opioids per capita in the world.
Last year, 49,000 Americans died of opioid overdose, or (more accurately) opioid-related overdose, since in most cases the opioids were taken in conjunction with other drugs. The opioids were the necessary, if not the sufficient, cause of death, for the other drugs, easily available with or without prescription, would not have caused death if taken on their own. It is therefore reasonable to ascribe the 49,000 deaths to opioids. Since 1999, 350,000 Americans have died of such overdoses.
American Overdose: The Opioid Tragedy in Three Acts is an account of this disaster by the Guardian newspaper’s Washington correspondent, Chris McGreal, with a special focus on West Virginia, one of the states most affected by the epidemic. Indeed, the author takes West Virginia as a microcosm of the United States, the more readily comprehensible due to its small population.
The book is ill-written, reading like an extended but not very carefully crafted newspaper article in the weekend supplement of a serious newspaper. But it is nevertheless interesting both in what it says and what it omits to say.
Where Does Responsibility Lie?
The author is clear about the many villains of the piece. They are:
- the Purdue pharmaceutical company, which aggressively and deceitfully marketed its long-acting semi-synthetic opioid, OxyContin, to doctors as being both safe and effective in cases of chronic pain;
- the doctors who prescribed the drug in vast quantities to patients without regard to their clinical need and as a means of making money for themselves very quickly;
- the foolish, intellectually irresponsible or downright corrupt pain specialists who promoted opioids as the answer to chronic pain;
- the drug-wholesaling companies that maintained supplies of the drug to pharmacies that were doling out huge quantities of the drug obviously out of keeping with the pharmacies’ size; the pharmacists who failed to question the prescriptions of doctors who were prescribing the drugs to hundreds of patients a day;
- the medical licensing boards whose members closed their eyes to malpractice;
- the local police chiefs and district attorneys, who shielded wrongdoing;
- the regulatory agencies, especially the Food and Drug Administration, that, as a result of a toxic mix of incompetence and susceptibility to influence-peddling, failed to perform their duty to protect the public;
- and the U.S. Congress, many of whose members (on both sides of the aisle) were beholden to the pharmaceutical industry for campaign contributions.
Specifically absolved from any responsibility whatever, and therefore absent from the list, are those who took the drug or drugs that killed them.
The author draws an analogy between opioids and tobacco. I think, for number of reasons, that the analogy is unilluminating, inasmuch as the main beneficiary of tobacco sales had for a very long time been the government that licenses its sale, and no one (not even the most ardent consumer) has believed for very long time that smoking is other than extremely harmful to health. By contrast, the government has not been the main financial beneficiary of sales of OxyContin, whose sales benefited from a successful campaign to have pain recognized as the so-called fifth vital sign (along with blood pressure, pulse and respiration rate, and temperature)—a campaign that carelessly or dishonestly erased the fundamental distinction between a sign and a symptom, the former being observable to a third party, the latter being a report by the patient of something subjectively experienced.
Of course, all drugs must be prescribed on the basis of risk-benefit to the patient; no drug is entirely safe. But no one would suggest abandoning penicillin because of occasionally fatal hypersensitivity reactions, the medical value of the drug being so obvious. The case of OxyContin is different, however. Its benefits (if any) were grossly exaggerated and its harms grossly underestimated by its manufacturer, and the licensing authority, the FDA, was slack to the point of negligence in seeking evidence of either benefit or harm. The story is a lamentable one of collective failure.
Users Do Have Moral Agency
However, underlying this book is an Animal Farm mentality: that is to say, four legs good, two legs bad. Those with two legs—the manufacturers, the wholesalers, the doctors, the licensing authorities—are bad, while those with four legs, the people who actually took the drugs, are good. What the author does not see is that this attitude dehumanizes the victims completely, even if his two-legged people were as bad as he says they were (and as I think they were).
Over and over again, McGreal denies any personal responsibility to the people who took the drugs. He regards addiction straightforwardly as an illness, something that strikes in the same way as, say, Parkinson’s disease. (This is the line peddled by the egregious National Institute on Drug Abuse, the federal institution that somehow managed to congratulate itself on its successes and increase its funding while hundreds of thousands died on its watch, an absurdity beyond the range of satire.)
According to the author, the drug is the active partner in the transaction between it and the person who takes it. He—the person—is “hooked” on it and has no choice in the matter. He is assumed to be totally ignorant of the effects of the drug and to be as incapable of resisting its initial siren call as of stopping it once he has started taking it. When he seeks out a clinic where the doctor does not see him and where prescriptions are written without any investigation of his condition whatever, and people are lined up around the block to get in, he is supposed by the author to be so lacking in the attributes of human consciousness as to notice nothing and therefore to conclude nothing. In other words, he is not really a human being at all, but a robot.
It is true that most of the people (by no means all) who take the drug are in difficult circumstances. They are often uneducated, unskilled and unemployed, with very poor prospects. But if difficult circumstances (such as most of us experience in one form or another, at one time or another) excused rather than extenuated our behavior, then we could be held to no standards at all and could rightfully be placed under tutelage for our own good. Those, therefore, who encourage victims to think of themselves as victims and nothing but victims encourage them to remain in a prison of their own construction.
Paving the Way for Fentanyl Dealers
Though McGreal may not realize it, he thinks of the people who take OxyContin as a different species of being from himself. Somehow these are individuals incapable of lying or of special pleading; he accepts uncritically the stories of both victims and their relatives, as if they were the truth, the whole truth, and nothing but the truth.
It seems very difficult for people to hold in their minds simultaneously that corporations, public authorities, and individuals can behave badly. The desire to absolve individuals of their responsibility stems from a reluctance to admit that victims play any part in their own downfall: Victims are either immaculate or they are not victims at all. To recognize this as a false dichotomy is to lack compassion, and we all want to be seen to be compassionate.
Meanwhile, the epidemic has expanded beyond its origins. As prescriptions for OxyContin and other opioids have finally declined in number, so the black market value of these drugs increased and provided an opportunity first for heroin dealers, and then for fentanyl dealers, to take up the baton. American Overdose ends on a pessimistic note: like many others, the author thinks the epidemic will continue or grow worse. I am not so sure. Epidemics such as this, for reasons not always understood, wane as well as wax. But then there is usually something else around the corner.