Update: Florida Opioid Litigation: Attorney Joshua Horton Examines Substance Use Disorder
The Illness of Substance Use Disorder vs. Abusing and Misusing Controlled Substances - By Florida Opioid Litigation Attorney Joshua Horton of The Joshua S. Horton Law Firm, PA,
Update: Florida Opioid Litigation: Attorney Joshua Horton Examines Substance Use Disorder - Why Victims are Denied Justice and Treatment?
OVERDOSE DEATHS SPIKED AFTER START OF THE PANDEMIC, DRIVEN BY SYNTHETIC OPIOIDS LIKE FENTANYL
Source Common Wealth Fund:
Since COVID-19 first started upending day-to-day life for Americans in March 2020, public health officials have been sounding the alarm about a potential surge in drug overdoses.
Overdose deaths rose during the second half of 2019, and experts feared the pandemic would produce conditions that would further increase overdoses and deaths: economic shock, social isolation and increased mental health distress, and disrupted access to addiction support and medications that require face-to-face visits.
Interim reports from government agencies and researchers have suggested these fears were being realized, with provisional data from the Centers for Disease Control and Prevention (CDC) now further supporting these claims.
We are now in the second week of a trial in which the three major U.S. distributors of opioids are being called to account for the incredible damage their product wreaked in two West Virginia counties, at a time when that state found itself flooded with opioids over the previous decades. An estimated (and staggering) 80 million pills were shipped to the area over eight years.
Huntington and Cabell are seeking money to address the toll the opioid crisis has wreaked on their communities - estimated by one of their expert witnesses at $2.6 billion. The distributors say that they are middlemen who should not be held responsible for an epidemic that has killed nearly 500,000 people in the United States…Opioids resulted in the overdose deaths of nearly 500,000 people in the United States from 1999 to 2019, according to the U.S. Centers for Disease Control and Prevention. West Virginia is among the hardest hit states, recording more opioid prescriptions and overdose deaths per capita than any other in 2018, according to data from the National Institutes of Health.
Ever since grapes were crushed so wine could be consumed and opium was extracted from poppies and processed into heroin, the illnesses of addiction and alcoholism have been part of the worldwide social fabric and they have for the most part gone misdiagnosed and completely misunderstood. We all know an uncle or a grandparent who drank too much or suffered from a drug addiction or substance use disorder (SUD), who was ostracized.
We are currently battling severe epidemics on multiple fronts, from Fentanyl to SUD and opioid use disorder(OUD) to poverty and COVID-19. Large pharmaceutical companies have manufactured medications to treat all types of mental, physical, and even substance use disorders, with drugs like Opioids, Benzodiazepines, and Suboxone. These companies have been at the forefront of shredding the family fabric with an unprecedented impact on millions of Americans who have been victimized by their dependency on prescription pharmaceuticals and who now suffer from the illness of substance use disorder. Ironically pharmaceutical companies who created the problem have now manufactured drugs such as Vivitrol and Suboxone to treat substance and opioid use disorder.
The misunderstanding between the terms is exacerbated by the framing language attached; “substance abuse or misuse.” The implication is that the sufferer could somehow regain control by altering the way they ingest opioids or drink alcohol and recover some form of normalcy by becoming more responsible, while having the ability to moderate the amount of drugs, alcohol or prescribed pharmaceuticals they consume. The implication for generations has been that somehow if only the “town drunk” or “drug addict” could muster enough self-control or have enough will power to stop, then they should, and regain societal standing within their communities. The fact is that these sufferers are behaviorally messy and unmanageable individuals who have become outcasts because of how they have adversely affected their families, relatives and employers. The reality is that they can’t stop without proper help, because they are unable to quit, which results in an unfair stigmatization through the use of improper language, terminology defining the sufferer as lacking moral character and failing as a human being, and going so far as to criminalize their condition. This attitude has been baked into our understandings of the conditions of substance use disorder and alcoholism.
Addiction and the Health Care Professional
Consequently, it repulses some health care professionals (HCPs) when they have someone showing up at their emergency room in the midst of a catastrophic opiate overdose and they are able to save his life, return him to the streets within hours only to have him return the following week and have to enact live saving measures again. Or they come back to the ER in need of a “fix” feigning excruciating pain trying to convince the nurse or doctor to write a prescription for more pain medication. If that same individual came in suffering from chest pains while suffering a heart attack they would not think twice about trying to save his life and if he happened to experience additional chest pains the following week and again be forced to visit the ER, he would be given the best of care without an eyebrow being raised. The diseases of alcoholism and opioid use disorder carry with them a tremendous amount of ignorance and misunderstanding. This vulnerable group suffering from the illness of SUD and OUD is a much-maligned group in society who are often denied, avoided, forgotten and cast aside. Not all health care professionals demonstrate this kind of misunderstanding but there are others who would prefer that they become someone else’s problem. This type of attitude could and does have serious consequences resulting in a tragedy like a wrongful death or some other kind of tragic injury such as a permanent traumatic brain injury. Covid-19 has drastically increased these types of issues in the last few months due in part to the isolation. Death from intubation or death by overdose has become an all too frequent decision.
The irony is that these health care workers are often among the most impacted by these diseases because of the high level of emotional and physical stress they experience just coming to work every day along with easy accessibility to workplace prescription medications. “Studies in the United States have shown that 10%–15% percent of HCPs will misuse substances during their lifetime and rates of prescription drug abuse and addiction are 5 times higher among physicians than in the general population, with especially high rates of benzodiazepine and opioid abuse. Physicians are not the only HCPs affected by drug and alcohol abuse. A 2010 investigation by the Texas Board of Nursing found that approximately one third of all disciplinary actions taken against nurses were drug or alcohol related.”
Addiction and the Legal Professional
Health care professionals are not the only group who are affected by these diseases, rather so are all segments of society and professional groups to a lesser or greater extent. One important group is the legal community who according to a Bloomberg law article, “Lawyers Grapple with Substance Abuse More than Other Professionals: Study.” The issue is timely because the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs recently released a joint study that found that 28 percent of licensed, employed attorneys struggle with depression, 20.6 percent qualify as problem drinkers and another 19 percent suffer from anxiety — all higher rates than other professionals.”
Substance use disorder (SUD) for this group is astoundingly high and mirrors some of the same reasons that impact HCP’s: highly stressful work coupled with long hours away from family, requiring an outlet or a social release to cope with the day. Some of the same issues that exist with HCP’s exist within the legal community.
The Illness of Substance Use Disorder and Civil Justice Litigation
Stigma makes attorneys reluctant to represent addicts or alcoholics and their family/relatives even though they may have a substantial case that has merit. More often some attorneys cannot overcome their personal experience with their own substance use disorder or the drug addiction of a close family member resulting in withholding their assistance. Most lawyers refuse to recognize that it is a disease and will not even entertain the idea that substance use litigation is a viable area of law to practice because of their personal denial and inability to get past their own personal contempt. Lawyers also fear losing their bar license by disclosing their own mental health condition to the appropriate individuals.
One of the key reasons attorneys avoid this type of litigation is it can require a lot of involvement and communication with their client and family members. Additionally, attorneys have to be able to exhibit a tremendous amount of empathy, patience and understanding. Not all lawyers are as well suited as an opioid addiction lawyer to handle this type of litigation that some perceive as providing special treatment for their client.
When a person suffering from SUD comes to a treatment facility like a detox an inpatient residential treatment center or a transitional sober living home, the expectation is that the illness of substance use disorder should be treated and arrested. Unfortunately it sometimes happens that the sufferer may end up being additionally hurt, or sometimes seriously injured because of a medical misdiagnosis or improper administration of medication causing a serious health condition. If this or some other type of personal injury or negligence occurs like, improper care, insufficient security resulting in a sexual assault or battery, medical malpractice by doctors selling their licenses for credentialing purposes; for example a gynecologist being a medical director at a treatment facility with little or no education in the field of addiction medicine, then there is something shockingly wrong with that facility. The treatment industry lacks the proper regulation to make it safer, think of it as if nursing homes were allowed to run rampant and circumvent regulations because there is a stigma against getting old. More people will continue to die or seriously hurt if the industry continues to exist with minimal regulations.
Finding an attorney who will give you a legal opinion should be easy and accomplished as quickly as possible, but in reality it’s not. With these types of cases an investigation should be launched as soon as possible since evidence needs to be gathered and preserved and witnesses need to be interviewed. Interacting with the family members afterwards can be very challenging; often the family members have their own addiction issues or have been impacted by having to endure years of disappointment because of their loved ones SUD.
Understanding these dynamics becomes an important client management test for the opioid use disorder advocate in learning to communicate with empathy and understanding.
If death was the final end for the vulnerable adult or child because of medical malpractice or some other form of negligence perpetrated on the deceased by personnel employed by the health care provider, treatment center, detox or sober home living community, seeking legal advice as described above should be the families’ foremost responsibility. The only way that they can know one way or another the reasons surrounding their loved one’s passing is with the help of an attorney who specializes in this type of litigation and understands the illness. They can tell you whether or not it was negligence or just a bad outcome that was no one’s fault. This way the family can be at peace in saying goodbye to their loved one.
The Illness of Substance Use Disorder and Criminal Justice Advocacy and Reform
Arguably the greatest cause of incarceration in this country is due to substance use disorder and mental health issues. Over the past 40 years the incarceration rate has increased 700% due to the “war on drugs.” Despite this, drug overdose and substance use disorder are at all-time highs. The Controlled Substances Act of 1970 and the felonization of simple possession of these controlled substances cause irreparable damage and collateral damage in millions of lives. Still today, the most common way our society addresses SUD is through criminalization, furthering stigma and pushing citizens into a system that does not treat the substance use disorder, nor the trauma, mental disorders, and behavioral issues that are the underlying causes for the symptom of substance use disorder to begin with.
Then, to add insult to injury, this misguided policy of incarceration simultaneously removes many effective recovery options these individuals need in order to become productive members of society. They are essentially thrown into “crime college,” later to be released with felony convictions that will limit their access to education, housing, and employment. These are tools that an individual needs to successfully reintegrate to society. Even if prosecutors later lower a possession of narcotics charge to a misdemeanor the arrest will forever show as a felony arrest on this person’s record, placing a scarlet letter for all future employers and housing authorities to marginalize these individuals through background checks. As a result of taking away the basic necessities required to reenter and reintegrate into society it should not surprise the public that recidivism rates are more than 50%. It also makes for a superb business model and revenue generator. The most revealing statistic of this rate of recidivism is that most individuals are returned to jail or prison on technical violations, such as failing a drug screen for controlled substances, failure to pay fines, and/or new arrest for possession of controlled substances. This places a revolving door on jails and prisons. While the rhetoric of “tough on crime” policies is sure to garner votes, the plain fact is that the majority of our prison system is filled with nonviolent offenders. 60 to 80% of those currently behind bars qualify for the diagnosis of substance use disorder.
Of course private prison industry owners, such as the GEO Group Inc., which is based right here in Palm Beach County, sees the strategic business model of furthering and lobbying for policies which increase penalties for drug possession because without proper recovery and treatment, they are almost guaranteed to be repeat customers. These corporations are publicly traded on Wall Street and guarantee certain returns to their investors through the certainty of government payouts for their services. The way to guarantee ROI is to incarcerate and hold as many individuals as possible for as long as possible. Some of these contracts even guarantee certain levels of incarceration. These abuses by the private prison industry and the unregulated substance use disorder treatment industry frequently lead to civil litigation. These lawsuits may help create new public policy reform by holding bad actors accountable by pressuring the industry to adopt a best practice approach, not just for care and treatment but for all of the marketing techniques and patient brokering schemes employed to entice client/patients to their facilities by putting more "heads in beds."
Not only is this extremely inefficient for the American taxpayer, it is now becoming even more dangerous to those suffering from SUD as Fentanyl is being flooded into this country like never before, and Fentanyl is a complete game changer. One simple solution would be to repeal the Controlled Substances Act, reform the Act or create new legislation that would make it no longer a felony to possess a controlled substance. Even the Supreme Court has fallible logic when it comes to criminal justice advocacy and with the case law on this. Their reasoning suggests that they are not criminalizing what has been labeled as a disease for nearly 50 years; they are criminalizing the possession of the substance. This circular logic makes the condition of substance use disorder the actual crime because it requires the possession of the substance to suffer from the condition.
Secondly, the criminal justice system needs to completely reevaluate the way it addresses substance use disorder starting with the court system. We tried prohibition in the early 20th century with the passage of the 18th amendment, which prohibited alcohol sales in the United States. This is the only amendment in the Constitution that has ever been repealed (by the 21st amendment). Why? Because prohibition doesn’t work. It does not address the issue of substance use disorder and subsequently the passage of the 18th amendment created the Mafia, organized crime, and a billion-dollar black market overnight as a result. History is now repeating itself with the “war on drugs,” which has initiated the creation of synthetic opiates, international drug cartels, and unimaginable tolls on human life. It is extremely inefficient and ineffective with the result that every dollar being spent on the investigation, prosecution, and incarceration of drug and alcohol offenders is a dollar not spent on the investigation and convictions of missing children and violent offenders.
Florida Opioid Litigation Lawyer Attorney Joshua Horton of The Joshua S. Horton Law Firm, PA, in Palm Beach County Specializing in Substance Use Disorder Law, and former Director of Public Policy for the Hanley Foundation. Horton also has dual degrees including a juris doctor from Ole Miss and founded a non-profit, Southern Recovery Advocacy in Oxford, Mississippi. His work has been recognized nationally and internationally.
Sources: Thank you Hazelden Betty Ford Center and Bloomberg Law;
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