Opioids

In 2018, 128 people in the US died of opioid overdose everyday according to the Centers for Disease Control (CDC). In the year 2017, there were 50,018 overdose deaths related to synthetic opioids, heroine, and prescription pain killers containing natural opioids.

In 2023, on average, 217 people in the US died of opioid overdose everyday according to the Centers for Disease Control (CDC). Moreover, there were 150,000 deaths from drug overdose with around 80,000 of those deaths resulting from opioid use. However, the year 2023 marked the first year where they saw an annual decline in the number of opioid-related deaths since 2018.

Opioids are a class of narcotic pain medication used to treat moderate to severe pain. The legal implications of the American opioid epidemic have been slowly emerging over the last two years. Now, pharmacists, doctors and pharmaceutical companies are being held legally responsible for this crisis. Most insurance related issues involve product liability, specifically misleading or deceptive marketing. The legal implications and insurance risks of the opioid crisis bear paying close attention to in the future.

The most commonly prescribed opioids include Hydromorphone, Meperidine, Methadone, Morphine, Oxycodone, Codeine, and Naloxone. Opioids are a class of narcotic pain medication used to treat moderate to severe pain that doesn’t respond well to other pain medications. Most often prescribed immediately after surgery, these drugs work by binding to opioid receptors in the brain and spinal cord. They reduce the sending of pain messages to the brain, reduce bodily pain, and create a sense of euphoria.

Experts say that this epidemic stems from the habit of overprescribing pain relievers by medical professionals, influenced by misleading marketing campaigns from big pharmaceutical companies. The legal implications of the American opioid epidemic have been slowly emerging over the last two years. Now the country is asking itself if pharmacists, doctors and pharmaceutical companies are legally responsible for this crisis.

The recent influx of synthetic opioids such as fentanyl are dramatically increasing the fatality of opioid addiction. Drug deaths involving fentanyl more than doubled from 2015 to 2016, accompanied by an upturn in deaths involving cocaine and methamphetamine. Together they add up to an epidemic of drug overdoses that is killing people at a faster rate than the H.I.V. epidemic at its peak.

The recent influx of synthetic opioids such as fentanyl are dramatically increasing the fatality of opioid addiction in the last five years. However, drug deaths involving fentanyl saw a 2% decline from 2022 to 2023, and many drug overdose deaths have been involving a combination of opioids and other drugs. Similarly, overdose deaths involving heroin decreased by 33% and overdose deaths involving prescription opioids decreased by 12%.

Most insurance related issues involve product liability, specifically misleading or deceptive marketing. The legal implications and insurance risks of the opioid crisis bear paying close attention to in the future.

Background

Opioids are commonly prescribed after injury or surgery to treat moderate to severe chronic pain. The most common of this class of drugs are Oxycontin, Vicodin, codeine, and morphine, in addition to synthetic opioids like fentanyl and heroin. A person could become dependent on opioids after a few weeks of consistent use. Opioid dependencies can lead to dangerous side effects, including death. These drugs are all chemically related and interact with opioid receptors on nerve cells, relieving pain and creating a sense of euphoria. Pharmaceutical fentanyl is a synthetic opioid used to treat severe pain, commonly prescribed to cancer patients, and is 50 to 100 times more potent than morphine.

In 2023, 125 million prescriptions were written for opioids. That means that there were enough pills in circulation for each American adult to have two bottles of pills each. The cost is attributed to health care, workplace injury and productivity, and legal costs. According to the CDC, the opioid epidemic has an economic toll of $78.5 billion annually in the US. Further, the Society of Actuaries estimates that the economic impacts of the opioid crisis from 2015 to 2018 totaled $631 billion. These high financial burdens can be attributed to the costs of health care, workplace injury and productivity, and legal involvement. From 2011-2015, opioid claims charged to insurance companies grew from $72 million to $722 million.

Many argue that this epidemic is, in part, caused by medical professionals who are prescribing painkillers too freely and in doses higher than medically necessary. 94% of respondents in a 2014 survey of people in treatment for opioid addiction said they chose to use heroin because prescription opioids were “far more expensive and harder to obtain.” Nearly 80% of heroin users reported using prescription opioids first.

Drug deaths involving synthetic opioids increased 10% from 2017 to 2018, ultimately resulting in 31,000 deaths in 2018. Deaths involving synthetic opioids, along with deaths from other opioids, add up to an epidemic of drug overdoses that is killing people at a faster rate than the H.I.V. epidemic at its peak.

Solutions to opioid dependency are harder to obtain than heroin on the street. For example, Suboxone is an addiction treatment that blocks the euphoric effects of heroin and other painkillers while subduing the symptoms of withdrawal. However, most insurance policies will not cover the cost of addiction treatment drugs and, while opioids have become easier to obtain, it is harder to obtain addiction treatment drugs like Suboxone and Naxalone. As a result, while patients are being taken off an opioid prescription, those experiencing symptoms of dependency and withdrawal are more likely to turn to the street for unregulated amounts of prescription pills, fentanyl and heroin.

Injuries and Damages

Over 806,000 Americans died from opioid overdose in the past two decades. While trying to find the root cause of the opioid epidemic, some speculate that a stricter prescription writing process can hamper future loss. Others say that future advertising efforts by pharmaceutical companies should portray the reality of harm caused by opioids.

Six states, Massachusetts, Virginia, Alaska, Maryland, Florida, and Arizona, have declared a state of emergency in response to the opioid epidemic. This declaration makes these states eligible for:

• Increased access to Naxalone and Suboxone, drugs used to block the euphoric effects of opioids and minimize symptoms of withdrawal
• Enhanced surveillance of overdoses seen by doctors and in hospitals
• Mandated prescription drug monitoring programs by physicians and pharmacists
• Access to federal resources including grants for resources, programs, treatment services, and addiction prevention

In 2010 alone, doctors wrote enough prescriptions for Hydrocodone to give every American adult a one-month supply of these painkillers. In addition to that, one study found that 91% of overdose survivors were still able to get another prescription for opioids from their doctors. This brings up the question of what to do with all the patients who were put on high-dose opioids in the past. Some patients might be drug-dependent with nowhere to go while facing severe withdrawal symptoms and a heightened sensitivity to pain. These patients are high-risk for seeking synthetic drugs on the streets.

Opioid overdose cases usually have grounds for recovering damages. Most injuries relate to medical malpractice, and therefore have grounds for recovery of economic damages and actual damages.

Potential damages for opioid injuries can include:

• Medical expenses for hospitalizations and treatment
• Drug treatment costs
• Loss of productivity and wages
• Physical and mental suffering
• Funeral expenses

Causes of action can include:

• Negligence
• Fraudulent misrepresentation
• Violation of consumer protection statues
• Unjust enrichment

Legislation and Regulation

Lawmakers have attempted to pass legislation regarding what has been referred to as “the epidemic of opioid abuse” but political considerations and partisan disagreements have prevented the passage of a legislative package to completely address the problem as of the date of this publication.

H.R. 6 Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act (2018)

The SUPPORT Act was signed into law by President Trump in 2018 and aims to address treatment, prevention, recovery and enforcement of the opioid epidemic. Some of the key provisions are:

• Medicaid expansions to provide coverage for people who need opioid use disorder treatment
• Expands therapy and treatment availability 
• Telehealth expansions
• Public health research

In 2025, Congress began working to reauthorize many of the original programs that were promoted by the original SUPPORT act for the years 2026-2030.

Opioid Treatment Access Act of 2022

This bill reforms previous regulations regarding opioid use by expanding access to treatment for opioid use disorder (OUD). Key components of the act include:

• The Department for Health and Human Service will issue regulations to further increase patient access to unsupervised drug use for treatment
• The introduction of mobile medication units such that each unit does not have to be registered and more patients are able to be reached

Although the act addressed a large barrier in OUD treatment, many have raised concerns of overdose and abuse due to the expansion of unsupervised use that is potentially promoted by this act.

State legislation regarding the opioid epidemic also increased in the past few years. As of February 2019, over 33 states have regulations that set limits for opioid prescriptions.

Liability and Insurance

The insurance liability implications of the opioid epidemic vary. Most suits have involved product liability litigation. These suits range from liability claims for drugs diverted to the black market to pharmacist liability and prescription after overdose. Most claims are against pharmaceutical companies, drug manufacturers, and doctors or pharmacists, and involve product liability or medical malpractice litigation.

Drug companies are being pursued for product liability claims for drugs that divert to the black market.

Drug manufacturers and distributors are being held responsible for engaging in misleading marketing campaigns. Prosecutors have claimed that pharmaceutical companies aggressively marketed opioids to doctors, conveying that these medications are not addictive so long as the patient is in “legitimate pain.” These claims support the argument that the over-prescription of opioids have resulted in numerous patient deaths.

In addition, doctors are being held responsible for prescribing pain medication to patients that have survived an overdose, leading to a greater opioid dependency and higher risk for opioid abuse. Doctors and pharmacists have also been pursued for the death of their patients due to a non-discriminant prescription writing and distribution process. Coverage under general liability policies depends on whether there are complaints of property damage or bodily injury. Bodily injury allegations can include addiction, death or serious injuries, and circuit courts are generally split on whether or not insurance policies can apply to bodily injury lawsuits. Property damage lawsuits are generally not covered because there is not usually any tangible property which has been destroyed.

The Trump Administration has made several changes in opioid policies including coverage for adults with Opioid Use Disorder. Provisions in a recent House bill would increase the number of individuals without Medicaid which could present problems for individuals affected by OUD, as Medicaid is the primary source for coverage for individuals being treated for OUD. Specifically, Medicaid covers around 40% of the OUD population.

Another key concern is related to coverage by insurance providers for Methadone, an important medication for OUD treatment. Prior to 2018, many health insurance programs did not cover Methadone and individuals were required to pay out-of-pocket fees for treatment. However, the passing of the Substance Use Disorder Prevention that Promotes Opioid Recovery (SUPPORT) Act required state Medicaid programs to cover Methadone until September 30th, 2025, with reauthorization of the program under consideration.

Litigation

Within the past year at least 25 states, cities, and counties have filed civil cases against opioid manufacturers, distributors, and drugstores. Many have noted that these cases mirror the efforts against tobacco companies throughout the 1990s, holding big pharma accountable for rising death rates and the growing opioid, public health crisis.
In addition to civil suits, the Senate Homeland Security and Governmental Affairs Committee and the House Energy and Commerce Committee are investigating the opioid industry and its practices.

Recently, the D.C. Court of Appeals rejected arguments from Masters Pharmaceutical that would have weakened the DEA’s ability to hold companies responsible for pills that are diverted to the black market. While access to and abuse of painkillers has led to thousands of more deaths, manufacturers, distributors, and pharmacy chains argue that they cannot be held responsible for what happens to FDA-approved pain pills once they travel down the supply chain. In the cases involving product liability litigation, most pharmaceutical companies are expected to settle rather than defend themselves against a stack of lawsuits.

Newer suits have targeted some of the biggest names in the pharmaceutical industry including drug manufacturers, such as Purdue Pharma, pharmacy chains, such as CVS, and doctors. Purdue Pharma represents one of the largest opioid settlements to date.

Purdue Pharma

In March 2019, Purdue Pharma, who makes the drug OxyContin, reached a settlement of roughly $3 billion dollars after states, cities and individuals filed lawsuits against the company. State prosecutors claimed that Purdue Pharma “made billions of dollars fueling the opioid epidemic by knowingly deceiving doctors and the public about opioid abuse,” “made false claims about overdose risks, addiction risks, and palliative benefits,” and “persuaded doctors that what appeared to be addiction was actually an undertreatment of their pain and that the proper response was to increase opioid dosages.” Purdue Pharma filed for bankruptcy a few days after reaching the settlement. New litigation regarding the bankruptcy code invalidated the prior settlement, the parties went back to negotiation. In 2025, all 50 states and the District of Columbia agreed to a large settlement with Purdue Pharma for $7.4 billion.

A somewhat similar argument is being brought up in a suit against drug manufacturers and distributers: that they are knowingly misleading patients and doctors about the consequences of opioid prescription and abuse, valuing profit over people. One of the major problems with the over prescription of opioid pain killers is that their use can quickly lead to drug-dependency. When the prescription runs out and the dependency is still there, many turn to black market opioids like heroin and fentanyl.

CVS, Rite Aid, Walgreens and Giant Eagle

Up until the past few months, opioid lawsuits were focused on drug manufacturers. Now, court filings have accused major pharmacy chains of perpetuating the opioid crisis. Most recently, a lawsuit has accused CVS, Rite Aid, Walgreens and Giant Eagle of working with Purdue Pharma to “offer promotional seminars” about the safety of OxyContin, sending “letters to patients encouraging them to maintain prescriptions” of opioids, and relaxing regulations about opioid distribution. The case has been put on hold due to the COVID-19 pandemic.

In 2022, national settlements were agreed for by several of these major pharmacy chains, including CVS, Walgreens, and Walmart. The result was billions of dollars in settlements with CVS agreeing to pay $4.9 billion, Walgreens agreeing to pay $5.52 billion, and Walmart agreeing to pay $2.74 billion.

In addition to legal action taken against big pharma and pharmacies, prescribing doctors have been found liable for patient death via overdose. Doctors are increasingly being found liable when their patients overdose on prescription painkillers. Some face charges on counts of recklessness, criminal negligence, and even second-degree murder.

Major pharmacy chains, including CVS and Walgreens, are pursuing lawsuits against doctors, who they argue should be held liable for prescribing opioids. Doctors are increasingly being found liable when their patients overdose on prescription painkillers. Some face charges on counts of recklessness, criminal negligence, and even second-degree murder.

In 2015, a Los Angeles general practitioner, Dr. Hsiu-Ying "Lisa" Tseng, was convicted of murder and sentenced to 30 years to life for prescribing the opioids that led to three patient deaths. The prosecution speculated that the doctor’s motivation for prescribing these drugs was purely financial.

Most doctors see these cases as outliers, usually involving other allegations such as fraud, poor record-keeping, and criminal misconduct. Doctors have been coming up with ways to avoid allegations of misconduct by meticulously documenting their appointments, following guidelines, and checking statewide prescription drug databases. Either way, legal suits against doctors have become more common in recent years.

Johnson & Johnson

In a key case between Oklahoma and Johnson & Johnson in 2019, which resulted in the first opioid trial verdict, the Supreme Court of Oklahoma reversed the lower court’s order for J & J to pay $465 million in settlement money. This was a result of J & J being accused of violating public nuisance law and fueling the opioid addiction crisis after its aggressive and deceptive opioid marketing. Following this case, Johnson & Johnson ended up reaching a settlement of $5 billion with various states as part of a deal between opioid distributors and states nationwide.

Big Three Distributors

Similarly, in 2021, a major lawsuit resulted after three major distributors (AmerisourceBergen Drug Co., Cardinal Health Inc. and McKesson Corp.) were accused of contributing to the opioid crisis after failing to monitor the distribution of the drug. The resulting settlement also pushed the company to engage in better conduct and improve their distribution measures.

Future Outlook

While no federal agency has pursued legal action against the opioid industry, the potential is there. As of now, the Federal Department of Health and Human Services (HHS) is focusing its effort on five major priorities:

• Improving access to treatment and recovery services
• Promoting use of overdose-reversing drugs
• Strengthening public health surveillance 
• Providing support for research on pain and addiction
• Advancing better practices for pain management

While the legal action in response to the growing opioid crisis is relatively new, what the future holds is unclear. Many states have enacted laws to encourage people who witness overdoses to reach out to emergency response teams. Forty-four states and the District of Columbia have pushed forward Good Samaritan, drug immunity laws protecting doctors and pharmacists who prescribe, dispense, or administer Naxalone, from criminal, civil, or professional liability. These immunity laws also provide some protection from drug use and possession offenses when someone calls 911 for medical attention for him/herself or others experiencing overdose.

Both states and the federal government are struggling to address the opioid crisis. Questions of insurance and liability remain unclear for doctors, pharmacists and pharmaceutical companies.

The first Trump Adminstration took steps to address the opioid crisis and this is expected to continue during his second term with the focus more on targeting foreign suppliers of fentanyl and fentanyl chemicals.
With more states taking legal action against doctors, pharmacists, and pharmaceutical companies, these risks bear close attention from the insurance industry.