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overnment officials grappling with the nationwide opioid crisis, from the sandy beaches of Florida to the far reaches of the Alaskan frontier, have filed lawsuits against drug companies at a steady clip this year. These suits seek to hold manufacturers and distributors financially responsible for the strain on public services that drug addiction has caused.

Now local officials in West Virginia — the state with the nation’s highest drug death rate — have taken aim at a different target: the medical experts who recommended their use. This past week the cities and towns of Huntington, Charleston, Kenova, and Ceredo filed a class-action lawsuit against the Joint Commission, the influential nonprofit that both inspects hospitals’ performance and sets practice standards for their physicians. Hospitals must abide by the group’s standards, on opioids or anything else, in order to get reimbursed for care provided to Medicaid and Medicare patients.

The lawsuit claims the nonprofit — responsible for accrediting more than 20,000 health organizations nationwide — has spread “misinformation” about the risks of opioid addiction dating back to the early 2000s, including in published materials underwritten by opioid manufacturers.

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And experts say the lawsuit could pave the way for many other municipalities to follow in West Virginia’s footsteps.

“Opioids are killing a generation of West Virginians,” Ceredo Mayor Paul Billups told STAT. “It’s had a tremendous impact. It appears that a number of medical providers were relying on directives from the Joint Commission that caused an increase on the number of opioids on the market.”

The lawsuit centers on the Joint Commission’s pain management standards, first issued in 2001, and the alleged cozy financial ties the nonprofit had with pharmaceutical firms. According to the lawsuit, the nonprofit produced materials that downplayed the evidence “that addiction is a significant issue when persons are given opioids for pain control.” It also says that similar materials claimed that patients who used opioids rarely became addicted, even though that was underpinned by scant evidence.

And those standards were developed in collaboration with the very drug makers positioned to profit from them, the suit alleges. Dr. Gary Franklin, a neurology professor at the University of Washington and vice president of state regulatory affairs for the advocacy group Physicians for Responsible Opioid Prescribing, said the research supporting the original standards was “developed in collaboration with University of Wisconsin” pain researchers who accepted drug company funding while pushing the industry’s agenda.

Industry involvement also went beyond the standards. In the early 2000s, pharmaceutical firms — including Purdue Pharma, maker of OxyContin — underwrote educational Joint Commission programing and paid for its own events to train hospital physicians about the accreditation standards, the lawsuit said. Even after the Food and Drug Administration warned Purdue in 2003 about overstating OxyContin’s effectiveness in ads, the Joint Commission kept producing materials that urged doctors to treat patients until they were “free from pain.” According to the lawsuit, the pattern continued for years, leading to the promotion of pain as the “fifth vital sign” in articles, as well as published education materials funded by Janssen Pharmaceuticals, maker of Duragesic, a skin patch that contains fentanyl.

The Joint Commission declined STAT’s request for an interview, but a spokesperson said in a statement that the nonprofit is “deeply troubled by a lawsuit that contains blatantly false accusations that have been thoroughly debunked.”

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‘It’s not a lawsuit I would’ve brought’

This latest tack signals a new chapter in the legal war brewing around the opioid crisis. Earlier this year, West Virginia settled suits against a pair of drug distributors for a combined $36 million; a collection of the state’s cities and counties have since taken wholesalers and pharmacy owners to court. Following West Virginia’s lead, a coalition of about three dozen state attorneys general have launched an opioid investigation that’s earned comparisons to the tobacco litigation of the ’90s.

“This is just the beginning,” said Dr. Andrew Kolodny, executive director of PROP, which is not involved in the lawsuit. “They’re going to start to get named more frequently. Other complaints are going to include the Joint Commission.”

But Paul Hanly, a New York-based attorney helping local governments sue opioid makers in five states, doesn’t think the lawsuit “advances the ball” beyond sending a symbolic message. He sees two key limitations of the legal strategy. First, he said the Joint Commission — which made nearly $13 million in 2015, leaving it with total assets of $147 million, according to nonprofit filings — lacks the deep pockets of pharmaceutical industry. He’s also skeptical that a judge will “substitute his or her non-expert opinion for what purportedly is the consensus of physician and hospital groups” involved with the Joint Commission.

“Let me put this way: I’ve been doing this for a very long time, and it’s not a lawsuit I would’ve brought,” Hanly said.

Former Mississippi Attorney General Mike Moore, a pioneer of the tobacco litigation who’s now advising states to sue drug companies, sizes up the accreditor suit as follows: “The state cases now in litigation — the strongest, most compelling cases — are the A-team; the city and county cases suing the manufacturers and distributors are the B-team; the C-team is the investigations from the other attorneys general. Cases like this one fall into rank after that.”

“Having said that,” Moore noted, “it’s important that innovative trial lawyers come up with new and novel ways to solve this problem. I don’t know if it’ll succeed or not — after all, I was told my tobacco suit wouldn’t succeed.”

A cautionary tale

The attorneys filing the class-action suit point to end goals beyond just financial ones. Ultimately, they say, they hope that nearly a dozen hospitals in their region — perhaps more depending on what other governments join the suit — will no longer be forced to choose between keeping their accreditation or prescribing fewer opioids. Two lawyers behind the suit, Scott Damron and Paul Ellis, the city attorneys with Huntington and Charleston respectively, told STAT in a statement that stronger control over prescribing practices would be a “choke point” for reducing future addiction.

“There hasn’t been a focus on The Joint Commission in part because few municipalities have the depth of understanding of the opioid problem that we do in West Virginia and in part because The Joint Commission is a not for profit entity,” they wrote. “But being not for profit does not allow you to overwhelm our communities with addiction.”

This past summer the Joint Commission announced it would issue new pain management standards. Those revisions – which urge hospitals to identify high-risk patients, embrace prescription drug monitoring programs, and help train doctors to refer at-risk patients to addiction treatment programs – won’t go into effect until 2018.

Gary Mendell, founder of Shatterproof, a national advocacy group pushing to improve substance use disorder treatment, believes that placing the spotlight on the Joint Commission through these lawsuits will remind the nation that drug companies aren’t the only groups potentially culpable in the opioid crisis. In his mind, the nonprofit offers a cautionary tale of what happens when the medical practice is influenced by giant drug companies.

“Accrediting agencies need to be held accountable to the families who’ve lost loved ones and the health care costs of those suffering from an opioid use disorder,” Mendell told STAT. “This will change behavior, not only for this situation with opioids, but for other drugs in the future.”

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  • It’s about time! JCAHO has given itself the power to dictate medical care to physicians, and it is high time they understood that this means having the same level of accountability as doctors. The obsession with tracking pain scores, and treating all pain as aggressively as possible, was driven as much by JCAHO as by any other entity, and their role in the current crisis needs be be addressed.

  • verified DWC injury mid 2001, medical service’s denied by Zurich NA the only treatment offered mask injury with Pain Management. Now! banned medications by provider No! supplemental medical practice’s offered to Permanently disabled persons left to miserable hourly existence. No more best medical practice System of do no harm, here is the new Third World Order of America senior’s .

  • MY DAUGHTER died last year July from fentanyl patch and pills and over pain meds. Prescribed by her doctors. And now my daughter is DEAD. She live in Alexandria Virginia my daughter was only 33 years old

  • Patients would need to request Tylenol IV if they are in a hospital and don’t want opioids IV. They might be eligible for a couple of doses that will tide them over in an acute pain situation.
    When my daughter was pregnant w her first child, she developed painful kidney stones. The doctor suggested morphine, but my daughter insisted on IV Tylenol. It worked well and the hospital staff was amazed at my daughter’s pain tolerance without opioids.
    When she later was pregnant with twins, she had to be admitted for premature contractions and they tried to give morphine again; again she refused. We asked if they had done any studies on the long term effects (prone to addiction ?) on the children/teenagers who were given morphine in utero, and they had no answer, no studies, so my daughter did not want to take the chance. She took no pain meds at that time.
    Again for a third time she was urged by a doctor to take morphine , after the safe delivery of the twins ( one by csection) several weeks later, but she refused …and requested IV Tylenol… because she knew it worked for her and did not have addictive qualities . She practically had to beg for the IV Tylenol when she needed a second dose later in the day, as the doctor again recommended morphine…to a nursing mother who was trying to protect herself and babies from the risk of taking an addicting drug, when there is a non addicting drug that worked for her. The doctor finally listened to her, but made her feel like she was doing something illicit …asking for Tylenol!
    We later learned Tylenol IV is “expensive,” but nothing compared to the cost of addiction, which we have seen first hand in a loved one.
    Patients/families need to stand up for themselves against opioids being pushed on them, whenever possible. I say this as a health professional and mother.

  • This is exactly my predicament. I had 3 back surgeries in 7 months in 2012. The 1st surgeon messed up my first 2 surgeries which left me with permanent nerve damage. Without opiates it feels like gasoline has been poured on my legs and feet and set on FIRE! Trust me I have been to 5 different attorneys in attempt to sue but I do believe the mass tort law keeps anyone from taking my case even though there is medical negligence. So I’m left with an opiate addiction. I really can’t go for treatment because I have to take opiates for chronic pain. I currently take 150mg of methadone.

  • Dear Max,
    Please help me.
    call me at 928-207-6569
    My son Randy died on April 9, 2017
    I’m interested in finding a lawyer to help sue the drug companies and AZ Ahccss, a dentist and Northwest Hospital in Tucson. Please help me. thanks

    • Seriously? How pathetic. You really think your ship has come-in, don’t you? If your son died, it was because he was a drug addict. Where were you when he needed your help? Given your pathetic plea, I suspect you only showed-up when you think you can cash-in on his misfortune! Reality Check: You can only obtain a judgment if there was negligence on the part of a provider; not if the negligence was yours….

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