Hard to Find the Moral High Ground in Lawsuit Against Opioid Makers

The government of British Columbia is off on another lengthy legal boondoggle as it seeks to make opioid manufacturers pay for the ongoing epidemic of opioid overdoses. It spent an […]
Published on December 10, 2023

The government of British Columbia is off on another lengthy legal boondoggle as it seeks to make opioid manufacturers pay for the ongoing epidemic of opioid overdoses.

It spent an estimated $75 to $100 million dollars to sue Dr. Brian Day for operating a private surgical clinic. That legal action started in 2009 and ended this year. But even as it was suing Dr. Day, it was also paying him and his clinic for their services to help eliminate long surgical wait lists.

Another massive lawsuit has BC trying to recover health care costs from the tobacco companies. It was initiated in 1998 and, 25 years later, is still ongoing.

One can only imagine the hundreds of millions (and perhaps more) that the BC government is spending in an effort to make some commercial enterprise with deep pockets pay for our societal problems and Canada’s abysmal health care system.

The current pursuit of Big Pharma and its marketing agents started in 2018 and, in its current search for a monetary windfall, the government of BC is asking the BC Supreme Court to certify a class action lawsuit on behalf of all jurisdictions in Canada. If the court certifies the lawsuit, then all provinces and territories could come together in one class action suit to try to recover health care costs related to the opioid epidemic. If the quest for certification fails, then each province/territory will have to launch independent legal action.

The provinces have already negotiated a settlement with one defendant. Purdue Pharma has agreed to pay $150 million which has been proclaimed the largest government health settlement in Canadian history.  But, once divided amongst all jurisdictions, it will hardly be worth the legal efforts that were invested in the case.

Meanwhile, some of the pharmaceutical companies have launched a constitutional challenge to the Supreme Court of Canada claiming it is a legal overreach for BC to recover costs on behalf of other provinces. The Court just recently agreed to hear the case.

All of this means its going to take more lawyers and more money to hold these so-called “bad actors” accountable.

So, what did these “bad actors” do?

In the late 1990s, pharmaceutical groups aggressively marketed opioid pills to doctors via one-sided presentations and dinners at fine restaurants. They said chronic pain was undertreated (it was and still is) and told doctors that they had an irrational fear of opioids. As with most drugs, the sellers likely downplayed the potential side-effects like addiction.

But Health Canada approved the addictive opioid Oxycontin in 1996. And it has always been incumbent upon individual doctors to understand when opioids are necessary, to know how they work and to evaluate their patients for signs of addiction or tendencies to become addicted. For a subset of the population, oxycontin was a legitimate and effective treatment without giving way to addiction.

All this occurred more than 25 years ago. How can these companies be held responsible for the opioid deaths that have surged 300% since 2016 when illegal fentanyl (an opioid that is 50-times stronger than heroin and 100-times more powerful than morphine) came on the scene and BC declared opioids a public health emergency?

Especially when doctors have become very stingy about prescribing any kind of opioid and 85% of all illicit drug deaths are related to the toxic contamination of drugs by illegal fentanyl that largely comes from China, not the company lab. Fentanyl is cheaper to produce and harder to detect.

It is now largely accepted that it is the toxicity of illegal fentanyl and its various analogues that is driving the parade of death that is happening in cities across Canada – not prescription pills.

BC’s Attorney General calls these efforts a “novel approach” to holding companies accountable for their alleged deceptive marketing of addictive opioids. Novel? Not really. But you can be certain that this kind of litigation will increase the price that Canadian governments, hospitals and patients pay for all prescription drugs.

The current court proceedings should also shine a bright and hypocritical light on BC’s so-called safe supply initiatives that have the government providing large numbers of free, prescription -grade and highly-addictive hydromorphone pills to opiate users in an effort to keep them away from toxic street drugs. Pills are carelessly dispensed like candy even though the drug can have the same or even greater potency than heroin.

There is also growing evidence that users are then selling their pills to others (including children and teens at schools) in an effort to obtain money to purchase more potent drugs like fentanyl.

In other words, the BC government itself is complicit in a practice that is now creating new and younger opioid addicts.

Isn’t that the same reason that it is suing the pharmaceutical companies?

 

Susan Martinuk is a Senior Fellow with the Frontier Centre for Public Policy and author of Patients at Risk: Exposing Canada’s Health-care Crisis.

 

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