In a 3-2 ruling this week, the West Virginia Supreme Court of Appeals ruled juries can decide if residents who have broken the law by obtaining and abusing prescription pills can sue physicians and pharmacies for their addictions.

Dissenting Justice Menis Ketchum said the ruling allows criminals “to use our judicial system to profit from their criminal activity.” Dissenting Justice Allen Loughry calls the decision “misguided.”

In eight separate civil actions in the state’s Mingo County Circuit Court, 29 individuals alleged several pharmacies and physicians negligently prescribed and dispensed controlled substances, such as Lortab, OxyContin and Xanax, causing them to become addicted. 

The individuals who filed claims were patients of the Mountain Medical Center in Williamson, W.Va. They claim they were seeking treatment for auto accidents or workplace injuries. 

The suits were filed against several different combinations of several area pharmacies and physicians. The Mountain Medical Center and its physicians were the subjects of an FBI raid which revealed violations of federal and state law for improperly prescribing controlled substances; some of the physicians pleaded guilty and served time for the federal offenses.

“Most, if not all, of the respondents admit that their abuse of controlled substances pre-dated their ‘treatment’ at Mountain Medical and even the existence of some of the petitioner pharmacies,” Chief Justice Margaret Workman wrote in the majority opinion. 

All the plaintiffs admitted to engaging in some type of illegal activity, from possession and distribution to fraud and forgery. 

However, Workman said the plaintiffs argued that the medical providers acted in concert with the pharmacies, which were well aware of the “pill mill” activities of the physicians. 

According to a footnote in the opinion, Mountain Medical Center saw approximately 175 patients per day and one physician named in the suit distributed over 355,000 prescriptions for controlled substances in West Virginia between 2002 and 2010.

The defendants said the “wrongful conduct rule” should bar them from punishment — this rule says a person may not recover damages for personal injury if the injury occurred while the person engaged in the commission of a felony.  

But the majority of the Supreme Court Justices believed the wrongful conduct rule could not apply here, as the pharmacies and physicians were at fault as well, if not more so. 

“We find that in cases where a plaintiff has engaged in allegedly immoral or criminal acts, the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries, for purposes of assessment of comparative fault,” Workman said.

Justice Ketchum disagreed with the ruling, which he said “ignores common sense and will encourage other criminals to file similar lawsuits in attempt to profit from their criminal behavior.”

In their dissents, both Ketchum and Loughry supported the adoption of the wrongful conduct rule.  

“Hard-working West Virginians” assigned to the juries of such cases will be forced to determine, Loughry said, who is the least culpable — “a drug addict or his dealer.”