I’ve always liked Pam Bondi. She’s now Florida’s Attorney General, but I became acquainted with her back around 2007, when she and I both were frequent guests on cable news and talk programs, particularly those focused on crime and justice issues. And since then, I’ve often concurred with her opinions. Not this time.
In November, Bondi’s office filed a lawsuit against CVS and Walgreens to recover untold costs which, the lawsuit alleges, the state of Florida has incurred due to addicted Floridians’ abuse of opioid prescriptions filled at those retail chains’ pharmacies. As both a psychologist and a lawyer, it was discouraging to me to see Bondi jump on what I believe to be a bandwagon of bogus blame.
Nationwide, the wave of lawsuits blaming people’s opioid abuse on pharmaceutical companies, drugstore chains, prescribers, pharmacists — everyone but the abusers themselves — is beginning to resemble the wave of lawsuits blaming cigarette manufacturers for smokers’ cancer, even smokers whose every cigarette came in a pack bearing a prominent warning of that very possibility.
Morally, I can empathize with an urge to find someone else to blame — this will be my tenth Christmas without my dad, who died of esophageal cancer after 50 years of smoking, and I can imagine it having been comfortingly distracting in the wake of that if I could’ve channeled some of my grief into righteous indignation by doing what he never would’ve done — by blaming a third party for his smoking.
And financially, I can empathize with a sense of quasi-duty, were I an attorney general, to assert an arguable claim which, if persuasive in court, could recover millions, maybe billions, of dollars for the taxpayers of my state (however, I’d personally feel a competing, compelling duty not to assert the claim if I believed that my prevailing upon it, however lucrative for my state, would be unjust).
Now, I don’t believe that Bondi would pursue a result which she believed would be unjust, so I have to conclude that her embrace of personal responsibility, which I’ve appreciated heretofore, has weakened somewhat. The simple truth is: opioid abuse is much more directly a product of personal irresponsibility than of corporate irresponsibility.
A prescription opioid is a legal, controlled substance which, if used as directed, can provide profound relief to a patient suffering from pain associated with a traumatic injury, surgery, or degenerative disease. The patient with a legitimate need for it should be able to get it, and those who legally manufacture and dispense it should be able to profit — yes, even astronomically — from their efforts.
Clinically and legally, we used to think of “addiction” as unhealthy desire — i.e., ongoing desire for something even when it’s no longer (if it ever was) healthy for a person — which might occur through no fault of that person’s if, perhaps, he/she received a prescription to relieve pain and then developed a tolerance for it (relief required increasing doses) and/or a desire for it in the absence of pain.
At the same time, clinically and legally, we used to think of “abuse” as unhealthy behavior, i.e., in this context, overusing, overdoing, or overindulging in something, which was thought to be a choice, and the abuser was thought to be personally responsible for that choice, regardless of whether he/she was “addicted.”
And when we thought about addiction and abuse in such common-sense ways, we actually had it right. The modern science of behavioral economics confirms that addicts are not slaves to the objects of their addictions. No matter how or why an addict first came to experience the object of his/her addiction, and no matter how strong his/her desire to reexperience it may be, he/she can refrain from abusing it.
He/she probably won’t be talked into refraining — the sustained-success rates of various addiction treatment protocols are terrible. He/she probably will refrain if/when he/she truly perceives the long-term costs no longer to be worth the short-term benefits of abuse (and at that point, if refraining may cause withdrawal symptoms, a medical professional should be involved).
Notwithstanding, over time, clinically and legally, we abandoned common sense and stopped differentiating between addiction and abuse, desire and behavior. We conflated them into one responsibility-absolving “disease,” and we began “diagnosing” people who overused, overdid, or overindulged in everything from alcohol and drugs to junk food to gambling, sex, even video games!
To make matters worse, as we became decreasingly inclined to assign blame to “addicted” individuals for their abusive behavior, we became increasingly inclined to assign blame for it to third parties who simply — and legally — had made the objects of “addicted” individuals’ desires available to those individuals, even indirectly.
Just as beer drinkers don’t get their beer directly from Budweiser, patients don’t get their opioids directly from opioid manufacturers; there’s always at least one, and typically more than one, intermediary — a prescriber, a pharmacy, and in some cases, a drug dealer. So, blaming the manufacturer for somebody’s abuse of an opioid is akin to blaming Budweiser for somebody’s abuse of beer.
One of the theories of liability which often gets asserted against opioid manufacturers is that they failed to fully disclose how addictive opioids are. That’s akin to blaming Nabisco for failing to fully disclose how delicious Oreos are (making them, allegedly, as “addictive” as cocaine, at least to rats). And even if an opioid user didn’t know at first how addictive it was, whoever prescribed it knew (or should’ve known).
Don’t get me wrong — I haven’t always defended pharmaceutical companies. I’ve been critical of practices such as encouraging “off-label” prescribing of psychotropic drugs to minors if those drugs have been proven safe and effective only for adults (but even there, at least one intermediary had to be involved).
So what about those intermediaries? If an intermediary knowingly provides an opioid to somebody when it’s not clinically indicated (e.g., if a physician uses his medical license essentially to deal drugs, which does happen — I’ve served as an expert in a number of such cases — or a pharmacist knowingly sells an opioid to somebody without a prescription), that intermediary is blameworthy (and a criminal!).
But blaming an intermediary like CVS or Walgreens for somebody’s abuse of an opioid when the person to whom the pharmacy sold the opioid presented a valid prescription for it is akin to blaming a convenience store owner for somebody’s abuse of beer when the person to whom the store sold the beer presented valid identification indicating that he/she was of legal age to buy it.
One of the theories of liability that Bondi’s office is asserting against CVS and Walgreens is that those retailers should have cross referenced the number of prescriptions that they were filling in certain communities with the populations of those communities, which theoretically should’ve alerted them to the fact that abuse was occurring.
That’s akin to expecting the convenience store owner to cross reference the number of cases of beer that he’s selling with the adult population of the community, and if the number of cases per capita seems high, to assume that abuse of beer is occurring. Okay, and then what? Other than continuing to require and inspect identification before each sale, what is he supposed to do about it?
Maybe local adults are buying beer for other adults, e.g., to serve at parties (granted, such could not explain a pharmacy’s high opioid sales). Maybe nonlocal adults on vacation and/or from surrounding rural areas are buying beer at that store (such could explain high opioid sales in a community). Or maybe there is in fact abuse, e.g., by local 20-year-olds with high-quality fake i.d.’s and/or by local alcoholics.
Whatever it is, here’s what it’s not: the convenience store owner’s responsibility (he has neither a moral nor a legal duty to police it). Likewise, except in cases in which either criminality or negligence (a breach of a legal duty) can be proven, opioid abuse is not the manufacturers’ responsibility, nor is it Walgreens’ or CVS’ responsibility. It’s a personal — not a corporate — responsibility.
I wish Bondi would realize that, because it’s actually good news for Floridians, and all Americans, harmed by opioid abuse. If abusers were powerless to refrain from abuse until legal actions forced major corporations to change their business models, a lot of abuse would have to continue indefinitely. But, with the power to refrain being inherent in the abusers themselves, they can begin to refrain now.
Brian Russell wanted to learn how people could live together as peacefully and prosperously as possible, so he studied what makes us tick (and got a Ph.D. in clinical psychology), how public policy keeps us in line (and got a law degree), and what motivates us to do our best (and got an M.B.A.). Then, he put theory to the test, practicing both psychology and law, starting his own small businesses, consulting with business leaders and lawmakers, and traveling the world comparing what does and doesn’t work in 40 societies. Now, he shares his expertise in people, public policy, and productivity on national television and radio, in his book, "Stop Moaning, Start Owning: How Entitlement Is Ruining America and How Personal Responsibility Can Fix It," and here on Newsmax. Learn more at DrBrianRussell.com. To read more of his reports — Click Here Now.
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