Joshua S. Horton, The Joshua S. Horton Law Firm
Editor’s Note: This article was first published in Forum Magazine in the Spring of 2022. Forum is the official publication of the Connecticut Trial Lawyer’s Association. This article is being re-published with permission of both the author and the Connecticut Trial Lawyer’s Association.
The last two years have thrown more at America than she has had to endure in many years. But none were more affected than those who suffer from mental health and substance use disorder (SUD) issues.1 Opioid epidemic awareness and MDL litigation have done a great deal to curb prescription overdose deaths but have done little to address the influx of fentanyl into America’s illicit drug supply (most of which flows into this country from China via Mexican drug cartels.2
Data from the Center for Disease Control indicate that there were an estimated 100,306 drug overdose deaths in the United States during the 12-month period ending in April 2021, up 28.5 percent over the same period the year before. Further, during the pandemic, suicide rates did not decline among young adults or Black, Latinx, and Native American men – populations already at risk due to disparate access to mental health and SUD treatment.3,4 the lethality of these substances was bad enough before Covid hit. But, when coupled with poor mental health resources and the negative effects of isolation, the last couple of years have created a perfect storm of deadly consequences for persons prone to addiction.
Stigma of Addicts
One particularly unseemly consequence relates to those who make their living in the SUD treatment industry. Despite addiction being recognized as a disease for the last 70 years, addicts continue to be stigmatized and ostracized by society, thereby creating the opportunity for patient brokers to enter.5 While there may be many ethical and altruistic providers, there also lies a dark shadow cast by patient brokers. These unscrupulous actors put profits before patients, often resulting in tragedy. “Patient brokers can earn up to tens of thousands of dollars a year by wooing vulnerable addicts for treatment centers that often provide few services and sometimes are run by disreputable operators with no training or expertise in drug treatment, according to Florida law enforcement officials and two individuals who worked as brokers in Massachusetts.”6 This industry remains largely unregulated, with virtually no education required to open a center. Policy makers have turned a blind eye, and there is a deplorable lack of oversight of these facilities.
Driven by a need to address this situation as well as other situations faced by persons with SUD, the American Association for Justice created a Substance Use Disorder Litigation Group. The problem of addiction faced by this nation is titanic. Addiction touches nearly every household in some form or fashion. This article details some of the types of claims the litigation group has pursued.
The stigma and criminalization that led to a lack of regulation governing the SUD treatment industry has created a quasi-medical malpractice issue. In most states, agencies that license these entities and professionals do not require certification or degrees. Someone without a high school diploma can set up a treatment center, bill insurance companies millions of dollars, and employ medical staff with virtually no education or experience in SUD treatment. The financial incentives are enormous and malfeasance is easy to commit. This regrettable confluence often entices treatment centers to place profit over patient care. States’ licensing often occurs outside the health care setting. For example, in Florida, it is the purview of the Department of Family and Children.
Unqualified individuals are hired after gaining a few months’ sobriety because they are cheap labor, many times without a place to go. The SUD Litigation Group or Treatment Center Abuse & Mental Health Litigation Group7 is currently litigating a case in which a so-called technician literally watched a client die without recognizing a catastrophic overdose was taking place or knowing how to administer Narcan, a medication that reverses the effects of an opioid overdose. American Society of Addiction Medicine (ASAM) criteria is frequently ignored by these centers insofar as untrained individuals are allowed to provide “patient care” despite multiple relapses because the center wants to continue billing the insurance company rather than refer the patient to a more appropriate medical facility. Although these centers often employ M.D.s, most states do not recognize them as healthcare providers in this setting. Therefore, filing suit against the center and the individual actor may be possible without fulfilling state medical malpractice pre-suit requirements.8
Medical Treatment Bias
What happens in hospital emergency rooms to SUD sufferers is shocking. In my experience, the inhumane treatment they receive is appalling. If a person slits his or her wrists in a suicide attempt, hospitals are required to place a psychiatric hold for a minimum of 72 hours for observation and treatment. But a person who has just “killed” themselves with a fatal dose of opiates/fentanyl is resuscitated with Naloxone and placed back on the streets within hours of near-death with their cravings increased exponentially. Often the addict immediately obtains and takes more drugs, which does result in death the second time around. No one would accept this type of care from hospital staff for a smoker who develops lung cancer from smoking or a diabetic who continues to consume M&Ms despite what it does to their blood sugars. Yet, our society continues to condone such treatment as it relates to substance use disorder.
Other quasi-medical malpractice issues include doctors debauching their licenses out to dozens of facilities for certification purposes. It is physically impossible for these doctors to provide appropriate levels of care to the number of patients for which they claim to be providing services. Moreover, many of these doctors have virtually zero addiction medicine training. They are OB/GYNs, pathologists, pediatricians, internists, etc., purporting to treat addiction. Would you want your dentist to perform brain surgery on you? It bears repeating – the financial incentives are enormous and the malfeasance easy to commit.
Paltry Regulations Leave Open the Door to Fraud
The AAJ Substance Use Disorder Litigation Group was formed to reshape policy at a national level. The lack and insufficiency of regulation left gaping holes
for predators to step in and set up organized criminal networks. In South Florida this became known as “The Florida Shuffle.”9 It has resulted in the deaths of count- less young people because this cohort (up to age 26) still has access to parental insurance, making them a ready target for these corrupt actors. The SUD Litigation Group has litigated cases, and continues to, on behalf of these victims and is gratified that these efforts have resulted in, among other things, federal indictments, prosecution, and sentencing of these predators.
Endemic Fraud of Recovery Centers
Routinely, these young people are warehoused in designated sober homes while undergoing so-called intensive outpatient services or partial hospitalization at a partnering treatment center. The treatment center collects urine, saliva, blood, and hair to provide to laboratory facilities, which, in turn, bill the insurance companies thousands of dollars for the specimens. Frequently, the same people own the labs, treatment centers and the sober homes, creating a windfall for the fraudulent enterprises. They will provide the best insured individuals with incentives such as free housing, travel and other material offers to induce them to enter their facilities to collect on the health insurance. Unbelievably, there have even been instances of the facilities providing clients with drugs to promote relapse so they can be reshuffled back into the system at a higher level of care and cost – all of which allows these bad actors to bill insurance at a higher rate.
Other factitious business models involve these entities merely aligning themselves with one another. The treatment center will pay the sober home kickbacks for referrals, and the labs will pay the treatment center kick- backs for specimens.10 This results in extremely dangerous circumstances for the client. Rather than a treatment center motivated to improve the health and wellbeing of its clients, the incentive for relapse equates to dollar signs and often fatal or catastrophic consequences. Claims are being civilly litigated now under Joint Venture Counts, Civil RICO or their equivalents. These claims may not top the list of causes of action, but they are useful to keep in the attorney’s toolbox when building a complaint. Other actions may include deceptive business practices that an individual relied on when choosing the facility but proved to be false or misleading.
The Harsh Truth About Sexual Assault
One of the most significant harms occurring in these facilities is the high rate of sexual assault arising – as may be expected – from substandard regulation, train- ing, oversight, education and accreditation. Seventy-five percent of women in treatment programs for drug and alcohol abuse report having been sexually abused.11 Alternatively, large numbers of men and women who have been the victim of sexual assault or abuse often develop addictions and find themselves in need of treatment. The victims of rape are 13.4 times more likely to develop two or more alcohol-related problems and 26 times more likely to have two or more serious drug abuse-related problems.12 Another study of 100 adult patients with poly-toxic drug abuse found 70 percent of the females and 56 percent of the male drug abusers had been sexually abused prior to the age of 16.13 In a study of male survivors who were sexually abused as children, over 80 percent had a history of substance abuse, 50 percent had suicidal thoughts, 23 percent attempted suicide, and almost 70 percent received psychological treatment.14 And, of 100 male and female subjects receiving treatment for substance abuse, more than one-third were diagnosed with some form of dissociative disorder stem- ming from childhood sexual or physical abuse.15 In short, patients in these facilities make up a very vulnerable population.
In terms of staffing, these facilities routinely employ famous athletes, musicians, or public figures to recruit patients for their facilities. They may also hire recent “graduates” of their own inpatient programs. Clearly, this is a recipe for disaster. Placing someone new to remission from their own SUD around vulnerable clients dramatically enlarges the risk of sexual abuse and misconduct. Most individuals hired to work on site or to recruit clients likely have no formal training in SUD treatment, ethical guidelines, dual relationships or appropriate boundaries when there is a power differential in a therapeutic setting.
A Case Study
Here is one real-life example of how things can quickly go wrong. A patient – let’s call her “Amy” – was recruited by a famous public figure to enter a treatment facility. Let’s call him “Joe.” Joe was held out by the facility as having certain credentials that he did not possess. Joe was given private access to female patients in the facility’s administrative offices when no clinical staff was present, and no monitoring of these visits took place. Joe sexually assaulted Amy during these visits. The assault caused Amy to relapse and suffer PTSD. The reason given for Joe being granted unfettered ac- cess to Amy was because the facility believed Joe could persuade Amy to stay at the facility. So long as Amy remained there, the facility was able to bill Amy’s insurance company approximately $50,000 a month. Sexual assaults arising from lax supervision and regulation are all too common in this industry.
In Amy’s case, the treatment facility, like many others, had a clients’ statement of rights and descriptions of its services. The facility promised in its brochure that every client was guaranteed his or her rights “to be treated with respect and dignity,…to receive timely treatment by qualified professionals, and…to be provided humane care, [and] protection from harm….” Not only did the facility fail protect Amy from harm, the facility’s negligent hiring and retention of Joe, its failure to supervise him properly, and its inadequate response to the assault once it was reported all caused Amy harm.16
What happened to Amy is only one instance of what happens in these facilities daily. In some cases, actual human trafficking is occurring.17 This is a scourge that we must stop.
Vulnerable and Dependent Adult Claims
One of the newer causes of action available to address the injuries and damages arising in these facilities is closely aligned with those statutes used in nursing home/ elder abuse cases. In California, a dependent adult is defined as “any person between the ages of 18 and 65 who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.”18 Under Fla. Stat. 415.1111, anyone who abuses, neglects, or exploits a vulnerable adult can be held liable and may have to pay attorneys’ fees and punitive damages.
Clearly, SUD is a mental/emotional disorder that can meet these criteria. While different jurisdictions have different definitions, most fall closely in line with the one cited above. These statutes may be applied to the case of the abuse, neglect, or exploitation of the vulnerable adult. Further, most SUD sufferers have co-occurring disorders that bring them within these definitions. Facilities that recruit patients for profit, rather than for appropriate care, and that exploit insurance policies and bodily specimens may be held liable. With respect to damages, these statutes usually allow for attorney’s fees and punitive damages.
To reform policy, which we as civil litigators often do, we must begin to think outside the box with respect to SUD, the opiate epidemic, and what has been de- scribed as the Wild West by the Department of Health and Human Services. According to HHS, “the federal government has oversight of opioid treatment programs but does not have oversight authority over other levels of care – states are responsible.”19 This ultimately means that we need federal reform but until then, we must rely on our ability to litigate the laws we have at our disposal in our respective states while advocating for much needed policy reform.
The Influence of International Law
International Law Finally, the latest and most cutting-edge civil litigation in this area addresses fentanyl (and other deadly substance) shipments arriving on American soil from overseas. American drug usage and consumption (legal and illicit) is among the highest in the world by country.
Consequently, international terrorists who wish ill upon this nation need not send thousands of troops to our shorelines. All they need to do is send enough fentanyl to the U.S. so that we can wipe ourselves out!
Legislation is now being created and shopped (by a trial lawyer in Mississippi) for sponsorship that would enable civil litigators to hold foreign corporations, possibly even entire countries responsible for the devastation of what has now become the synthetic opiate epidemic. This litigation would function in much the same way as the 9/11 and other Islamic terror attack suits were fought.20 Sun Tzu instructed in his classic treatise that the art of war is painted through deception. Our enemy has gotten creative on how to attack us; it is now our time to get creative on how we use our respective skill- sets to fight back.
An Epidemic Exacerbated by a Pandemic
The U.S. is now in the grip of one of the worst epidemics in modern history – the opioid epidemic, which has been only exacerbated by Covid. How we choose to go about addressing it and holding wrongdoers account- able through the justice system may well determine the quality of the lives of hundreds of thousands of Americans, repair broken homes, and restore citizens back to being productive members of society in their respective communities. We know that anti-patient brokering laws have shined some bright, positive light in this area. But we also know that, when a light is turned on, roaches scuttle to other areas for cover. We need to root out these bad actors once and for all, not simply force them to move on. This may be one of the truly bi-partisan issues currently bringing us together. The lack of access to high-quality substance use disorder and mental health services is a pressing issue. The lights are on, the aware- ness is here and as always, trial attorneys stand on the front lines to help victims, shift policy and right wrongs. What we do with the tools we have is the question. It is no overstatement to say that an entire generation hangs in the balance.21
- Substance related disorders now encompass ten separate classes of drugs including alcohol, cannabis, hallucinates, inhalants, opiates, sedatives, hypnotics, stimulates, and several others. According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, substance related disorders are divided into two groups: substance use disorders and sub- stance induced disorders. The latter, substance induced disorders, includes intoxication, withdrawal and other substance medication induced mental disorders like psychotic disorders, depressive disorders, and neurocognitive disorders.
- https://www.dea.gov/sites/default/files/2020-03/DEA_GOV_DIR-008-20%20 Fentanyl%20Flow%20in%20the%20United%20States_0.pdf
- The AMA designated alcoholism as a “major medical problem’ in 1956 and urged that alcoholics be admitted to general hospitals for care,” marking the acceptance among the medical profession of the disease concept of alcoholism. Over the years, the U.S. Supreme Court has looked to AMA policies and amicus briefing to establish that alcoholism is a disease; https://www.ama-assn.org/delivering-care/public-health/court-listened- ama-defining-alcoholism-disease-not-crime. The most vulnerable populations are further stigmatized by the bridling of addiction with behaviors having criminal consequences. ”[Sixty] to 80% of individuals incarcerated in this country can be diagnosed with substance use disorder…To add insult to injury, the government then takes away this individual’s ability to reintegrate by creating the stigma of being a felon; thereby limiting access to education, housing, employment, and many other resources that are detrimental to successful reintegration. This judicial jug- gernaut puts a revolving door on the prisons and creates guaranteed repeat business for those invested in the incarceration industry.” Joshua S. Horton, Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives (Aug. 23, 2017), 53 Crim. L. Bull. (2018).
- Fla. Stat. § 766.106 (2022)
- Lisa Riordan Serville, et al., Florida’s Billion-Dollar Drug Treatment Industry Is Plagued by Overdoses, Fraud, WWW.NBCNEWS (Jun. 25, 2017), https:// www.nbcnews.com/feature/megyn-kelly/florida-s-billion-dollar-drug-treatment-industry-plagued-overdoses-fraud-n773376
- David Segal, In Pursuit of Liquid Gold, WWW.NYTIMES.COM, https://www. nytimes.com/interactive/2017/12/27/business/urine-test-cost.html
- L. M. Nejavits, et al., The Link between Substance Abuse and Post-traumatic Stress Disorder in Women: A Research Review, 6 Am. J. Addict., 273, n. 4 (1997)
- Dean G. Kilpatrick & Ron Aciemo, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, 16 J. Trauma. Stress 119, n. 2 (2003)
- K.T. Mueser, et al., Trauma, PTSD and the Course of Severe Mental Illness: An Interactive Model, 53 Schizophrenia Research 123 (2002)
- David Lisak, The Psychological Impact of Sexual Abuse: Content Analysis of Interviews with Male Survivors, 7 J. Trauma. Stress, 524, n. 4 (1994)
- C. A. Ross, et al., Dissociative Comorbidity in 100 Chemically Dependent Patients, 43 Hospital and Community Psychiatry 840, Subsection 8 (1992)
- S. E. Ullman, et al., Perspective Changes in Attributions of Self-Blame and Social Reactions to Women Disclosure of Adult Sexual Assault, 26 J. Inter- pers. Violence 1934 (Aug. 2010)
- Federal Bureau of Investigation, Sober Home and Drug Treatment Center Owner Sentenced, WWW.FBI.GOV, (Feb. 21, 2018) https://www.fbi.gov/ news/stories/florida-sober-home-owner-sentenced
- CA Welf & Inst Code § 15610.23 (a) (2021)
- U.S. Dept. of Health & Human Services Response to H. Comin. on Energy & Commerce Letter (Sept. 12,2017), https://republicans-energycommerce.house.gov
- Lawrence Hurley, U.S. Top Court Rules Iran Bank Must Pay 1983 Bomb Victims, WWW.REUTERS.COM, (Apr. 20, 2016) https://www.reuters.com/article/us-usa-court-iran-idUSKCN0XH1R6
- Vice News, The Generation Lost to the Opioid Crisis, (Jul. 16, 2018), https://newsvideo.su/video/9058697