Fentanyl lawsuit alleges doctor should never have prescribed pain patch to woman with substance abuse history

by Jim Orr

The Supreme Court of New Jersey has ruled that Judy Komlodi is entitled to a new trial of the medical malpractice lawsuit she is pursuing on behalf of Michelle, her incapacitated daughter, against Dr. Anne Picciano of JFK Medical Center. Komlodi v. Picciano, 217 N.J. 387, 89 A.3d 1234 (N.J. 2014). Michelle Komlodi suffered a fentanyl overdose after being prescribed the pain patch, leading to severe brain injury and other permanent disabilities.

The New Jersey high court ruled that the trial court erred by instructing the jury to consider whether Michelle’s injuries from an overdose caused by the Duragesic fentanyl pain patch were due to a “preexisting disease or condition.” According to the Supreme Court, the proper question for the jury was not whether Michelle’s “pre-existing” alcoholism or depression caused her injuries, but whether Michelle’s negligent conduct (misusing the patch) after the doctor’s negligence (prescribing fentanyl to a patient suffering from depression and known to abuse drugs and alcohol) was a “superseding or intervening act” that broke the chain of causation between the doctor’s negligent act and the plaintiff’s injuries. The court remanded the case for a new trial with proper jury instructions.

The lawsuit concerns the treatment of Michelle Komlodi by Dr. Picciano at an outpatient and behavioral health clinic. Michelle was thirty-one and complaining of back pain and suffered from depression, anxiety, and drug and alcohol addiction. Dr. Picciano prescribed fentanyl skin patches to help alleviate Michelle’s lower back pain. However, Dr. Picciano had treated Michelle for many years as a primary care physician and was aware of her long-term history of substance alcohol and drug abuse and her history of depression.

While drinking heavily, Michelle ripped open a fentanyl patch with her teeth and swallowed the medication. This resulted in suppressed respiratory function and anoxic brain injury, causing severe and permanent disabilities. The lawsuit filed by Michelle’s mother alleged that it was foreseeable to the doctor that Michelle would misuse the patch by deliberately applying the gel to her mouth or gums, or use the patch while consuming alcohol.

The trial court charged the jury on “preexisting disease or condition”—known in New Jersey as a Scafidi charge, after the decision in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990). A “preexisting disease or condition” charge is typically used in medical malpractice cases in which progressive diseases, such as cancer, are not properly treated or timely detected and thus the measure of damages is the patient’s lost chance of recovery. For example, the physician who fails to timely detect a progressive disease, such as cancer, is only liable for the damages caused by the increased risk of harm resulting from her negligence.

When a patient is treated for a preexisting condition and a physician’s negligence worsens that condition, it may be difficult to identify and prove the precise injury caused by the physician. To address this scenario, New Jersey law provides that a jury must decide whether any negligent treatment increased the risk of harm posed by a preexistent condition and, if so, “whether the increased risk was a substantial factor in producing the ultimate result.”

Expert witness: Doctor breached standards of care by prescribing fentanyl patch

At trial in Michelle’s case, the plaintiff’s medical expert witnesses testified that Dr. Picciano breached accepted standards of medical care by prescribing to a patient, known to be abusing both alcohol and drugs, a Duragesic patch for back pain without having exhausted typical treatment modalities, such as physical therapy and anti-inflammatory medication. The plaintiff’s medical expert also maintained that Dr. Picciano deviated from those standards by prescribing the Duragesic patch to treat Michelle’s “depression, anxiety, an eating disorder, alcohol withdrawal or detox from alcohol or drugs.”

Referencing the Physician’s Desk Reference, the expert noted that “Duragesic should be used with caution in individuals who have a history of drug or alcohol abuse especially if … they are outside a medically controlled environment.” The expert opined a physician prescribing a Duragesic patch is expected to know that a patient’s misuse of the medication can cause respiratory failure and death and that the standard of care did not allow a physician to “give an addict narcotic medications that [she is] going to abuse.” The plaintiff’s medical expert concluded that Dr. Picciano’s prescribing of the Duragesic patch “was a significant contributing factor to the anoxic brain injury” suffered by Michelle.

In response, Dr. Picciano contended she did not deviate from the appropriate standard of care when she prescribed a Duragesic patch for Michelle, but even if she did, Michelle caused the harm by ingesting the patch. According to the doctor, the trial court properly gave a Scafidi charge because Michelle had a preexisting drug and alcohol addiction, and if Dr. Picciano increased the risk of harm by prescribing a powerful medication for Michelle’s “unremitting back pain,” it was Michelle’s “craving for narcotics [that] overcame the valid use of the Duragesic patch.”

The trial court determined that the jury should consider whether Dr. Picciano’s prescribing the Duragesic patch increased the risk due to Michelle’s “preexisting condition” and whether prescribing the patch was a “substantial factor” in causing Michelle’s brain injury. The jury’s answer to questions based on “preexisting condition” resulted in a judgment for Dr. Picciano. The jury did find that Dr. Picciano had deviated from accepted standards of family medical practice and that the deviation increased the risk of harm posed by Michelle’s preexisting condition. However, the jury found that plaintiff did not prove that the increased risk was a substantial factor in producing the medical condition of Michelle Komlodi. Accordingly, judgment was entered in favor of the doctor.

The New Jersey Supreme Court has granted a new trial for Michelle and her mother after determining it was error—and confusing to the jury—for the trial court to include “preexisting condition” in the charge to the jury under the facts of the case. The Supreme Court noted that a preexisting disease and condition does not involve fault on the part of the plaintiff. In this case, the defendant argued Michelle’s injuries were due to her misusing the patch. In the typical Scafidi case, the inexorable progression of a preexisting disease or condition will occur due to no fault of the plaintiff, and it is that circumstance that is to be offset against a treating physician’s negligence. Of course, a physician must take the patient as presented to her and cannot blame the patient for the preexisting condition or disease for which the patient has sought treatment.

The Supreme Court pointed out that:

Notably, defendants argue before this Court that Scafidi was appropriate because Michelle’s injury was foreseeable given her preexisting condition; yet at trial, defendants argued to the jury that Dr. Picciano could not have foreseen Michelle’s superseding/intervening actions. These inconsistent arguments strongly suggest that the charge had the capacity to confuse or mislead the jury.

The Supreme Court also found that the trial court failed to follow the rule that the law should be charged to the jury with reference to the specific facts of the case. Although a trial court should provide “a detailed factual description of the case,” the trial court failed to do so. Similarly, the preexisting condition or disease at issue should be identified in the charge and the trial court failed to do so. The case has been remanded to the trial court for a new trial, with a proper charge to the jury.

Fentanyl Patch Lawsuits at Heygood, Orr & Pearson

Heygood, Orr & Pearson has successfully prosecuted more cases involving deaths due to fentanyl products than all the other firms in the country combined. We have spent years studying fentanyl, its uses and its misuses. We have deposed hundreds of doctors, scientists and experts on the subject of fentanyl products.

In the very first jury trial by the lawyers of Heygood, Orr & Pearson against makers of a fentanyl transdermal pain patch, a Florida jury awarded a $5.5 million verdict to the family of a man who died while wearing a Duragesic/fentanyl pain patch. More recently, Heygood, Orr & Pearson obtained a $16 million verdict for the family of a Cicero, Illinois woman who died while wearing a Duragesic/fentanyl pain patch. That verdict was upheld on appeal, resulting in a payment of more than $21 million.

Fatal mistakes that our firm has seen doctors commit in prescribing fentanyl patches include:

  • Overestimating the initial dose of fentanyl patches
  • Prescribing them for acute or post operative pain
  • Prescribing fentanyl patches to opioid naïve patients
  • Prescribing fentanyl patches to patients with significant pulmonary problems
  • Prescribing fentanyl patches at the same time as other CNS depressants

If you or a loved one has experienced the tragedy of losing a family member as a result of fentanyl pain patch usage, you and your family deserve answers to your questions. If the loss was as a result of a prescribing error, you have the right to demand that the responsible healthcare provider be held accountable.

The epidemic of prescription painkiller deaths

Drug deaths in America now outnumber traffic fatalities. Overdoses of prescription painkillers (opioid or narcotic pain relievers) have more than tripled in the past 20 years, killing more than 15,500 people in the United States in 2009 alone, according to the Centers for Disease Control.

Prescription drugs linked to causing the most deaths include:

  • Opioids (painkiller) such hydrocodone (Vicodin), oxycodone (OxyContin) and fentanyl (Duragesic) patches
  • Benzodiazepines (central nervous system depressants used to induce sleep and treat anxiety) such as Alprazolam (Xanax), Diazepam (Valium)
  • Amphetamines (central nervous system stimulants used to treat ADHD and similar disorders) such as Adderal, Ridalin, and Concentra

Since 1999 there has been a 300% increase in the prescription and sale of opioid painkillers. These drugs now account for more deaths each year than cocaine and heroine combined.

Unfortunately, sometimes doctors prescribe too many of these powerful painkillers, prescribe them in dosages that are too high, or prescribe them with other drugs that can cause dangerous drug interactions. When doctors fail to follow established protocols for prescribing these drugs, drug abuse, addiction, tolerance, or overdose may be the result. The lawyers at Heygood, Orr & Pearson are committed to helping patients and their families who have been affected by doctors who irresponsibly prescribe opioid painkillers and other potentially deadly drugs to their patients.

Heygood, Orr & Pearson fights for victims of prescription drug overdoses

If you or a loved one has been the victim of overdose caused by opioid painkillers, the manufacturer of the drug—or the doctor or hospital who prescribed them—may be to blame. Many doctors who prescribe opioid painkillers to patients have little to no experience with pain management. As a result, they may prescribe drugs that are too powerful or in doses that exceed what a patient requires. Sadly, many of these physician errors lead to addictions, overdoses, or deaths that could have been prevented.

Heygood, Orr & Pearson has represented numerous patients who have suffered complications from excessive painkiller prescriptions by a doctor or hospital. The lawyers at our firm have handled more cases involving the powerful fentanyl pain patch than all other law firms in the country combined.

Our partners—Michael Heygood, Eric Pearson, and myself—have each been selected by their peers as Super Lawyers in the state of Texas* for several years in a row. Our firm has also been given the highest possible rating for law firms by the nation’s leading law firm rating service, Martindale-Hubbell.

For more information about an opioid painkiller lawsuit and to find out if you qualify to file a case, contact the lawyers at Heygood, Orr & Pearson by calling toll-free at 1-877-446-9001. You can also reach us by following the link to our free case evaluation form located on this site.


* Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2014.

by Jim Orr

Jim Orr is a licensed attorney and a partner at HO&P focusing on business and personal injury litigation. Jim was selected multiple times to the Super Lawyers List and has tried 70+ cases to verdict.