Doctor jailed for prescribing habits faces drug-dealing suit

Aug. 18, 2003 - Some experts worry that the case could set a bad precedent, but the lawyer who filed the civil lawsuit calls it a unique situation.

An Indiana doctor who pleaded guilty to seven felony counts of selling, distributing or dispensing a controlled substance could become the first physician to be held liable under the state's Drug Dealer Liability Act.

Indiana is one of 13 states that have a law aimed at repaying drug users and their families for everything from treatment and rehabilitation to emotional distress and disfigurement.

The laws, which states started adopting in the 1990s, traditionally have been used to go after people society thinks of as street dealers. For example, the wife of a man killed in a car crash with a driver under the influence of drugs sued the dealer who supplied the drugs and won $268 million. In another case, the city of Detroit won $7 million for costs it incurred treating drug-addicted inmates.

But now more than a dozen people are suing former Indianapolis family physician Randolph W. Lievertz, MD, in an effort to recover both economic and pain and suffering damages that they say they or deceased loved ones suffered because of OxyContin prescriptions the physician wrote.

Dr. Lievertz is serving a 51-month prison sentence after pleading guilty earlier this year to charges that he prescribed OxyContin to one woman in amounts that were not medically or reasonably necessary, according to the U.S. attorney for the Southern District of Indiana. In a 14-day period in November 2001, Dr. Lievertz prescribed 860 80 mg OxyContin tablets to the woman, Melinda Hawkins, according to the U.S. attorney. Hawkins pleaded guilty to unlawful trafficking and health care fraud and is also serving a prison sentence.

Lawyers for the families say Dr. Lievertz's guilty plea to the felony counts allows him to be classified as a drug dealer under the law and to be held responsible for damages, even though he was a physician with a license to write prescriptions.

13 states have drug dealer liability laws.

The Indiana statute -- similar to statutes in Arkansas, California, Colorado, Georgia, Hawaii, Illinois, Louisiana, Michigan, Oklahoma, South Carolina, South Dakota, Utah and the U.S. Virgin Islands -- says a person can recover damages from another person who knowingly distributed or knowingly participated in the chain of distribution of an illegal drug that was actually used by the individual drug user or from a person who knowingly participated in the illegal drug market if the:

  • Individual drug user's place of illegal drug activity is within the person's illegal drug market target community.

  • Person's participation in the illegal drug market was connected with the same type of illegal drug used by the individual drug user.

  • Person participated in the illegal drug market at any time during the individual drug user's period of illegal drug use.

"This is a unique case," said Indianapolis lawyer Scott Benkie, who is representing the families in the case. "This case involves a physician who was charged and pled guilty to criminal offenses, and that is what gave rise to a cause of action." Lawyers for the physician say they worry that a bad precedent could be set if Dr. Lievertz doesn't prevail.

They fear that a doctor who is not convicted of any crime also could be held liable if someone were to accuse him or her of overprescribing medication, said Roscoe Stovall Jr., an Indianapolis-area attorney representing Dr. Lievertz.

"And traditional medical malpractice insurance doesn't cover the damages," he said. "It leaves physicians stripped bare."

But the lawyer suing on behalf of former OxyContin users or their families says doctors doing their jobs have nothing to fear. "This is not some unorthodox means for trial lawyers to try to go after doctors," Benkie said. "There shouldn't be alarms that go off across the country."

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