The answer is yes, and the mechanism through which that exposure arrives is expanding.
The civil opioid litigation that has produced multi-billion-dollar settlements from pharmaceutical manufacturers, distributors, and pharmacy chains has not, in its primary form, targeted individual physicians as defendants. The public nuisance and negligence claims that state and local governments have brought are directed at institutional actors whose conduct operated at a scale that produced community-wide harm. An individual prescriber, however prolific their opioid prescribing, is not typically among the defendants in the governmental litigation.
That observation requires immediate qualification. Individual physicians face civil exposure in the opioid context through several distinct mechanisms that are separate from the governmental litigation and that are proceeding alongside it with increasing frequency.
Wrongful Death and Personal Injury Claims
Families of individuals who died of opioid overdoses, and individuals who suffered addiction or other harm from opioid prescriptions, may bring civil claims against the prescribing physician for negligence, medical malpractice, or other state law theories. The elements of a negligence or malpractice claim against a prescriber require proof that the prescriber had a duty to the patient, that the prescriber breached the standard of care applicable to their specialty, that the breach caused the patient’s injury, and that the injury produced damages.
Opioid prescribing malpractice claims have been litigated with increasing frequency as plaintiffs’ attorneys have developed expertise in the standards of care applicable to opioid prescribing and in the evidence necessary to establish causation between a specific prescription and a specific harm. The physician who prescribed opioids to a patient who subsequently died of overdose is not automatically liable for malpractice, but the physician whose prescribing departed from applicable standards of care in ways that contributed to the patient’s opioid dependence and ultimate death is a physician whose conduct is within the scope of a malpractice claim.
False Claims Act Exposure
The False Claims Act creates civil liability for physicians who submit, or cause to be submitted, false claims to federal healthcare programs including Medicare and Medicaid. A physician whose opioid prescriptions were billed to Medicare or Medicaid as medically necessary when they were not, because the prescriptions were issued outside the usual course of professional practice or without a legitimate medical purpose, has submitted a false claim within the Act’s scope.
False Claims Act cases against individual physicians have been brought by qui tam relators, typically former employees or patients with knowledge of the prescribing practices, who file sealed complaints on the government’s behalf. The government may intervene in the case and pursue it with its own resources, or may decline to intervene and permit the relator to proceed. Civil penalties under the Act include treble damages on the amount of the false claims, plus per-claim penalties that accumulate across the full volume of prescriptions submitted to federal programs.
The physician who prescribed opioids to a thousand Medicare patients whose prescriptions were medically unjustified, and who billed Medicare for office visits at which those prescriptions were issued, faces False Claims Act exposure that is calculated on the full volume of claims. The aggregate exposure in a high-volume prescribing practice can reach tens of millions of dollars before the treble damage calculation is applied.
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(212) 300-5196State Medical Malpractice Litigation
State medical malpractice litigation against opioid-prescribing physicians has developed its own body of expert testimony, clinical standards evidence, and causation theory. The Centers for Disease Control and Prevention’s clinical practice guidelines for opioid prescribing, originally published in 2016 and revised in 2022, provide a framework that plaintiffs’ experts use to establish the standard of care and to measure a specific prescriber’s conduct against it. The 2022 guidelines specifically addressed concerns that the 2016 guidelines had been applied more restrictively than intended, creating clinical challenges for practitioners managing legitimate chronic pain, but the existence of published guidelines provides plaintiffs’ experts with a reference point regardless of the specific version applicable at the time of the prescribing.
The physician who prescribed opioids in doses and durations that exceeded the CDC guidelines without documented clinical justification is a physician whose prescribing can be characterized as departing from a standard that a prominent federal public health agency published. That characterization is not legally determinative, but it is a persuasive tool in the hands of a plaintiff’s expert who is explaining to a jury why the prescribing was below the standard of care.
The Connection Between Civil and Criminal Exposure
The physician who is the subject of a DEA criminal investigation for opioid prescribing is also a physician who may face civil claims arising from the same conduct. The criminal investigation and the civil litigation are distinct proceedings, but they draw on the same factual record: the prescribing data, the medical records, the patient outcomes, and the expert opinions about the standard of care. A criminal conviction for drug distribution arising from opioid prescribing is powerful evidence in a subsequent civil malpractice or False Claims Act proceeding. A civil settlement does not prevent a criminal prosecution.
The physician who settled a medical malpractice claim arising from a patient’s opioid-related death, who paid the settlement and returned to practice, and who subsequently found themselves the subject of a DEA criminal investigation for prescribing that occurred before and after the settlement is a physician who learned that the civil resolution did not close the book. The book was still being written by the DEA’s diversion investigators, and the civil settlement’s existence was one of the chapters.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
Managing Civil and Criminal Exposure Simultaneously
The physician facing both civil claims and a DEA investigation requires counsel who understands both proceedings and who can coordinate the response to each in a manner that does not inadvertently worsen the other. A statement made in a civil deposition that is inconsistent with the physician’s anticipated defense in the criminal matter creates problems that are difficult to address after the deposition is transcribed. A production of medical records in a civil case that reveals documents the physician had not yet considered in the context of the criminal investigation raises issues that require coordination between civil and criminal defense counsel.
You learn that federal investigators want to interview you about a business transaction you were involved in.
Should you agree to speak with them?
Never agree to a federal interview without an attorney present. Under 18 U.S.C. 1001, any false statement to a federal agent is a felony. An experienced defense attorney can advise you on your rights and ensure you do not inadvertently incriminate yourself.
This is general information only. Contact us for advice specific to your situation.
The coordination of civil and criminal defense in opioid matters is a specialized practice that requires attorneys experienced in both domains working together under a framework that recognizes the interaction between the two proceedings. The physician who retains separate counsel for each matter without establishing coordination between those counsel is at risk of the kind of strategic inconsistency that serves neither proceeding.
The consultation that maps the full scope of civil and criminal exposure in an opioid prescribing matter, and that establishes a coordinated defense strategy from the outset, is the consultation that gives the physician the most complete picture of what they face and the most comprehensive framework for addressing it. That consultation is available before the DEA investigation has matured into formal charges, and the earlier it occurs, the more options it preserves.
