Who's To Blame?

I've written about Derek Boogaard, chronic traumatic encephalopathy (CTE) and Toradol several times in the past in this blog. Boogaard is the National Hockey League player who died at age 28 in 2011 from a prescription drug overdose and the autopsy showed that he had CTE, which is a a degenerative brain disease seen in people with a history of multiple concussions.

The estate of Derek Boogaard on May 10 filed a wrongful death lawsuit against the NHL in the Circuit Court of Cook County, Ill. In addition to alleging that the league failed to warn Boogaard about the risks of concussions and the drug Toradol, the complaint also says the league failed to monitor the prescribing practices of team doctors in the dispensation of prescription pain killers.

This is a new twist to the professional athlete lawsuit trend and in particular those brought by National Football League players against the league seeking compensation for CTE and the mis/over-use of Toradol.

Boogard's estate alleges, essentially, medical malpractice at the direction of the NHL and the teams Boogaard played on.

Some of the allegations:

1. After fracturing his tooth during a fight in October 2008, Boogaard received 19 Vicodin prescriptions from nine different physicians, dentists, trainers or staff with the Minnesota Wild. According to the complaint, he received a total of 432 pills for the fractured tooth.

2. On April 14, 2009, Boogaard underwent nasal surgery and was prescribed 40 pills of oxycodone. On April 21, 2009, he had shoulder surgery and was prescribed an unknown number of oxycodone pills.

3. During the 2008-2009 season, Minnesota Wild team doctors wrote Boogaard more than 40 prescriptions for more than 1,000 narcotic painkillers, the complaint says.

4. Boogaard sought treatment for an opioid addiction in September 2009 at an inpatient facility in California and enrolled in the league’s mandatory substance abuse and behavioral health program and aftercare program. He was told to refrain from taking opioids in the future, and that he could be suspended or kicked out of the league if he relapsed.

5. In the summer of 2010, after he signed a contract with the New York Rangers, Boogaard started asking team trainers for Ambien and Vicodin. According to the complaint, while Boogaard was supposed to refrain from taking painkillers and Ambien under the league's substance abuse policy, New York Rangers doctors wrote him five prescriptions for hydrocodone and 12 prescriptions for Ambien or a generic equivalent.

6. Boogaard relapsed in 2011 and was placed in an inpatient facility in California after he showed up for practice so impaired that he could not stand up. While he was in treatment for the second time, Boogaard made plans to attend his sister's graduation from college.

While his doctor advised him not to attend and the league was aware of this, it did not provide Boogaard a chaperone or explain to him the risks of leaving the treatment facility in California, according to the complaint. Boogaard was released from the facility on May 12 and was found dead the next day. The cause of death was an accidental drug overdose.

Besides the jurisdictional challenges that the Boogaard case faces, the allegations of intentional delivery of narcotics not only plays off the current national consternation over opioid abuse and physician prescription, but I think gets to the very, very deep core of the entire opioid debate - and that is responsibility.

Obviously workers' compensation is supposed to be a "no fault" system - under the ideal operating environment, a worker who is injured gets medical treatment and some money regardless of who was ultimately responsible for the claim.

Tort litigation is all about blame, and pinning responsibility on someone other than the claimant.

One of the arguments we hear from those who have an addiction problem, particularly in litigation of course, is that the addict is not responsible for his or her fate - it was the physician, or the insurance company, or the employer, or the drug company, or the pharmacy, or the government who created this monster of a problem.

But it is never the addict's fault.

One of the first tenets in addiction therapy is the removal of blame in the addict's lexicon. Only when the addict does so and takes responsibility for his or her own self can there be any recovery. Until then, any type of therapy is useless.

Time after time, interview after interview, I have heard former addicts who have successfully beat their addictions repeat over and over again that there was no one to blame other than themselves for getting into trouble.

It is the ownership of the problem that is the core to a) recovery and b) successful long term sobriety.

The issue of who is to blame for opioid addiction and exploitation is a complex problem for sure and one that will torture the social, legal and medical systems for some time to come. It is not an issue that can be swept under the rug.

Certainly Boogaard, and those similarly situated, must share in the responsibility of getting into that situation in the first place. And just as certainly those who aided and abetted also share the blame.

One of the trend workshops at the NCCI Annual Issues Symposium that I am attending here in Orlando, FL deals, of course, with prescription drugs and NCCI's statistical research on the issue. I don't think anything surprising will be unveiled or that there will be any breakthrough information provided - we will get plenty of statistics and facts that will be scary for sure.

Regardless, I don't expect the statistics and research that will be presented today by NCCI Chief Economist Harry Shuford and Senior Actuary and Practice Leader Barry Lipton to provide any comfort or insight and certainly no direction on responsibility or correction.