With nearly one-third of Americans reporting in a 2018 national poll by the American Psychiatric Association that they know someone who is or has been addicted to opioids or prescription painkillers, personal injury attorneys must prepare to represent a new type of client: the seriously injured plaintiff who—intent on not becoming a statistic—refuses to take medically prescribed opioids.

We submit that this will require a new (or at least modified) mindset as to how we communicate with, and advocate for, our clients.

Like it or not, there is often a symbiotic relationship between the medications and treatment our clients receive, and the monetary damages they are awarded in litigation. While refusal to take opioids does not render the plaintiff's physical injuries any less serious, it does provide an opening for defense counsel to argue that the injuries are less severe. Logic, from the defense's standpoint, says that the plaintiff who declines painkillers is not in severe pain, and this argument must be effectively rebutted.

As clients' lives are increasingly touched by the opioid epidemic, and as the public outcry against addiction, overdoses and deaths continues, we should expect significant changes in how our clients choose to manage their pain.

The Big Picture

To understand the plight of the client who is unwilling to take opioids, we must first understand the opioid problem from a 30,000-foot view.

Opiate medications temporarily disrupt the perception of pain by binding to specific receptors in the brain, spinal cord and peripheral nerves. They touch off the brain's reward center by releasing the dopamine hormone, thus creating a feeling of euphoria. Patients who become dependent upon opioids may experience withdrawal symptoms if they discontinue use.

Opioids typically seen in personal injury litigation include oxycodone, hydrocodone, codeine and morphine.

Historically, medical prescriptions for opioids saw a sharp increase in the late 1990s, as pharmaceutical companies represented to health care providers that their patients would not become addicted, according to the National Institute on Drug Abuse.

The Centers for Disease Control and Prevention (CDC) reports that the national opioid prescription rate peaked in 2012 at more than 255 million prescriptions, representing a prescribing rate of 81.3 prescriptions per 100 persons. Thereafter, from 2012 to 2017, the overall national prescription rate declined. In 2017, it fell to the lowest it had been in more than 10 years, at 58.7 prescriptions per 100 persons, which translates to more than 191 million total opioid prescriptions, according to the CDC.

In the American Psychiatric Association national poll, nearly half of the participants (46%) reported that the opioid crisis was impacting people like them, up from 37% in 2017. The poll is but one more set of data on top of an already grim heap of statistics.

On average 130 Americans die every day from an opioid overdose, according to the CDC. The CDC further reports that from 1999 through 2017, almost 400,000 people died from an overdose involving any opioid, including prescription and illicit opioids. Around 68% of the more than 70,200 drug overdose deaths in 2017 involved an opioid.

For 2017, the CDC reports that Pennsylvania had the third-highest rate (behind West Virginia and Ohio) of death due to drug overdose in the nation: 44.3 per 100,000. The Pennsylvania Department of Health, pursuant to legislation signed by Gov. Tom Wolf in 2016, provides a nonopioid directive that patients can voluntarily sign to communicate to their prescribers that they do not wish to receive opioid medications. In the information sheet that accompanies the directive, the Department of Health estimates that 1.2 million Pennsylvanians are in recovery from substance use disorder.

In short, prior to the accident that precipitated your client's need for pain relief, your client was probably touched, in some manner, by the opioid epidemic. Below we offer strategies for addressing the anticipated transformation of pain management in personal injury litigation.

Explore Your Client's History

In our firm's more than 30 years of legal practice, we have yet to encounter a seriously injured client whose wish is to suffer in excruciating pain. If your client is declining pain relief, effective advocacy demands that you find out why.

Perhaps your client has witnessed the addiction of a family member or friend. Maybe your client has an addictive personality and has experienced other forms of addiction, such as compulsive gambling or alcohol abuse. Or your client with young children may simply need to be awake and alert to take care of them.

Whatever your client's reason, it is integral to your litigation strategy, so the sooner you ascertain it, the better. In discussing medical choices with your client, be mindful that litigation should never impact decisions that clients make with their doctors, and attorneys should never inject themselves into their clients' medical care.

Frame the Narrative

Once your client has decided not to take opioids, own it.

Educate your client on how defense attorneys, insurance companies, jurors and others will perceive their choice to decline pain medication. Then seize control of the narrative by preparing the plaintiff to explain his decision-making in its best light during deposition testimony, independent medical examinations, and, of course, trial.

Prepare Clients to Effectively Communicate With Their Doctors

While it is important for all clients to effectively communicate with their doctors, doing so is particularly important for the client who declines pain medication.

Clients should be encouraged to keep a journal of their pain and to share it with their health care providers.

Also, clients must be counseled to not minimize their level of pain. While this sounds obvious, we have all encountered seriously injured clients who "buck up" and tell health care providers that they are OK. While their stoicism in the face of adversity is admirable, it does not establish an accurate record of their medical condition for use in litigation.

Explore Alternative Treatments

Given the large number of people adversely impacted by opioids, and with opioid prescriptions steadily declining, now is the time for personal injury attorneys to educate themselves on alternative pain management therapies and to advise our clients to discuss the full range of options with their medical providers.

Possible alternative therapies include acupuncture, chiropractic, biofeedback, meditation, yoga and marijuana.

Note that for clients who opt to control their pain with marijuana, the attorney should be prepared to counsel them on the potential stigma associated with marijuana use in litigation. The attorney should counsel them on practical ways to overcome this stigma, which includes registering with, and fulfilling the requirements of, the state's Medical Marijuana Program Registry and obtaining the medical marijuana from an approved dispensary in Pennsylvania.

Rising to the Challenge

As the opioid epidemic continues its grip, and attitudes regarding pain management continue to evolve, litigation strategies that have served our clients well since the ascension of opioids in the 1990s will become less effective, if not obsolete. Justice demands that we rise to the challenge.

Evan Y. Liu, M.D. and Bethany R. Nikitenko are attorneys at Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig in Philadelphia. They can be reached at [email protected] and [email protected].