Accused 'pill mill' fears widespread impact if held responsible for addict's overdose

David Yates Jan. 26, 2010, 5:12am

A medical clinic accused of being a "pill mill" is asking a Beaumont appeals court to reject a plaintiff's medical expert reports, warning justices that allowing "drug addicts" to skirt the civil code "would have a far reaching impact across Texas."

In October 2008, Ken and Esther Scarborough filed suit on behalf of their deceased son against a medical clinic, a pharmacy, two physicians and two pharmacists, alleging their son died after he took pills prescribed to him.

As the Southeast Texas Record previously reported, the Beaumont couple claimed their 25-year-old son, Christopher, died an "accidental death" caused from drug toxicity and pulmonary edema on Sept. 23, 2007.

However, in stark contrast to the Scarboroughs' arguments, defendants Unimed Medical Clinic and Lifecheck Conroe contend Christopher Scarborough was a "drug addict" who "fraudulently" obtained the pills by feigning back pain, court papers say.

"Although (Christopher Scarborough) died from a drug overdose from medication that he fraudulently obtained and voluntarily consumed in far excess of the recommended dosage, Plaintiffs' theory is that one group of defendants is liable for prescribing ... and the other group is liable for filling the prescriptions," according to the defendants' appeals brief.

"Plaintiffs have even gone so far as to allege that all the defendants conspired to illegally sell (Christopher Scarborough) the drugs for profit."

Shortly after filing their suit, Ken and Esther Scarborough obtained four medical expert reports to shore up their lawsuit – a requirement under the Texas Civil Code, Chapter 74.

In response, defendants Unimed Medical Clinic, Lifecheck and the people who prescribed, filled and sold the drugs challenged the validity of the plaintiffs' reports – arguing that the "Plaintiffs' experts fail to address how Defendants caused the death of a drug addict who took more of the prescription medication than prescribed."

Judge Gary Sanderson, 60th District Court, denied the objections on May 12, leading the defendants to file an appeal to the Texas Ninth District Court of Appeals in Beaumont.

On appeal, the defendants question if Judge Sanderson, or any court, should "permit drug addicts to satisfy Chapter 74's expert report requirements without addressing whether their own drug seeking behavior ... was the actual cause of their death."

"The implications of letting drug addicts escape from this statutory requirement would have a far reaching impact across Texas," the defendants' appeals brief states.

Conversely, the Scarboroughs argue their "expert reports provide a fair assessment" and meet all Texas Civil Code requirements.

On Jan. 14 the appeals court scheduled oral arguments for March 11.

Case background

On Sept. 18, 2007, during a visit to Unimed Medical Center, physician's assistant Kelly Lock and Dr. John Edward Perry III wrote Christopher Scarborough three prescriptions for 120 tablets of Soma 350 mg, 120 tablets of Lorcet and 60 tablets of Xanax, the suit states. Records show Christopher Scarborough was at the center seeking medical treatment for back pain.

The plaintiffs allege Lock and Perry performed no diagnostic tests, but told Christopher Scarborough to take one tablet of Soma, one tablet of Lorcet and half a tablet of Xanax four times a day.

"This combination of medications is often referred to on the streets as a 'holy trinity' or 'party packs' because of the ease in which they can be obtained from numerous 'pill mills' in Houston/Beaumont and Southeast Texas area," the suit states. "Plaintiffs assert and allege that Unimed Medical Clinic LLC was just such a clinic."

Christopher had the three prescriptions filled by Lifechek on Sept. 18 for $65, according to the complaint.

"Plaintiffs would show that these medications were excessive and medically unnecessary," the suit states.

The Scarboroughs claim they found their son unconscious on the floor of their house on Sept. 23, 2007.

Christopher Scarborough died before he could be transported to the hospital, according to the complaint.

The Scarboroughs were responsible for his funeral and burial expenses, the suit states. They also claim they suffered conscious pain, grief and mental anguish as a result of his death.

The plaintiffs allege Lock, Perry and Unimed were negligent because they failed to properly evaluate, assess, diagnose and treat Christopher Scarborough's condition, failed to supervise the carrying out of a prescription drug order and prescribed unnecessary medications.

The medical personnel also prescribed controlled substances without a valid medical purpose, failed to provide information about the risks of the drug, failed to act as a reasonable physician would have done and failed to comply with the standard of care, the suit states.

Lifechek and its pharmacists were negligent because they dispensed a substance without a legitimate medical purpose, failed to provide information about the risks, failed to provide patient counseling about the risks and failed to conduct a drug regimen review, according to the complaint.

"Pleading further, Plaintiffs would show that at the time and on the occasion complained of all Defendants jointly were engaged in a civil conspiracy to commit illegal acts by way of prescribing and dispensing unnecessary, improper, and non-therapeutic medication and dangerous drugs to Christopher Scarborough and others in order to generate a profit," the suit states.

The Scarboroughs are seeking unspecified exemplary and monetary damages, prejudgment and post-judgment interest, court costs and other relief.

Kay L. Van Wey of Van Wey & Johnson is representing them.

The defendants are represented in part by attorneys Robert M. Browning and Daniel K. Dinneen.

Case No. B182-457
Appeals case No. 09-09-00211-CV

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