Justices to decide if accused 'pill mill' responsible for addict's overdose

David Yates Mar. 17, 2010, 5:45am

Last week, three appellate justices were told by an attorney representing the family of the late Christopher Scarborough that pharmacies have an obligation to investigate individuals seeking to have their prescriptions filled.

As the Southeast Texas Record reported, in October 2008 Scarborough's parents, Ken and Esther Scarborough, filed suit against a medical clinic, a pharmacy, two physicians and two pharmacists, alleging their son died after he took pills prescribed to him.

In their suit, the Beaumont couple says 25-year-old Scarborough died an "accidental death" caused from drug toxicity and pulmonary edema on Sept. 23, 2007.

However, court papers and medical records indicate that Scarborough overdosed, leading defendants Unimed Medical Clinic and Lifecheck Conroe to contend he was a "drug addict" who "fraudulently" obtained the pills by feigning back pain.

Both sides presented their oral arguments before justices seated on the Ninth Court of Appeals of Texas on March 11.

In May 2009, Unimed and Lifecheck appealed a lower court's decision that failed to exclude the plaintiffs' medical expert reports.

The two medical facilities, which have been accused of being "pill mills" by the plaintiffs, petitioned Beaumont justices to reverse the lower court's ruling, warning that allowing "drug addicts" to evade the civil code "would have a far reaching impact across Texas."

"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."

During oral arguments, Lifecheck attorney Rob Browning said Scarborough "was regrettably a drug addict" who overdosed, and the court shouldn't allow cases of this nature to continue "without addressing the (user's) behavior."

"If you don't look into if a (drug abuser) was medically compliant, then how can you say the pharmacy is to blame?" he asked.

Browning argued that the plaintiffs' expert reports failed to show causation, and that the case against his client should be dismissed on those grounds alone.

Conversely, Kay Van Wey, an attorney for the plaintiffs, argued "there were numerous red flags in this case ... that should have alerted a prudent pharmacy" and coaxed them into investigating Scarborough's medical history.

"They gave him a loaded gun," she said, adding that Scarborough's prescription of codeine and Xanax is a "well known" drug cocktail sought by drug abusers, especially here in Southeast Texas.

In rebuttal, Browning said if his client did indeed hand Christopher Scarborough a loaded gun, "than he pulled the trigger himself."

He also said that his client would have more liability if it hadn't filled the prescription and Scarborough suffered an injury because he was denied access to his medications.

Because their suit alleges medical malpractice, Ken and Esther Scarborough were required to submit medical expert reports under the Texas Civil Code, Chapter 74. Jefferson County Judge Gary Sanderson, 60th District Court, originally denied the defendants' objections to the expert reports May 12.

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

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