Can a Tennessee doctor or pharmacist be sued for negligence if a patient becomes addicted to a prescribed opioid?

Plain-English summary

A Tennessee legislator asked whether doctors and pharmacists are automatically off the hook if a patient becomes addicted to a drug they prescribed or filled. The AG said no. Tennessee law has long required physicians and pharmacists to use reasonable care, and patients can sue when they suffer injury from a negligent prescription or dispensing decision. Those suits now travel under the Health Care Liability Act, which sweeps in any claim that a "health care provider" caused an injury related to the provision of health care services, regardless of how the claim is framed.

The AG could find no statute or common-law doctrine that immunizes prescribers or pharmacists from negligence claims tied to addiction. Whether liability actually attaches in a given case is fact-driven: the plaintiff still has to show a breach of the standard of care, causation, and damages, and the defense can point to the patient's own conduct (comparative fault) and to whatever the prescriber or pharmacist knew or should have known about the patient at the time. The AG flagged Mercer v. Vanderbilt as the leading Tennessee authority on comparative fault in health-care contexts.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did the legislator mean by "held harmless"?
A: In a contract, a "hold harmless" clause shifts liability from one party to another. The AG read the question as really asking whether some legal rule (statutory or common-law) automatically exempts prescribers and pharmacists from liability when a patient becomes addicted. No such rule existed in Tennessee at the time of the opinion.

Q: Is professional negligence the same as ordinary negligence?
A: It is a species of negligence. Doctors and pharmacists owe the standard of care of their respective professions in the same or similar communities. The Tennessee Supreme Court spelled that out for both groups in Pittman v. Upjohn Co. (1994), which the AG cited as the starting point.

Q: How does the Health Care Liability Act fit in?
A: At the time of this opinion, Tennessee's HCLA (Tenn. Code Ann. § 29-26-101 et seq.) applied to "any civil action . . . alleging that a health care provider or providers have caused an injury related to the provision of, or the failure to provide, health care services to a person, regardless of the theory of liability." That means the procedural rules of the HCLA, including its pre-suit notice and certificate-of-good-faith requirements, govern an addiction-driven negligence claim even though it might intuitively feel like a different kind of case.

Q: Does the patient's own role in becoming addicted matter?
A: Yes. The AG specifically pointed to comparative fault. Mercer v. Vanderbilt Univ., 134 S.W.3d 121, 128-29 (Tenn. 2004) holds that a plaintiff's conduct can reduce or bar recovery in a health-care negligence case, depending on the facts. A jury may have to weigh how much of the harm flowed from the prescriber's decision versus the patient's own choices.

Q: Does this opinion say a particular case will win or lose?
A: It does not. The AG was clear that liability "would depend on the facts of any given case." The opinion answers a categorical question (are providers exempt as a matter of law?) and leaves case-specific liability to the courts.

Background and statutory framework

The Tennessee Health Care Liability Act unified what used to be called medical-malpractice litigation. It covers physicians, pharmacists, nurses, hospitals, and other health-care providers when an injury is "related to the provision of, or the failure to provide, health care services to a person." Tenn. Code Ann. § 29-26-101(a)(1), (c). Pharmacists are explicitly within the Act's definition of "health care services" providers. § 29-26-101(b). Once a claim falls within the Act, the Act's procedural rules govern even if the plaintiff styles the claim as ordinary negligence or some other theory.

The standard of care for prescribers and dispensers comes from common law. Pittman v. Upjohn Co. described both as bound by the reasonable care of their profession in their own or similar communities. Comparative fault, recognized in Tennessee since McIntyre v. Balentine, applies to health-care negligence cases too, as Mercer v. Vanderbilt confirmed.

Citations

• Tenn. Code Ann. § 29-26-101 (scope and definitions of the Health Care Liability Act)
• Pittman v. Upjohn Co., 890 S.W.2d 425 (Tenn. 1994) (standard of care for physicians and pharmacists)
• Mercer v. Vanderbilt Univ. Inc., 134 S.W.3d 121 (Tenn. 2004) (comparative fault in health-care negligence)
• Black's Law Dictionary (definition of "hold harmless")

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-032.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 23, 2016
Opinion No. 16-32

Liability of Doctors and Pharmacists for Negligently Prescribing to, or Filling Prescriptions for, Patients Who Become Addicted

Question 1
Are doctors or pharmacists held harmless if a patient is addicted or becomes addicted to medication prescribed by a doctor or dispensed by a pharmacist?

Opinion 1
No.

Question 2
Can a doctor or pharmacist be found negligent for enabling a person's addiction by prescribing or dispensing an opioid?

Opinion 2
Yes, but liability would depend on the facts of any given case.

ANALYSIS

Tennessee law is well-settled that doctors and pharmacists may be sued for damages for injury caused by prescribing or dispensing medication. "The law imposes upon all persons the duty to use reasonable care under the circumstances. Physicians are not exempt from this duty . . . ." Pittman v. Upjohn Co., 890 S.W.2d 425, 432 (Tenn. 1994). And "[p]harmacists have a duty to exercise the standard of care required of the pharmacy profession in the same or similar communities." Id. at 434.

Such suits are now generally governed by the Health Care Liability Act. See Tenn. Code Ann. § 29-26-101 et seq. The Act applies to any civil action "alleging that a health care provider or providers have caused an injury related to the provision of, or the failure to provide health care services to a person, regardless of the theory of liability on which the action is based." Tenn. Code Ann. § 29-26-101(a)(1) and (c). "Health care services to persons" includes care by physicians and by pharmacists. Tenn. Code Ann. § 29-26-101(b). Such actions and claims are subject to the Act "regardless of any other claims, causes of action or theories of liability alleged in the complaint." Tenn. Code Ann. § 29-26-101(c).

To be "held harmless" generally means that the person or entity is not liable for damages by operation of an agreement, such as a contract with an indemnity clause, in which one party agrees to hold the other without responsibility for damage or other liability arising out of a particular transaction. Black's Law Dictionary. We assume that your question is not whether a doctor or pharmacist would be "held harmless" in the technical, contractual sense, but rather whether the doctor or pharmacist would be exempt from liability by operation of law. We are unaware of any statutory provision or common-law principle in Tennessee under which a doctor or pharmacist would be "held harmless" against a patient's claim of professional negligence related to the prescribing or dispensing of medication.

While doctors and pharmacists may be sued for negligently prescribing or dispensing medication to a patient who is, or becomes, addicted to that medication, the question of actual liability would depend on the specific facts of each case. Thus, whether a doctor or pharmacist can be found negligent for enabling a person's addiction by prescribing an opioid or filling an opioid prescription depends on the specific facts in any given case. Comparative fault, if any, on the part of the patient would be one fact to be considered. See Mercer v. Vanderbilt Univ. Inc., 134 S.W.3d 121, 128-29 (Tenn. 2004).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MICHAEL C. POLOVICH
Assistant Attorney General

Requested by:
The Honorable Curtis Johnson
Speaker Pro Tempore
15 Legislative Plaza
Nashville, TN 37243