Koon v. Walden

• Decision Date: 24 October 2017
• Docket Number: ED 104987
• Citation: 539 S.W.3d 752
• Parties: Brian KOON and Michelle Koon, Respondents, v. Henry D. WALDEN, MD and Saint Louis University, Appellants.
• Court: Missouri Court of Appeals

539 S.W.3d 752

Brian KOON and Michelle Koon, Respondents,

v.Henry D. WALDEN, MD and Saint Louis University, Appellants.

ED 104987

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: October 24, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied December 19, 2017

ATTORNEYS FOR APPELLANT: William R. Price, Jr., 7700 Forsyth Blvd., Suite 1800, Clayton, MO 63105.

ATTORNEYS FOR RESPONDENT: John G. Simon, 800 Market Street, Suite 1700, St. Louis, MO 63101.

ROBERT G. DOWD, JR., Presiding Judge

Dr. Henry Walden and St. Louis University (collectively "Defendants") appeal from the multi-million dollar judgment entered after a jury trial on claims that they had overprescribed opioids to Brian Koon and caused him to become addicted, resulting in damages to him and his wife (collectively "Plaintiffs"). On appeal, Defendants challenge the denial of a mistrial during voir dire, the admission of certain evidence, the punitive damage instruction and the submissibility of all of the claims against them. We affirm.

The evidence at trial showed the following. Opioids—drugs such as oxycodone, oxycontin and hydrocodone—are a class of prescription pain relievers derived from synthetic versions of opium. All opioids have a similar effect on the brain. Opioids work by binding to receptors in the brain that control the perception of pain. They do so in generally the same way that heroin does and produce the same euphoric effects. There are serious risks associated with opioids, including tolerance, dependency, addiction, life-threatening respiratory depression, overdose and death.¹ As patients take opioids, they develop tolerance and need more and more medication over time in order to achieve the same level of pain relief. Opioids change a patient's brain to make the body physically and psychologically dependent on the medication. All patients who use opioids for long enough will become tolerant and dependent, and some will become addicted. Addiction is a disease characterized by habituation, craving and preoccupation with obtaining and taking the drug.

Opioids are dangerous, and most are categorized as Schedule II drugs by the Drug Enforcement Administration, the classification for the most potent legal drugs and the ones that have the potential to do the most harm. Opioids should only be prescribed for severe enough pain that is not adequately relieved by alternative non-narcotic treatment, Opioid therapy should begin at the lowest effective dose of immediate-release opioids and go up slowly if needed. Opioids should be stopped as soon as possible.

The standard of care requires doctors to conduct a risk assessment with the patient before prescribing opioids, in which they discuss the risks versus the benefits of giving opioids to the particular patient for the particular pain. The risks and benefits should be re-assessed at an office visit each time the dose of an opioid is increased. Once a patient is taking opioids, he or she should be monitored regularly, meaning regular contact to assess pain levels and functioning and to check for side effects and behaviors that would suggest the patient is becoming addicted. The risk assessments and the results of monitoring a patient should be documented in the medical records.

Doctors must also keep track of the amount of opioids—number of pills and dose—that the patient is taking. The standard of care requires all healthcare providers to have a medication management system in place to make sure patients do not receive too many opioids. The maximum daily dose recommended for a patient with non-cancer pain is between 90 and 120 milligrams MED.² Though this upper limit is not contained in any textbook, law or label, it has been the standard for many years to help primary care doctors recognize when it is time to refer a patient elsewhere. If a patient's pain is not adequately controlled by around 100 milligrams MED of opioids, then he or she should be referred to a pain management specialist because by 200 milligrams MED, the risk of addiction, abuse and dying increases sharply. One study from 2009 found that 1 in 32 patients who escalated to taking above 200 milligrams MED died from opioid related overdose. A group of physicians recommended in 2012 that the Food and Drug Administration require labels on opioids that would set a maximum daily dose of 100 milligrams MED for a maximum length of 90 days and that would explain that long-term opioid use had not been proven safe and effective for chronic non-cancer pain.

Warning signs that a patient is dependent or addicted to opioids include patterns of early refills, asking for higher doses, taking multiple doses at once and exhibiting a loss of control over the ability to take the medication as prescribed. Patients who become addicted to opioids cannot themselves articulate the effect the increased doses of medication are having on their lives and will continue taking medicine despite those adverse effects. If a doctor suspects the patient is addicted, he should cease opioids and help the patient wean off of them.

The risks associated with opioids were generally agreed upon by all the doctors who testified at trial, both those who testified as experts for plaintiffs and defendants and the defendants themselves. The risks were well known to anyone prescribing these drugs, including Dr. Walden and SLU. Similarly, there was no real dispute at trial that healthcare providers should weigh the risks and benefits of opioids, should prescribe the lowest effective dose for the shortest amount of time and only when other modalities of treatment are ineffective, should monitor their patients carefully and assess them for signs of dependency and addiction.

Dr. Walden had been Brian Koon's primary care physician since 2001. Koon experienced intermittent lower back pain, which became more regular in 2008 after he threw his back out and fell while drying off from a shower. A visit to the chiropractor did not resolve all of the pain, so Koon went to see Dr. Walden on February 21, 2008 complaining of significant back pain. The pain was restricting his ability to do certain jobs at work. After examining him, Dr. Walden ordered x-rays and told Koon to continue using a muscle relaxer and ibuprofen as needed. The x-rays were normal. About a week later, Koon called Dr. Walden's office complaining that he still had "discomfort" in back, which the ibuprofen was helping on "some days." He asked the doctor to prescribe pain medication. Dr. Walden wrote a prescription for 30 pills of hydrocodone³ with one refill, to be taken as needed every six hours. There is a notation in the medical record that he discussed the prescription with Koon, but Dr. Walden could not recall the details of that conversation. He agreed that a physician must weigh the risks and benefits of prescribing an opioid each time the patient is started or continued on the drug. This is something he admitted he should have done with Koon and believed he had done with Koon, but could not recall the specific times he did so and had no documentation of the details of any such discussion, except for one, discussed below.

On March 31, 2008, Koon called Dr. Walden's office and requested a refill of the hydrocodone, explaining that he was taking double the amount of pills directed by his prescription. Dr. Walden prescribed more. On April 1, 2008, Dr. Walden saw Koon in his office, noting that he continued to have "back discomfort" and continued worsening of the pain, especially at the end of the work day, which was helped by taking two to three hydrocodone pills. Dr. Walden prescribed more pills and ordered an MRI. Koon called Dr. Walden's office a couple of weeks later asking for the results of the MRI and again reporting "having to take more than the prescribed dose" of hydrocodone for it to work. Dr. Walden increased the dose of hydrocodone. Dr. Walden also referred Koon to an orthopedic surgeon, who said the MRI did not show a need for surgery and referred Koon to physical therapy. Koon saw another surgeon that he sought out himself for a second opinion, and that surgeon reached the same conclusions, but referred Koon to a pain management doctor. She treated Koon with spinal steroid injections from time to time.

On July 8, 2008, Koon left a message with Dr. Walden's office stating that he increased the amount of hydrocodone he was taking and then tried to decrease it but "felt very bad, shaky, nose running, sweating, weak, yawning and moody." When he took the medicine, he felt better within an hour. Koon said he "needs help." Dr. Walden did not call Koon back or ask him to come in for an office visit; he just authorized another refill without speaking to Koon. On August 19, 2008, Dr. Walden saw Koon in his office. His notes indicate that Koon was doing better with back pain, receiving injection therapy and taking hydrocodone six times a day with "plans to wean back in one week." Dr. Walden noted that Koon desired to return to full work duty. Dr. Walden indicated the plan was for Koon to continue the hydrocodone but cut himself back on how often or how many pills he took. Dr. Walden did not change the hydrocodone prescription.

On February 10, 2009, another SLU doctor saw Koon for an office visit and recommended switching from hydrocodone to another type of opioid called oxycontin, which is the long-acting version of oxycodone ("contin" meaning "continuous"). He prescribed that to Koon and told him to follow up with Dr. Walden. A week later, when Koon went to see Dr. Walden, it was noted that Koon continued to have pain, but was tolerating the oxycontin well with no adverse effects. Koon reported that the oxycontin was wearing off quicker than he would like and had not eliminated the pain. Dr. Walden continued to prescribe the hydrocodone in addition to the oxycontin. Dr. Walden knew that oxycontin in combination with other opioids can increase the risk of respiratory depression.

On August 20,...