More than $50 billion have been extracted from the opioid industry in litigation for the abatement of the effects of profligate opioid prescribing, and the opioid crisis has been firmly established in the public mind as the biggest product-liability fiasco since the Big Tobacco scandal of the 1990s. So, has justice been served? The crisis resolved? The story told? Can we all move on now? …not yet.

Settlement money is now flowing into states and municipalities, some of which are using the payouts to expand harm reduction initiatives and experiment with new ways to treat opioid use disorder. Indeed, a recent report from the Centers for Disease Control and Prevention predicts that fatal overdoses may have declined as much as 24% for the 12-month period ending in September 2024.[1] While this is inarguably good news, the drop appears to be attributable more to increased access to Narcan and the vagaries of the illicit drug supply than to any lasting expansion of evidence-based addiction treatment.[2] 

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Healthcare providers generally are not eager to integrate medication-assisted treatment for opioid use disorder into their practices, even as evidence for its effectiveness mounts and federal rules governing it are relaxed. This is largely because they are still working within the same distorted healthcare system — under the watch of the same misguided regulatory regime — from which the problem emerged in the first place. As long as the myriad roots of the opioid crisis remain unaddressed, fatal overdoses are likely to remain unacceptably high.

Over the past few decades the DEA and federal prosecutors have laid down a trail of precedents through the criminal justice system that allows them to construe the writing of a prescription in good faith for a patient who appears to need it as “drug dealing,” and the routine billing for the appointment in which it occurs as insurance “fraud.” The PAIN GAME follows this winding road through the case law to the doorstep of the civil litigation of the opioid industry and reveals that it is paved with questionable intentions.

Opioids were indeed too freely prescribed for a time, and many people were harmed. I can understand why they and their families would seek compensation for their loss from Purdue Pharma and other major players in the opioid industry. But this is approximate justice, and it can yield nothing more than proximate results.

Big Pharma is a vast, complex industry operating within an ungainly healthcare system by the grace of a criminal justice system in dire need of reform. Some opioid manufacturers, distributors, and retailers may be guilty of much worse offenses than misleading marketing or dilatory reporting of suspicious orders. At the same time, some companies that have already paid out settlements may not actually have broken the law at all. 

This imprecision comes at a cost. When the innocent are convicted, not only do the guilty get away, but the rule of law becomes a free-for-all in which no one knows the rules and everyone is harmed. It's a brutal game that has severely distorted the healthcare system, diverted precious resources away from public health and into law enforcement, and driven more than a million Americans to their deaths.

The story of the opioid litigation has been wrapped too tightly around a single narrative thread: that the blame for the entire problem can be pinned on a cabal of corporate Snidely Whiplashes who managed to foist a deadly product on an unsuspecting public with their dastardly schemes. While the opioid industry executives should certainly be held accountable for anything truly illegal they have done, it is important to recognize that this naked product-liability framing of the issue invests too much power in the product itself. It relies upon what I call the "magic molecule" theory of addiction: that mere exposure to a potentially addictive substance puts a person at an overwhelming risk of addiction, as if that person's psyche and circumstances are unimportant. And by extension, this framing implies that those who have died of opioid overdoses would have been just fine living out their distressed lives in their dilapidated towns if they hadn't had the random misfortune of being clobbered by the most addictive molecule known to humankind. WHAM!!! 

The opioid overdose decedents are not cartoon characters. They are human beings with hopes and dreams and disappointments. When we strip them of their agency, we signal that we are uninterested in them as anything other than statistics. People tend to seek what they need; we need to ask why so many Americans don’t — or can’t — get what they need in a salutary way.

We also must explore the many factors that have contributed to the addiction vulnerability of the American population. We know that addiction isn’t caused by exposure alone, no matter how potent the molecule. So, what are the greater forces have cramped our opportunities and battered our towns and neighborhoods? And more specifically to The PAIN GAME, what are the dynamics within our healthcare system and our criminal justice system that have allowed a good idea — alleviating pain and suffering — to go so wrong? 

Above is the late Dr. Steven B. Karch, the author of Karch’s Pathology of Drug Abuse,[3] whom I interviewed in 2017. One of the world's foremost experts on drug overdose, he had served as an expert witness for the defense in the trial of Dr. Stephen and Linda Schneider in 2010. What he is saying here is that, when you look at it holistically, fatal overdose is a physical and behavioral process in most cases, rather than a random accident.

When determining the cause of death, medical examiners by law must categorize fatal overdoses as "accident" (self-poisoning) rather than "suicide," unless they see readily available indications of suicidal intent, such as a note or a record of previous attempts. Besides non-drug-related accidents, deaths can be classified as "homicide" or "natural" (aging or disease). When they're not sure, medical examiners may also put "undetermined" on the death certificate — although, according to Dr. Karch, they are reluctant to let their undetermined rate climb above 10%, even though they usually do not have the resources to perform a complete autopsy.[4] I take this to mean that they would risk looking incompetent or exposing the system's inadequacies if they were honest about their undetermined rate. 

Social stigma around both drug use and suicide, as well as religious prohibitions against suicide, can tilt a medical examiner's decision toward "accident" as well. And as we've seen in our reporting, the decedent’s family also has financial reasons to try to avoid allowing the death to be ruled a suicide. Life insurance policies will not pay out for a suicide. And with a suicide the legal liability falls primarily on the decedent, which makes it difficult to for the family to sue the doctor for malpractice or wrongful death.

Like Dr. Karch, Prof. Ian Rockett,[5] an epidemiologist at West Virginia University, believes that this rigid medico-legal classification system is obscuring a full understanding of the opioid crisis — now more accurately called the overdose crisis. Since the vast majority of overdose decedents have a history of self-intoxication (with multiple drugs in the mix, including alcohol and tobacco), Prof. Rockett and his colleagues have argued that almost all fatal drug overdoses should be regarded as slow-motion suicides: that while the decedent may not have intended to die at the particular moment that he did, he had been traveling a journey of physical and psychological deterioration that could have ended at any time. 

Prof. Rockett and his colleagues have proposed that a new working category be added to the classification of such deaths: death from drug self-intoxication (DDSI). Fatal overdoses would be classified as DDSI as a first step, and from there, the manner could be differentiated as suicide or accident depending upon the decedent's long-term drug-related behavior. Under this scheme, that behavior would itself be taken as evidence of suicidal intent.[6] Only when we shift our focus away from the moment of death and broaden our inquiry to include decedents’ entire lived experiences can we begin to fashion effective prevention strategies at a population level. 

One of the most sobering revelations to emerge from The PAIN GAME is that the overdose crisis didn't happen by accident. It happened by design — although not by the grand conspiracies of cartoon villains. It arose from the design of our healthcare system, which puts the profits of pharmaceutical and health insurance companies before patients' health. It arose from the design of our criminal justice system, which uses the hammer of drug prohibition to nail every one of us as potentially guilty of something. It arose from the design of our economic system, which has allowed unaccountable, supra-national corporations to suck up our data, snuff out local businesses, and jack up rents and prices. It arose from the design of our educational system, which warehouses our children instead of teaching them to think. And it arose from the design of our political system, in which our representatives are so preoccupied with getting elected and re-elected (and in some cases enriching themselves) that they hardly ever design anything at all. These systems may have arisen haphazardly, but with time they have taken on an inexorable, interwoven life of their own.

Like its overdose victims, America itself is undergoing long-term, accelerating changes that are making it sick. In The PAIN GAME we hear that Americans have a strong sense that their government at all levels is not doing what it says it is, that decisions are being made among political and corporate elites up in some stratosphere where ordinary citizens don't have a voice. They feel that they've become pawns in a game where they no longer understand the rules. Viewed in this context, Americans' drug use may look like a rational (though inchoate) expression of protest, a mournful last gasp of self-determination.

We deserve better.

The man in the video above is the late Dr. Frank McCune, whom Erica interviewed during her first shoot for The PAIN GAME in the spring of 2004. Dr. McCune had recently emerged victorious from a federal criminal fraud suit against the home healthcare business he owned and operated with his wife and adult children in the Mississippi Delta. Five years and $500,000 later, he had his freedom, but he had lost almost everything else: the business, his savings, and nearly his marriage. What bothered him most, he told Erica, was that he didn’t understand why the government had targeted him at all — and with investigators who knew so little about how the healthcare system works that he had to assist them in his own case!  

As with Dr. McCune’s case, the opioid litigation could prove to be a hollow — and haunting — victory if it leaves too many questions about the overdose crisis unanswered and too many of its storylines obscured by the media’s strenuous adherence to the product-liability narrative. Through The PAIN GAME, we will keep pressing this vital issue and excavate its entire twisted history. 

Then we can move on.

Notes:

1. CDC Reports Nearly 24% Decline in U.S. Drug Overdose Deaths. CDC Newsroom February 25, 2025.

2. Dasgupta, Miller, Sibley, Are overdoses down and why?. Street Drug Analysis Lab @UNC Newsletter: September 18, 2024.

3. CRC Press, 5th Edition; November 11, 2015.

4. PAIN GAME interview, May 11, 2017; Karch_CamA1_00000: undetermined rate.

5. Ian Rockett, Ph.D., M.A., M.P.H., Professor Emeritus, Epidemiology and Biostatistics, School of Public Health, West Virginia University.

6. Rockett, et al., Confronting Death From Drug Self-Intoxication (DDSI): Prevention Through a Better Definition. Am J Public Health 2014; 104:e49–e55.

The music in the first video is by Joe West.

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