Advertising Disclosure Email Disclosure

Prescribing High Potency Medication To a Known Drug Abuser: Is the Doctor Liable For Resulting Injuries? Part 2

March 1, 2014

By Julia A. Klubenspies, Esq.*

Key Points:

  • Can a physician be held liable when a patient with a known drug and alcohol history overdoses on a high-potency skin patch medication by using it in an “off-label” manner?
  • Were the plaintiff’s actions reasonably foreseeable by the physician?
  • Was the “but for” proximate cause charge appropriate when multiple causes of the injury were possible, and was such a charge plain error by the trial judge?


The New Jersey Supreme Court recently heard oral argument on a case involving a patient with a known drug abuse history who swallowed medication from a prescription, high-potency skin patch, which ultimately lead to anoxic brain injury. The question before the Supreme Court is whether the trial court erred in instructing the jury to consider whether the patient’s drug addiction and alcohol abuse were pre-existing conditions that proximately caused her injuries. The issue at trial was whether the prescribing physician was liable for the resulting injuries.

In Komlodi v. Picciano, A-4229-09T3, Dr. Picciano prescribed Fentanyl skin patches to help alleviate lower back pain suffered by the (incapacitated) plaintiff, Michelle Komlodi, age 31. Dr. Picciano had treated the plaintiff for many years as a primary care physician and was aware of her long-term history of substance alcohol and drug abuse. The plaintiff also had a history of depression.

Dr. Picciano had discussed the importance of undergoing treatment for her addiction and mental illness. Although x-rays were normal, her clinical examination was normal and the defendant was unable to have the patient reproduce the pain in her office, Dr. Picciano testified that she believed her patient “really had back pain” and was not merely seeking drugs. The patient told Dr. Picciano that she had obtained a friend’s Fentanyl patches and had been using those to obtain relief of her back pain, which she stated was chronic. The plaintiff further advised Dr. Picciano that her use of narcotics and alcohol was to quell her back pain, and she assured the defendant that she would not engage in such behavior if she had a prescription pain killer. Dr. Picciano decided to treat the plaintiff patient’s back pain temporarily, knowing that she had an appointment at a behavioral health clinic shortly thereafter.

Dr. Picciano advised her patient that she could not consume any alcohol while using the Fentanyl patches. The patches slowly release medication through the skin over a period of 72 hours. However, on August 2, 2004, while drinking heavily, the plaintiff ripped open a patch with her teeth and swallowed the medication. This resulted in suppressed respiratory function and anoxic brain injury.

The plaintiff’s primary liability theory was that Dr. Picciano was negligent in prescribing the patch since, in view of the plaintiff’s history of alcohol and drug abuse, it was foreseeable that she would misuse the patch by deliberately applying the gel to her mouth or gums, or use the patch while consuming alcohol. At trial, the jury was given a Scafidi charge to consider prior alcohol abuse as a pre-existing medical condition, as well as an intervening cause charge. The jury determined that the plaintiff had proven that Dr. Picciano deviated from accepted standards of family practice during her treatment and that Dr. Picciano’s deviation increased the risk of harm posed by her patient’s pre-existing condition. However, the jury also found that the plaintiff failed to prove that the increased risk was a substantial factor in producing the ultimate harm or injury suffered by the patient. Thus, the jury returned with a verdict in favor of Dr. Picciano.

The Appellate Division reversed and remanded for a new trial. On appeal, the plaintiff contended that the Scafidi charge was inappropriate because the defendant did not prove that a pre-existing disease or condition contributed to the plaintiff’s injury. The plaintiff further contended that the judge improperly gave the “but for” proximate cause charge. The court stated:

Here, the evidence did not clearly establish a Scafidi case, the jury charge included both ‘but for’ and pre-existing condition/increased risk instructions, and the charge barely mentioned the facts and theories of the parties. Those errors require that the case be remanded for a new trial….defendants did not identify ‘the pre-existing disease and its normal consequences.’ Fosgate v. Corona, 66 N.J. 268, 272 (1974). Having failed to do so, defendants were not entitled to a Scafidi charge.

The Appellate Division also found that the trial judge did not properly identify the claimed pre-existing condition to guide the jury. Instead, in the jury charge, the trial judge merely referred to the plaintiff’s “medical condition” and “problems” without reference to any defense proofs or theories. Specifically identifying the pre-existing condition was necessary to permit the jury to determine whether the plaintiff deliberately bit the patch to ingest the Fentanyl or if she accidently bit the patch while removing it from its packaging. (Note that the patch was found “chewed up” in the back of the plaintiff’s mouth, and there was no product liability claims advanced against the manufacturer of the patch.) This factual issue made an intervening charge improper if the patient’s biting the patch was a foreseeable action in view of her medical and mental history.

The Appellate panel had one dissenting Justice, which permits this case to be heard by the Supreme Court. Oral argument occurred on October 7, 2013, and an opinion from Supreme Court is expected by Spring 2014.

*Julia, an associate in our Roseland, New Jersey, office, can be reached at 973.618.4170 or


Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Affiliated Attorney

Julia A. Klubenspies
(973) 618-4170


Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."