Elissa Philip Gentry & Benjamin J. McMichael

Volume 72, Issue 3, 827-870

Unlike past public health crises, the opioid crisis arose from within the healthcare system itself. Entities within that system, particularly opioid manufacturers, may bear some liability in sparking and perpetuating the current crisis. Unsurprisingly, the allegations underlying the thousands of claims filed in connection with the opioid crisis differ substantially. However, almost all of those claims rely, to some degree, on the strength of the relationship between opioid manufacturers and the healthcare providers who prescribed their products. This Article argues that the underlying relationship is the heart of the crisis and that this problematic relationship is by no means a thing of the past.

This Article provides critically important empirical evidence on the provider-manufacturer relationship. Analyzing a novel dataset constructed solely for this Article, the Article examines the role of payments from pharmaceutical companies to healthcare providers in inducing the latter to prescribe more opioids. This analysis reveals robust and consistent empirical evidence that pharmaceutical companies continue to pay healthcare providers, and providers receiving higher levels of payments prescribe more opioids. This analysis is limited to legal payments, so it cannot establish any basis of liability by itself. However, the relationships elucidated by this empirical evidence are the types that can facilitate the activities plaintiffs in the ongoing opioid litigation have alleged. Thus, the evidence developed and presented in this Article provides critically important insight into the role of manufacturers in the opioid crisis and into the litigation that crisis has generated.