Each day, nearly 100 babies/neonates are born diagnosed dependent to opioids. While in utero the fetus absorbs through the placenta upwards of 100% of the opiates ingested by its mother who, by comparison, only receives 70% of the opiates. From the moment the umbilical cord is cut the newborn begins a tortious and excruciating process of suffering through opioid withdrawal (commonly known as ‘neonatal opioid use withdrawal, or NOWS)– without a formed brain, respiratory systems, or any organ development. These babies’ first experience upon entering this world is the sensation of being whisked to the NICU, when available, where they struggle with incomprehensible pain and discomfort of opioid withdrawal that drags on for days, sometimes weeks; the average stay in the NICU is 8-10 days.
This national tragedy is being repeated so often each day that hospitals openly advertise for individuals to provide comfort and care to the growing number of babies/neonates admitted into the NICU. Oftentimes, this means continuously rocking the newborn for hours at a time to ease its pain; some caregivers wear headphones to diminish the sounds of a roomful of wailing babies all trying to overcome their unearned and undeserved dependency upon powerful opioids. Adding to their misfortune is the obvious fact that newborns lack the maturity and intellect of adult addicts and, understandably, are incapable of identifying and approaching available social and community support systems. Their mothers are, typically, too distracted battling their own personal struggle with opioid dependency and, oftentimes, criminal charges or family court petitions flowing from their addiction. The process of withdrawal for too many mothers involves a swift return to rehabilitation facilities or, worse, to jail, leaving their newborn to experience withdrawal without the comfort and familiarity of a loving mother [their biological mom].
Giving voice to the voiceless has been the goal of lawsuits filed on behalf of children born opioid dependent. In essence, these lawsuits seek to recover from certain pharmaceutical manufacturers and distributors of opioids compensation sufficient to (i) satisfy the bills issued by both hospital and medical care providers in connection with NAS-related care; (ii) establish protocols and processes for monitoring the needs of newborns/neonates as they develop and to reimburse them and their caregivers during this period; (iii) reimburse for all costs associate with physical and occupational therapies, and life care needs; (iv)redress the pain and suffering of these babies and their caregivers.
Newborns deserve nothing less than a quality of care that ensures them a rewarding quality of life. A reasonable person would think that society would rush to correct the documented harms occurring daily to newborns and, logically, that opioid manufacturers and distributors of these products would volunteer to take the lead.
Emerging legal analysis suggests that factual and legal distinctions make it easier for such babies to establish liability on the part various pharmaceutical manufacturers and distributors of opioids. For instance, neonates born opioid dependent can establish that their injuries were proximately caused by various pharmaceutical manufacturers and distributors of opioids whereas, by comparison, governmental entities or hospital entities have, so far, been uniformly unsuccessful in establishing proximate cause. This distinction, among others, is well known to the lawyers representing pharmaceutical manufacturers and distributors of opioids. In sum, common wisdom among legal scholars and lawyers alike suggests that children born opioid dependent should have an easier case to prove in court.
Sadly, the current legal defense strategy of the manufacturers and distributors named in lawsuits includes enlisting a battalion of lawyers to indiscriminately fight in every court to get the claims of children born opioid dependent lumped together with the thousands of lawsuits currently being pursued by governmental entities, hospitals, Native Americans, and insurance carriers, and others. Defendants’ concerted efforts to lump the babies suffering from NAS together with adults suffering from opioids addiction is contrary to society’s longstanding application of differing legal norms to adults and children. This is a prime example of a distinction with a difference and, so far, defendants have chosen to discount and ignore it, through their vigorous defense in court and by their seeming rejection to engage in meaningful settlement discussions with lawyers representing children born opioid dependent. Children born opioid dependent rightfully expect and deserve special treatment. The strategy of lumping newborns with the other lawsuits suggests a warehouse where inventory is left to languish on the shelf while politicians and corporate chiefs with influential voices seek to outmaneuver one another, drowning out the babies’ cries. Hospital institutions, governmental entities and corporate defendants, alike, enjoy the luxury of time and resources to sort out their differences, unlike neonates born into a world that treats them so callously, where every delay is a potential developmental delay never to be recovered.