Ignoring the Epidemic Could Lead to Wrongful Death Liability
CONTRIBUTED TO
THE OBSERVER
OPINION —
During 2022 a staggering 110,236 Americans — an average of 300 a day, or one every five minutes — was killed by a drug overdose; an ever growing number of unnecessary deaths primarily exacerbated by the increased availability and use of synthetic opioids such as Fentanyl.
Many were young people experimenting with drug use as college kids often do, but some ingested Fentanyl unknowingly. But, as one campus police chief pointed out in justifying his school’s decision to have Narcan boxes in residence halls, common areas and the library: “When I was growing up as a kid, you could experiment with things but wouldn’t necessarily kill you. But if you experiment with pills nowadays, one pill can literally kill you.”
In view of this now clearly foreseeable deadly danger, especially to exuberant and often naive young people in college, the FDA’s approval of the overdose-reversing drug Narcan [Naloxone] as an over-the-counter [OTC] nasal spray, which can be purchased and administered by anyone without training or a prescription, should come with a warning for universities: “WARNING — Failure To Have Narcan Can Lead to Wrongful Death Legal Liability.”
So warns public interest law professor John Banzhaf, who has been called a “Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” a “King of Class Action Law Suits” and “The Law Professor Who Masterminded Litigation Against the Tobacco Industry.”
He’s also known for starting other litigation movements such as suing food companies whose deceptive advertising increases the epidemic of obesity (including a $12 million win against McDonald’s), suing politicians (including Spiro Agnew) for their ill-gotten gains, suing universities when the pandemic hit and rioters for the damages they cause.
He’s also the author of an influential study of steps universities should take to avoid or at least limit legal liability for deranged shooters who are increasingly murdering students on campus.
As one who teaches the law of torts (civil actions for damages), Banzhaf notes that it’s now very well established that schools and colleges have a legal duty to take reasonable precautions to protect their students from all reasonably foreseeable risks and harms.
On this basis, legal liability has been imposed on universities for student suicides; murder and rape by fellow students; deaths or even injuries caused by hazing; and even for failing to render aid to a student temporarily helpless and therefore in danger from the excessive use of alcohol, fainting including diabetic shock and of course from illegal drugs.
With nothing short of an epidemic of drug deaths among college students from their use of illegal drugs and (often accidental) overdoses, schools and universities have a duty to foresee that a young person on their campus may overdose; in some cases, inadvertently because of Fentanyl.
Up until now, the duty to take reasonable care regarding such a now-clearly-foreseeable risk from drug overdoses was usually satisfied by being sure that the victim was promptly transported to a hospital or other suitable medical facility, or at least calling an ambulance. EMS providers may, in some situations, administer Narcan to a drug-overdose victim.
But now, since the few minutes it takes to call for an ambulance and to have it arrive can literally mean the difference between life and death (or irreversible brain damage and other long term harm) from a drug overdose, and Narcan is readily available and can safely be administered even by people with no medical training, nothing short of having it readily available in campus locations and situations, and of providing it very promptly, can satisfy the legal duty to take reasonable precautions and provide reasonable care.
The same may well apply even to restaurants, as the New York Times has just reported on the growing number of restaurants which believe that they too must have available readily-administered doses of Narcan, just as they also have widely available AED [automated external defibrillator] units for rare instances of sudden cardiac arrest.
Some universities — including the University of Louisville, Western Kentucky University, Centre Colleges, Marymount University, American University, University of Wisconsin, Virginia Commonwealth University, Bridgewater State University, UT Austin, Ithaca College, UW-Oshkosh, Colorado State University, UW-Milwaukee, Bluefield State University, University of Central Arkansas and Metropolitan State University — have recognized that the risk of a drug overdose on campus is so serious and foreseeable that they have made Narcan widely available on their campuses.
With so many universities already recognizing the need for this simple and inexpensive protective step, it will be harder for other universities where an overdose death occurred to argue that the risk at their universities wasn’t serious enough to warrant the tiny cost of acquiring doses of Narcan — especially once plaintiffs’ counsel reminds jurors of the university’s sky-high tuition, huge endowment and six-figure salaries for professors and many bureaucrats.
If a death does result from a failure to immediately administer Narcan, families are likely to file a wrongful death action to recover damages; and a jury will see a sympathetic tearful family talking about a wonderfully talented son or daughter at one table, and sitting at the defense table a representative of a university with a huge endowments and six-figure salaries for professors and many bureaucrats, but still too cheap to buy even a few Narcan sprays.
“Reasonable care,” as the law uses that term, means care which is “reasonable” in terms of expense, ease of administration, lack of risk or other countervailing considerations, etc., explains the law professor, so it’s important to have Narcan readily available on campus.
While it probably isn’t necessary, to satisfy the reasonable care requirement, for every single professor and/or classroom to have Narcan, it probably should be carried by every member of the campus police; and especially in university police vehicles where there’s far more space, and where other emergency implements (e.g., fire extinguishers, rescue blankets, Halligan entry tools, etc.) are typically carried.
It would also probably be wise to have Narcan available in at least one administrator’s office or other appropriate room in every building om campus, and to have signs posted noting its location; signs similar to those which now indicate the location of the nearest AED [Automated External Defibrillator used for sudden cardiac arrests], suggests Banzhaf.
Emergency Narcan probably should also be readily available in other places where students might congregate and/or use drugs, including dormitories, dining halls, gymnasiums and other workout facilities, libraries, etc.
Since sudden cardiac arrest is very rare among school- and university-aged students, it might be even more important to have a sufficient number of Narcan sprays readily available than the many AEDs which are so often found in educational institutions, said Banzhaf.
Lawyers who specialize in suing schools and universities are probably waiting breathlessly for the first death which could have been prevented by the prompt administration of Narcan which simply wasn’t available, the law professor suggests.
So he is warning universities, including his own, not to delay in acquiring a sufficient number of Narcan sprays to save lives and limit possible legal liability, preferably before the fall semester.
John F. Banzhaf III, B.S.E.E., J.D., Sc.D., Professor of Public Interest Law Emeritus George Washington University Law School; “The Man Behind the Ban on Cigarette Commercials”; FAMRI Dr. William Cahan Distinguished Professor Fellow, World Technology Network; Founder, Action on Smoking and Health (ASH); Inventor of the “Banzhaf Index”
www.banzhaf.net jbanzhaf3ATgmail.com @profbanzhaf