(Bloomberg Law) -- Ryan Wroblewski took OxyContin and oxycodone for half his life until fatally overdosing in 2018 at age 33.

His mother, Ellen Isaacs, has fought OxyContin manufacturer Purdue Pharmaceuticals ever since. As part of Purdue’s proposed bankruptcy settlement, qualified individual victims or families can receive payments ranging from approximately $3,500 to $48,000, based on factors like length of opioid use, addiction, overdose, and death caused by opioids.

But to get a share of the $750 million payment pool for individuals, Isaacs must show proof that Wroblewski was prescribed Purdue-branded OxyContin.

“I went to different doctors that I knew that he had seen when he was in my care around my house and I just followed along and everybody said they were out of business,” Isaacs said. “I went to pharmacies and they said, ‘No, we can’t help you here.’”

Isaacs and other relatives of opioid overdose victims say the stringent documentation requirements effectively lock them out of making claims against Purdue, especially if their loved ones died a number of years ago.

Some states require pharmacy records to be destroyed after a certain period of time for privacy reasons. Relatives face even more barriers in obtaining records of someone who died. Those who acquired opioids illegally wouldn’t generate any pharmacy paperwork at all. And physicians are only required to hold medical records for a certain number of years, varying by state.

Taylor Wall of Andrews & Thornton, an attorney representing opioid victims in the Purdue bankruptcy, said Purdue’s trust distribution procedures are more complicated than those of Mallinckrodt Pharmaceuticals, a generic drug company that filed for bankruptcy in 2020, though they impose similar qualifications on proving the use of a qualified opioid.

“The height of the opioid epidemic was at least somewhere between 2000 to 2010, depending on what state you may have lived in where the opioid epidemic really rose, so that makes obtaining records for a lot of individuals very difficult,” Wall said.

Nonexistent Records

According to the Centers for Disease Control, over 564,000 people died from opioid overdoses since 1999, including prescription and illicit opioids. Around 135,000 individuals filed personal injury claims against Purdue for their loss of loved ones and opioid addiction treatment expenses by the July 2020 deadline.

People who had access to information necessary to fill out a claim weren’t initially required to submit medical records, said Cynthia Munger, a member of the Purdue Bankruptcy Ad Hoc Committee that sought to hold Purdue accountable during the bankrputcy on Accountability. During the early stages of the bankruptcy process, the notion of potential rejection due to lack of prescription proof was “not properly articulated up front, and later buried in pages of legalese,” she added.

“You had millions and millions of illegal pills on the streets that people used and not one of them legitimizes the claim,” Munger said. “Many people never even had a chance to file a claim.”

Liz Fitzgerald’s son Matthew, who lived in Windsor Locks, CT, received multiple OxyContin prescriptions from hospitals and physicians after a car accident before 2007. However, she said she couldn’t access his hospital records beyond 2017 because Connecticut law prohibits hospitals keeping those records longer than 10 years. She said the CVS pharmacy records also weren’t available.

“I know my reality and that was really difficult,” she said.

The initial, lower threshold to file without medical records provided more finality for Purdue, while giving people more time to obtain medical records needed to prove their claims later, Wall said.

But given that pharmacies selling outsized quantities of opioids tended to be small and rural ones that “you might not expect to have kept longstanding records from under Medicare or Medicaid programs, then you have to ask whether there’s an unreasonable burden for that subset of people,” said Maria Glover, professor of law at Georgetown University Law.

Read More: Purdue Pharma Victims Are Getting Caught in Bureaucracy of Harm

Nuances in Claims

While more than 20 states mandate hospitals to retain medical records for at least 10 years, there is often a lack of guidance regarding record retention for individual physicians, according to Cariend, a medical records managing company.

In Florida, where Isaacs lived, physicians are only required to hold medical records for five years from the last patient contact. “There are many more than five years there and I cannot get my hands on any of his records,” Isaacs said. “It’s just really daunting, and you just run around in circles.”

Wall said individuals who can’t obtain their medical records can submit two affidavits, one written by themselves and one from individuals who have “first-hand knowledge” of the claimant’s use of qualified opioids. But the claims administrator could disregard affidavits if they don’t sufficiently prove Purdue product use, Wall said.

Law enforcement, court records, substance abuse, rehabilitation, or mental health records of the historical use of Purdue opioids can also support the qualification for the settlement trust, according to the procedures.

“The only nuance to that is the historical record or reference to a qualifying opioid has to have been made before Purdue declared bankruptcy, which was September 15, 2019,” Wall said.

Tier System

If claimants successfully present one form of valid evidence – prescription records, historical references, or affidavits – their claims will advance to the “tier system.”

Claimants with evidence of less than six months of Purdue opioid are to receive a $3,500 base payment. Individuals showing more than six months of Purdue opioid use qualify for the next tier, with the top tier being those who can demonstrate Purdue opioid addiction or death on OxyContin. Those claims are assigned points ranging from 6,000 to 40,000, convertible to estimated payouts of 80 cents to $1.20 per point based on the funds available.

Although six months of using Purdue opioids didn’t need to be continuous, individual victims like Katherine Moorhead of Kentucky said it is difficult to prove six months of Purdue medication use and dosage to qualify for the higher settlement tier.

While undergoing a chemotherapy type treatment in 2002, Moorhead was prescribed different opioids for eight months, including Purdue Products, and again after numerous surgeries several years later, based on all the medical records she requested over the years.

When Moorhead presented those records, a doctor’s letter stating she was overprescribed by opioids for eight months, and an affidavit of her ex-husband to a plaintiffs’ lawyer in 2022, she was told there weren’t enough references to Purdue-made opioids to show addiction or more than six months of use.

“Proving addiction to Purdue’s products is a very high hurdle to overcome, especially because the real difficulty in doing so is proving that Purdue in particular leads to a specific client becoming addicted to opioids, rather than any other opioid manufacturer,” the lawyer wrote to Moorhead, in an email obtained by Bloomberg Law.

Settlement Near Payout

The $6 billion bankruptcy settlement can proceed despite a potential U.S. Supreme Court appeal in the case, the US Court of Appeals for the Second Circuit ruled on July 25. That court approved the settlement on May 30.

Earlier in July, US Trustee, the Department of Justice’s bankruptcy watchdog, expressed intention to seek a Supreme Court review because the settlement would protect members of the Sackler family, Purdue’s owners, from liability in exchange for relinquishing their ownership of the company and money. Purdue on Aug. 4 urged the Supreme Court to reject the DOJ’s push to halt the bankruptcy plan.

Unless the Supreme Court grants the request of the US Trustee, the US District Court in New York would likely approve the plan, Wall said. That would enable a swift process of reviewing and paying out personal injury claims to individual victims and states.

“If the US Trustee is successful in staying the mandate, once again it will be responsible for halting the flow of billions of dollars to communities and individuals who desperately need it,” said Sean Higgins, a partner at Andrews & Thornton.

‘Blood settlement’

Even if claims are accepted, individuals would receive little money as the plaintiffs’ lawyers would charge them around 40% of their final reimbursement, said Ed Bisch, founder of Relatives Against Purdue Pharma and a member of the ad hoc committee on accountability.

“The plaintiff’s lawyers probably did the best they could within the system,” Bisch said. “But I call the settlements ‘blood settlements,’ because, without all the people who died and were harmed, there’ll be no multibillion-dollar settlement. They’re in bankruptcy for a reason.”

Wall said individual claimants should receive some award fairly based on the strength and merits of their case.

“We want as many people as possible to receive compensation for their injuries, but there has to be some outward edge of what constitutes a successful claim in order to protect those with meritorious claims,” he added.

Seeking Accountability

The division of Purdue’s settlement money was negotiated and litigated between states and opioid victims. Both the public entities and Purdue had consent rights over the trust distribution procedures, Higgins said.

“My clients and the other victims are the direct victims of the crisis,” Higgins said. “States’ claims are derivative and ride off the tragedy and suffering of my clients, and yet they’re getting most of the money.” He added that states will receive more than 80% of the $6 billion deal, depending on the final settlement resolution.

For Isaacs, Moorhead, and many other individual victims, their motivation for joining the Purdue bankruptcy was to hold the Sackler family accountable.

However, bankruptcy hasn’t been viewed as a mechanism for holding corporations accountable for wrongdoing, according to Adam Zimmerman, a professor of law at the University of Southern California Gould School of Law.

The public desire to make Purdue pay back every dollar it gained from harming people isn’t feasible. The current deal may be the best one possible, said Lindsey Simon, a bankruptcy law professor at the University of Georgia School of Law.

“It doesn’t necessarily look like justice but I don’t know that there’s a better outcome available in any other system,” Simon said. “It’s not a bankruptcy problem. It is a societal problem.”

To contact the reporter on this story: Cici Yongshi Yu at cyu@bloombergindustry.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Maria Chutchian at mchutchian@bloombergindustry.com

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