Private Law Theory

ABSTRACT
The introduction of AvertD, a genetic test to assess an individual’s risk of developing opioid use disorder, will expose physicians to liability. Critics of the test argue that the test itself is unreliable, often resulting in false positives, which will lead to potential undertreatment of pain, and false negatives, which will lead to inappropriate opioid prescriptions. But if the test is available, physicians will use it. And often, due to a combination of genetic determinism and genetic illiteracy, physicians will rely on the test to make opioid prescription decisions without also looking to the environmental, socioeconomic, lifestyle, and other factors that contribute to an individual’s opioid use disorder risk.

Genetic test results that purport to predict opioid use disorder – or really, any behavioral or psychiatric trait or diagnosis – may have enormous consequences for individual lives. When patients are harmed by physicians’ negligent clinical decision making, they can often turn to tort law for a remedy. This Article covers various physician liability scenarios, from inappropriate prescribing based on genetic test results to failure to test and informed consent issues. Physicians could face liability for prescribing opioids after a positive test result, or for denying pain medication due to false positive test results, or for prescribing opioids to patients despite negative results that prove false, or for failing to administer the test at all. The Article concludes that existing tort frameworks offer insufficient protection for patients and fail to ensure appropriate integration of these tests into clinical practice. And relying on tort law will not mitigate the individual and societal harms raised by the introduction of a polygenic risk score test for opioid use disorder.

Gutmann Koch, Valerie, Physician Liability for Genetic Risk-Based Prescription Decisions (March 14, 2025).