Know liability risks of 'drug seekers' and 'frequent fliers'
Know liability risks of 'drug seekers' and 'frequent fliers'
Commonly used terms are "no more appropriate than racial slurs"
by Staci Kusterbeck, Contributing Editor
[Editor's Note: This is the first in a two-part series on liability risks posed by patients who present to the ED frequently. This month, we'll cover documentation and clinical care of this patient population. Next month, we'll give strategies to avoid violations of the Emergency Medical Treatment and Labor Act.]
Almost every emergency department (ED) staff member is familiar with the terms "drug seekers" and "frequent flyers"—derogatory terms referring to patients who are often viewed as nuisances. However, this attitude may increase risk of both adverse outcomes and lawsuits.
These labels can prevent accurate assessment and treatment of the patient, says Daphne Walker, JD, BSN, RN, an attorney with the Dallas, TX-based law firm Fulbright & Jaworski. "This is similar to the 'boy who cried wolf,' and can be a dangerous situation for the health care worker who is not on guard," she says.
The basic rule to follow is to avoid treating patients with frequent visits to your ED differently from any other patient. "You may think that a patient is probably a drug seeker, but what if they are not?" says Linda M. Stimmel, JD, a partner with the Dallas, TX-based law firm of Stewart Stimmel. "That is more of a concern. If there was any type of 'red flag' or mark on the chart of someone suspected to be a drug seeker, I would be concerned the staff would not give that patient the attention they would give any other patient."
If a plantiff's attorney asks "If you had not seen a drug history or suspected that the patient was drug seeking, would you have done anything differently for this patient?" you want the honest answer to be "no," says Stimmel.
Your biggest liability risk is failing to look beyond the label of "drug seeker" and provide the necessary evaluation and care for each individual presentation, says Stephen A. Frew, JD, vice president and risk consultant with Johnson Insurance Services, a Madison, WI-based company specializing in risk management for health care professionals. "When comments in the record evidence a hostile attitude or a judgmental or presumptive diagnosis, juries may consider this, which may influence the size of an award," says Frew.
A potential claim for failure to provide indicated pain relief could conceivably arise, but is more likely to be an add-on count for an adverse outcome to increase the value of the claim, says Frew.
Another risk lies in breaches of patient privacy regulations, both state and federal, that can result in institution liability and licensure or malpractice claims against the facility and the individual person committing the breach of privacy. For example, ED staff reporting the patient's name to a drug abuse hotline or "warning" others outside the patient's immediate care providers are both potential violations.
A third risk involves libel or slander. Typically, the standard is one of knowingly making a false statement, such as to an insurance company or employer, or including a statement that turns out to be false with a conscious disregard for whether it is true or false. "If a health care provider maliciously or judgmentally includes such a statement, significant liability could result," Frew says. "Damages in such a case could be substantial."
To reduce risks, do the following:
- Work with facts.
Patients may go to multiple EDs to obtain the specific drugs they are seeking, but there is no way for the staff to know that information unless told by the patient, says Stimmel. However, if a patient claims he/she is allergic to low-level pain medications in order to get narcotics, try to confirm this information if possible, she says.
"There is no foolproof method," says Stimmel. "If it is possible to check with the primary care physician, that is great. Still, we must be able to rely on what a patient tells us, if they appear competent. We do not have to be Sherlock Holmes but just show we were reasonable in our efforts."
If a physician has knowledge that the patient has no true allergies to low-level, non-narcotic pain medications, the physician has a right to take that into consideration when deciding on the choice of treatment for the patient, says Stimmel.
An ED physician should not be mandated to provide narcotic drugs, but must document all necessary clinical elements to justify the use of non-narcotics, adds Frew.
When there is concern about abuse, filling prescriptions or giving take-home doses, the number of doses provided should be limited to that necessary for the patient to make it to their regular physician or pharmacy, says Frew.
- Document objective facts only.
The terms 'frequent fliers' and 'drug seekers' reflect a judgment and non-compassionate attitude in the ED, says Frew. "They are no more appropriate than racial slurs," he says. "These labels are not recognized in court cases, and these patients — along with alcohol-intoxicated patients — are the very ones who will result in lawsuits and citations," he adds.
The words should never appear in a medical record unless they came out of the patient's mouth — and then they should be written down verbatim and enclosed with quote marks, says Frew. "ED humor often isn't humorous to patients and their families, and should be handled in the same manner with staff as potentially offensive sexual jokes, racial slurs, or political comments," he says.
Statements about drug seeking behavior should never appear in the patient's chart, says Sandra Schneider, MD, ED physician at the hospital and professor of emergency medicine at University of Rochester (NY). "Instead, the behavior should be factually described and the conclusion left up to the reader."
For example, the ED physician could document, 'This is the 15th visit in two months by Mrs. Smith asking for pain medication."
Never document subjectively, and always document objectively, advises Stimmel. "If the patient leaves the ED, without treatment and has a bad outcome, do we have liability risk if we called them a drug seeker? I would be in a much more difficult position defending an ED physician if the patient had been labeled in any way," says Stimmel.
An objective assessment based on clinical indications and known patient history must prevail over any subjective supposition about the patient's intentions, Walker says. "Unfortunately, patients can sue for any or no reason at all. However, damages must be proven at trial, and adequate documentation is the physician's best proof that he or she properly assessed and treated the patient," she says.
It is never appropriate to speak of a patient in a derogatory manner, especially when the patient, the patient's family, or other patients might overhear, says Walker. "A simple slip of the tongue may undo all that the physician tried to do in objective clinical assessment and documentation," she says.
- Always document that patients were referred.
If you tell the patient to see her physician on Monday, she does not follow up and has an adverse outcome, that patient may sue the ED for medical negligence, says Stimmel. "I have defended lawsuits based on that scenario," she says. "If the fact that the patient was told to follow up is correctly documented in the chart, it makes the lawsuit very defensible." Stimmel suggests writing the recommendation for follow-up care on the patient's discharge instructions and requiring the patient to sign-off on the instructions, verifying they received the information.
- Identify frequent visitors with a quality improvement focus.
What's the single best method of deterring drug seeking patients from coming to your ED? Provide a thorough examination, document thoroughly, and have a uniform approach to what justifies drug prescription in the ED, says Frew.
"If all of the physicians politely stick to the same objective standards, persons seeking drugs learn your facility is not susceptible to 'doctor shopping' and go elsewhere," he says.
Another approach is to call in a psychiatrist or pain specialist to evaluate the patient if you're uncertain about whether the patient needs narcotic painkillers. "Actual drug seekers are often intimidated with the risk of psychiatric admission," says Frew.
Flagging an individual patient's chart in any way is a bad practice—instead, develop strategies to reduce visits and improve outcomes of frequent ED visitors as a group. "For example, if a patient is in a group of patients who have five visits each month, you can look at why they came in, what are their different issues, and what can you do better to work with these patients," says Mary Jean Geroulo, JD, a health care attorney with Stewart Stimmel.
Patients with multiple presentations are at increased risk for both errors and selection of these cases for compliance review by regulatory agencies, says Frew. "Tracking should be by quality mechanisms to assure the proper attitude toward the visits," says Frew.
For instance, examining physicians should specifically reference prior charts in their current assessment, and note similarities and differences as itemized observations without a judgmental tone, he says. "But prior testing that may have changed in the interim should be redone for EMTALA compliance purposes," says Frew.
University of Rochester's ED is currently working on protocols to differentiate chronic pain from acute pain and neuropathic pain from other types of pain, with the goal of improving care in this patient population, says Schneider. Chronic pain management calls for long-lasting medications such as methadone or fentanyl patches, whereas acute pain requires medications taken every 4-6 hours, she explains.
"Neuropathic pain does not respond well to narcotics and often requires tricyclics or neurontin," says Schneider. "There is some evidence that poorly controlled acute pain contributes to chronic pain syndromes."
Patients who come to the ED frequently should have individualized protocols, preferably developed by the patient and his/her primary care physician, at a time his/her pain is under control, says Schneider. The protocol should outline exactly what pain medication, the amount, and the frequency the patient will be given, and also the amount of prescription medication the patient will receive at discharge. "Such a protocol decreases the tension over the visit and decreases length of stay," says Schneider.
However, EDs still have a responsibility to not enable prescription drug diversion or to allow someone's abuse of the health system and themselves to go unchecked, says Larry B. Mellick, MD, MS, FAAP, FACEP, professor of emergency medicine and pediatrics at Medical College of Georgia in Augusta. He suggests the following strategies:
- Show or report verbally to the patient a list of visits and the specific complaints and point out that the visits raise important questions. Have a specific conversation with the patient about his/her multiple visits to the ED, and document this conversation in the chart.
- Consider asking the patient directly if he/she suspects that he/she may be dependent on narcotics or have a history of drug dependency in the past, and document the patient's exact words in the chart.
- Use your resources to confirm the patient's story whenever possible. Whenever a patient states he/she has an appointment with the pain clinic or a specialist, a staff member could call and confirm. "If, as often is the case, the patient's report is not accurate, document this in the chart," says Mellick.
- If the patient states he/she is visiting from out of town, have the clerical staff confirm the address and telephone number provided. If these are not accurate, document this information in the chart.
- Document in the chart statements that raise 'red flags', such as an additional and unrelated request to the nurse for Hycodan® cough medicine at the time of discharge. "The requests of these patient's will often change, expand, or show contradictions." says Mellick.
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