The growing presence of opioid addicts in healthcare facilities can create a legal obligation to anticipate the patient safety risks they can introduce, says Erin L. Muellenberg, JD, partner with the law firm of Arent Fox in Los Angeles.
“The risk is pretty significant, especially if this patient injury was something that could have been foreseen,” Muellenberg says. “Then there is a duty to guard against it. If the hospital is not doing what is necessary to guard against that injury, then there is going to be a liability.”
Impaired clinicians also pose a significant risk, and the opioid epidemic only heightens the need to prevent theft and misappropriation from patients, she says. A patient injured by an addict’s behavior — whether that person was a clinician, patient, or visitor — could sue for professional malpractice, she explains.
“There is the potential for direct liability exposure, and if the harm is caused by an impaired clinician you have the potential for negligent credentialing exposure,” Muellenberg says. “If you have a nurse diluting pain medications or just not giving them to the patient, the hospital can be negligent for not having looked into that individual’s background.”
Another significant exposure is for subjecting the patient to unnecessary pain and suffering because the hospital did not take proper steps to prevent drug theft, she says.
“There is a lot of talk about overprescribing and keeping drugs out of the hands of addicts, but there also are a lot of requirements for providers to adequately treat pain,” Muellenberg says. “That creates a lot of tension for providers who have to walk that line, and they’re subject to consequences if they err on either side. Then you have to throw in the possibility that the doctor prescribes the pain medication properly, but it never gets to the patient.”
Some hospitals are establishing prescribing-review committees, a medical staff peer review committee that reviews a sampling of pain prescriptions to ensure that the patients’ needs were met. Muellenberg says this is an excellent strategy to address the potential legal risks as well as clinical quality. She also suggests monitoring patient readmissions through the ED, looking for patients on opioids who return within 30 days. If the patient returns because of pain, then opioid theft, addiction, or underprescribing should be considered.
Muellenberg points out that hospitals could be subject to a version of “the barkeeper’s law,” the legal theory that holds an establishment responsible for the damage caused by a drunk driver if it can be shown that the alcohol was not provided responsibly.
“It’s not that different to think that if an addict goes out and does something terrible while high on drugs that you never should have prescribed, you could be held liable,” she says.
- Erin L. Muellenberg, JD, partner, Arent Fox in Los Angeles. Telephone: (213) 443-7595. Email: email@example.com.