As many as 87% of EPs report that the number of patients seeking opioids has increased or remained the same, according to a recent survey of 1,261 EPs conducted by the American College of Emergency Physicians.1

A likely tactic for plaintiff attorneys: Linking an individual’s addiction to a “point-of-origin” prescription, perhaps from an ED visit.

“I have not seen any source addiction claims against acute care physicians, but sooner or later we’ll see someone try a case with this supposition,” predicts John Burton, MD, chair of the Carilion Clinic’s department of emergency medicine in Roanoke, VA.

Legal exposure stemming from opioids prescribed in the ED setting is analogous to the legal risks involving radiation from CT scans performed in the ED, Burton says. Increased cancer risk from multiple CT scans is well-established, as is the risk of addiction from opioid prescriptions. In both cases, a plaintiff attorney would face an uphill climb to prove the ED was liable.

“We know the link, but proving causation back to one specific event or physician is a substantial challenge,” Burton says.

For instance, a plaintiff would have to prove that an inadequate history was taken that would have revealed prior use of narcotics, or the presence of a fentanyl patch went undiscovered.

“It’s like someone coming into a bar who didn’t appear drunk, but who had been drinking elsewhere. You serve them one drink, they leave, and get into a crash — and the bar is liable,” explains W. Ann Maggiore, JD.

Still, the increasing prevalence of prescribed narcotics abuse has made it important for EPs to identify patients seeking medications for non-therapeutic purposes. Maggiore expects to see addicts file some claims against EPs in the near future. “Patients are no longer only suing ‘candy store’ medical practices who liberally dispense narcotics when a loved one suffers an adverse event,” she notes.

There is no question that EDs are seeing a large rise in the number of people seeking opioids. These include individuals who travel long distances in the hopes of obtaining medications from an ED where they are unknown. “People who are addicted to opioid medicines are, unfortunately, going to try to get them any way they can,” laments Kevin G. Rodgers, MD, professor of clinical emergency medicine at Indiana University School of Medicine. Rodgers says that EPs can reduce legal risks involving opioid-addicted patients by:

  • posting clear guidelines in ED waiting rooms with statements such as “We do not prescribe opioids for over 48 hours”;
  • checking available registries before prescribing to determine if the ED patient was prescribed pain medicine recently.

Brandy A. Boone, director, risk resource and education and quality improvement at the Birmingham, AL, office of ProAssurance, suggests that EPs use available screening tools to help determine if a patient could be at high risk for addiction if given opioids. She recommends:

  • EPs should use caution about referring all screening to social workers or behavioral health specialists. “Screening tools should be employed by appropriately credentialed individuals,” Boone says.
  • If the patient complains of acute pain, and there is a need for opioids, EPs should prescribe acute dosages instead of long-lasting or time-release products.
  • If the EP refers the patient to a specialist, the EP should communicate with that specialist about whether any medication was administered in the ED or if a prescription was provided.
  • For patients who arrive at the ED specifically asking for opioids and/or claiming to be on opioid therapy, EPs should resist the temptation to provide opioid prescriptions or IV-administered opioids. “Physicians should be prepared to offer non-narcotic pain relief options, but also to admit patients, or arrange appropriate outpatient care, for those who are suffering from withdrawal symptoms,” Boone offers.

Richard F. Cahill, Esq., vice president and associate general counsel at The Doctors Company, says EPs face “an increasing challenge” in assessing patients presenting with pain management issues. “In response to the increasing scope of the prescription drug epidemic in this country, all state legislatures have enacted, or are in the process of passing, statutes that establish mandatory pharmacy reporting and physician data-accessing requirements,” Cahill notes. It’s possible that an EP could be found negligent if he or she prescribes opioids to an ED patient without checking the available databases that would have revealed the patient was addicted.

“Strict requirements and statutory obligations are set out for individuals and entities covered by the terms of the legislation,” Cahill explains. Monetary fines, administrative penalties, and disciplinary actions by professional licensing boards are possible in the event of a violation. “A court may ultimately determine that as a matter of law, a statutory violation of reporting, accessing, or prescribing requirements mandated by the state’s prescription drug monitoring statute that is alleged in a pending professional liability lawsuit constitutes negligence per se,” Cahill says.

In that situation, the patient-plaintiff does not need to prove independently with expert testimony that the care fell below the community standard. “This significantly enhances his or her chances of prevailing before the jury,” Cahill adds.

REFERENCE

  1. American College of Emergency Physicians. Research offers new insights into the opioid crisis. Available at: http://bit.ly/2hgOT8H. Accessed Nov. 6, 2017.

SOURCES

  • Brandy A. Boone, Director, Risk Resource, Education and Quality Improvement, ProAssurance Companies, Birmingham, AL. Phone: (800) 282-6242 ext. 4494. Email: bboone@proassurance.com.
  • Richard F. Cahill, Esq., Vice President, Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368 ext. 4202. Email: RCahill@thedoctors.com.