EXECUTIVE SUMMARY

Ethicists can help resolve issues in cases involving high-dose painkillers by:

  • using highly publicized cases as a teaching tool;
  • determining which cases should be escalated automatically;
  • helping resolve conflicts among clinicians.

A recent highly publicized case involved a physician who allegedly ordered high-dose painkillers, which killed many hospitalized patients.1

Thankfully, most ethicists will not encounter a case like this in their careers, but they still can learn much from it, says Bojan N. Paunovic, MD, FRCPC, president of the Canadian Critical Care Society.

The case, says Paunovic, “will most likely be looked at as a one-off. Something more formal needs to occur in institutions to highlight it.” Ethicists can use the case as a teaching tool and opportunity to think through other problematic issues involving high-dose painkillers. Ethicists should be ready for these scenarios:

There could be a rogue clinician euthanizing patients. “Euthanasia is illegal in every state, even when carried out to reduce patient suffering,” notes Janet L. Dolgin, PhD, JD, co-director of the Hofstra University Bioethics Center. Dolgin also is director of the Hofstra University Gitenstein Institute for Health Law and Policy.

To prevent this worst-case scenario, “ethicists could add an important voice on a team aimed at crafting institutional responses to emerging problems,” Dolgin offers.

Upon investigation, documentation should show dosages were appropriate for the patient’s condition. “It’s not legal to provide a dose that you know will kill a patient, though sometimes patients do ask for this,” underscores Sharona Hoffman, JD, professor of law and bioethics at Case Western Reserve University.

If a clinician is harming patients intentionally, one may hope systems would trigger an immediate investigation. However, this does not always happen. “This is true not just in medicine but all industries,” Paunovic explains, adding that wrongdoers might explain away incidents separately without anyone realizing the big picture. “Smaller incidents occur in real time. It’s hard to appreciate the magnitude of the issue overall.”

The movement toward multidisciplinary models of care is helpful in this regard. With more people involved in a case from different disciplines, it is more likely wrongdoing will be detected. This includes ethicists. “The ethicist is well-entrenched in the system,” Paunovic says. “If there are legal issues that need to be followed up on, the ethicist can be an objective sounding board.”

A policy that automatically escalates certain kinds of cases (such as a physician ordering atypical doses of pain medication) can protect both patients and the institution. The specifics on how it happens will vary somewhat depending on the hospital. “But it should essentially be an expectation for a more rapid response/assessment of a concern,” Paunovic says. “In most ICU settings, there’s usually a rounding pharmacist.”

This person also could be a physician, trainee, bedside nurse, charge nurse, or someone else who reports possible wrongdoing. Regardless, the process starts. “Escalation sometimes gets to be synonymous with a complaint. Not everything that gets escalated is bad medicine,” Paunovic cautions.

A cultural shift is needed to make people understand that the escalation process is not meant to be punitive. “This is a system to make sure we are on the same page. It’s similar to how the QI movement has progressed,” Paunovic says.

Someone on the clinical team is uncomfortable with administering a high dosage that a physician ordered. It is not uncommon for clinicians to disagree on the best plan of care for a patient. Sometimes, opioids are at issue (the dosage, or whether they should be administered at all). “Ethicists might fruitfully take part in resolving disputes among clinicians about appropriate doses of opioids for hospital patients,” Dolgin says.

Ethics can help if this kind of conflict cannot be resolved. Notably, clinicians’ discomfort does not always stem from a dose that is too high. “There certainly are cases when opioids are not prescribed but should be,” Dolgin notes. For instance, sickle cell anemia patients who arrive at an ED may receive inadequate pain relief. “Bias may account for some of the refusals to provide adequate pain control,” Dolgin adds.

On the other hand, nurses might express discomfort giving a high dose of pain medication. In that case, ethicists can explore the ordering clinician’s reasoning. “As an ethicist, you don’t have a role in determining the correct dose. You do have a role if the dose ordered is making someone on the team uncomfortable,” Paunovic observes.

Simply airing the concern can help in this situation. “You can always have atypical doses for valid reasons,” Paunovic says. “There may be a very valid reason that’s not being properly explained.”

An extremely high dose could be appropriate. Regardless, says Paunovic, “there may be a negative dynamic here that needs to be explored. People may be concerned about their liability.”

Clinicians are not always comfortable voicing these kinds of concerns to physicians. “The ethicist can be the go-to person,” Paunovic offers.

The ethicist might approach the ordering physician by saying, “Doctor, the team is not comfortable with this dosage. Can we get another opinion?” The idea is to start a group discussion. “It’s an atmosphere of, ‘Let’s talk this through more before I give the dose,’” Paunovic adds.

Various hospitalists may use inconsistent approaches for pain relief. On a given day, one hospitalist may recommend comfort care only; the next day, a different hospitalist disagrees. “It can get difficult for the patient and families if different people are in charge at different times, taking different approaches,” Hoffman notes.

With so many changes and no single physician in charge, the patient’s wish for comfort care may be lost. “Information doesn’t get fully conveyed, or nobody knows what the patient’s wishes are, because the person who talked to them is no longer on shift,” Hoffman explains.

The clinician believes a high dose is necessary but is concerned about potential liability risks. “If it ends up killing the patient, even if not intentionally, there could be allegations of criminal negligence,” Hoffman warns.

The state could criminally prosecute the physician or seek to make an example of the hospital. “There is a fine line [when it comes to] treating patients adequately for pain. Surgery and cancer procedures can cause intense pain, and we want people to get adequate pain relief,” Hoffman says.

But the clinician has to make sure he or she is not doing anything that could lead to criminal charges “At some point, there’s a risk that a patient will die from too much medication. You have to worry about your own liability,” Hoffman says.

Clinical justification for high-dose painkillers should be well-documented in the medical record. “If the family is on board with switching to palliative care and waiting for a natural process to take place, they are not as likely to sue,” Hoffman explains.

Even so, law enforcement could still look into a case that appears suspicious. “You could have state prosecutors who get very aggressive about this and look into the cause of death and whether the patient was given medication that hastened death,” Hoffman says.

Paunovic says this documentation makes successful litigation unlikely: Clinical indications (such as ongoing unrelieved pain) and a second opinion or consultation that agrees with the plan to administer high doses.

Even with solid clinical decision-making, family members who disagree with the decision to switch to comfort care may come forward. “Some may want to take the hospice approach, and others [may] want to keep treating,” Hoffman says.

Physicians may face a threatened lawsuit from either side. “Some people may say, ‘You are just torturing my loved one needlessly.’ These are highly emotional situations,” Hoffman notes.

When things become this heated, ethics involvement is necessary. Consulting the hospital attorney is another option. “Although the legal department is going to focus on how to avoid liability, that can be in conflict with what’s best for the patient in terms of the patient’s comfort,” Hoffman says.

If the physician is confident that further care is futile or that the patient really needs pain relief, “with adequate documentation they should be able to trust their medical judgment,” Hoffman notes.

Lawsuits always are possible, even with the best documentation. If the physician is sued, the case might end up dismissed, or the physician may prevail if the case goes to trial. “But that’s small comfort to clinicians. Even if you win, you can be in misery for years if you get sued,” Hoffman says.

The situation is much less likely to progress to legal action if concerns are seen to have been addressed promptly and explained thoroughly. “People get angry when they feel they are being ignored or brushed aside. They feel they have no option other than legal recourse,” Paunovic says.

REFERENCE

  1. Hassan A. Ohio doctor charged with killing 25 patients in fentanyl overdoses. The New York Times, June 5, 2019. Available at: https://nyti.ms/2YmQspQ. Accessed Aug. 5, 2019.