Drug Diversion Creates Significant Liability Risk
EXECUTIVE SUMMARY
Drug diversion is a major liability risk for healthcare organizations. Patient safety can be compromised and organizations can be held accountable for lax prevention efforts.
- Fentanyl is the most commonly diverted drug.
- Many employees suspected of diversion are only moved to other facilities.
- Drugs can be diverted from patients, dispensing cabinets, and unused medications.
Drug diversion is a perennial problem for healthcare organizations. Risk managers should know there is substantial liability risk from the possible effects on patient safety. This problem is not improving, industry sources say — and some things are getting worse.
The risks to employers can take more than one form, says Carol Michel, JD, partner with Weinberg Wheeler Hudgins Gunn & Dial in Atlanta. First, an employee who steals a narcotic and uses it while at work is a danger to patients.
“They have an employee or provider who is working for them who, based on their impaired judgment, could commit malpractice or similar acts, which the employer could then be held liable for,” Michel explains. “That is true particularly if the employer did not enact the appropriate safeguards to prevent diversion.”
For example, the patient may sue for unnecessary harm if an anesthesiologist is stealing pain relievers prescribed for the patient, Michel says. Or, the employer could be sued if a healthcare employee diverts drugs and causes a car accident while under the influence.
“The person under the influence also might make a medical error, and the employer is sued for medical malpractice,” Michel says. “There also might be some creative thinking by a lawyer when an employee is diverting drugs that make their way to the black market.”
Drug diversion cannot be completely prevented in a healthcare workforce because certain employees, such as anesthesiologists, must have access to restricted drugs. But healthcare employers must take all necessary steps to minimize the risk of diversion.
“Even if it is impossible to completely prevent diversion, you must be able to show you did all you could to limit diversion and promote patient safety,” Michel says. “If you can show that you are doing what the current thinking is to identify and stop diversion, certainly that works in your favor when any claims are made. You want to show that you recognized it is an issue and you took reasonable steps.”
Diversion Happens Everywhere
It is difficult to overstate the seriousness of the drug diversion risk, says Jacqueline von Zwehl, CEO of Scripps Safe, a company in Naples, FL, that provides narcotics transportation, storage, and dispensing options. Mathematically speaking, it is not a question of whether you have a drug diversion problem, she says — you already do.
“We have data showing that 14% to 15% of all healthcare employees have or have had a drug addiction problem. The question is whether you know how to identify the problem, how bad it is, and [if] you know how to address the risks,” von Zwehl says. “These are the questions risk managers should be asking themselves. You have to acknowledge that if you are a healthcare employer, you have a drug diversion problem, and the real question is how you are handling it.”
There are several ways to mitigate the risk, von Zwehl says. Consultants can come in and assess operations, giving a thorough and honest outsider’s assessment of the organization’s strengths and weaknesses regarding drug diversion. A key step is to ensure no known risk gaps are overlooked.
“Internally, it is difficult to determine those risks because you are understandably blinded to some things that might be more obvious to an independent third party,” she says. “Additionally, it gives you liability protection to have a third party come in and assess your operations. You can say that you brought this company, in they made recommendations, and here is how you implemented those recommendations.”
Dealing with the human side of drug diversion can be tricky, von Zwehl says. No organization wants to treat valued employees like potential drug abusers, or expect employees to look at co-workers in that light, but it is important to educate staff about the potential for drug diversion and how it can affect patient safety. Policies and procedures must be in place for employees to report their concerns if something involving restricted drugs does not seem right.
“We know that the problem is getting worse, not better. The statistics we’re seeing from various reporting agencies is that drug diversion is on the rise,” von Zwehl says. “It’s happening across the entire healthcare spectrum.”
Unused Medications at Risk
Some drug diversion occurs with medications that are unused by patients and improperly discarded. A recent report from Stericycle, a compliance company based in Bannockburn, IL, revealed drug diversion is the top concern regarding the improper disposal of healthcare-generated waste.1 In a recent survey of healthcare workers, more than half (56% of providers and 60% of administrators) said improperly disposed pharmaceutical waste is one of the biggest contributors to the opioid epidemic.
“Not only do healthcare providers and administrators alike believe that improper pharmaceutical waste disposal is one of the biggest contributors to the opioid epidemic overall, but the majority of providers (93%) and administrators (88%) surveyed also have concerns with pharmaceutical management in an at-home care setting,” the report authors noted. “Fifty-two percent of providers and 64% of administrators also believe it has been easier for opioids to get into the wrong hands during the pandemic. These factors combined are a cause for concern, and the majority of providers (92%) and administrators (88%) agree that this puts the health and well-being of their communities at risk.”
Fentanyl is consistently the drug most likely to be diverted, according to Doug Zurawski, PharmD, senior vice president for clinical strategy at Kit Check, a company in Alexandria, VA, that provides automated and intelligent medication management. Many hospital employees suspected of drug diversion move onto other facilities before investigations are closed or confirmed, he says.
Radio frequency identification (RFID) is an increasingly common tactic for combatting drug diversion. Some technology available shows when medication containers have been opened. The problem remains significant, Zurawski says, with 50% of hospitals reporting to his company that they did not know what they would do if they identified a possible diverter.
The three most common areas targeted for diversion of medications are from patients, dispensing cabinets, and wasting of medications.
“Over 92% of those we surveyed believe that the processes and solutions they have in place make it, at a minimum, somewhat difficult to divert medications,” Zurawski says.
Hardware, Technology Solutions Available
Hardware that can make drug diversion more difficult, such as secure dispensing cabinets and technology that can track sensitive drugs, are some of the best solutions available to healthcare organizations, von Zwehl says. But she notes these solutions will not be effective without a comprehensive drug diversion program.
The diversion, substation, adulteration, or dilution of any drug intended for a patient can significantly affect patient safety and lead to substantial liability risk, von Zwehl notes. The consequences can include serious injury or death. Most often, the consequences result in a patient experiencing serious pain and distress that could result in liability. Unrelieved pain can lead to direct physical consequences as well.
“These things are happening across the country. For everyday people who are the recipients of healthcare, drug diversion is a threat to the integrity of the entire healthcare system,” von Zwehl says. “You can’t have healthcare without the safe flow of narcotics. If that is compromised in any way, it is a disruption to the entire healthcare system.”
Drug diversion occurs in all healthcare settings, even veterinary care. In addition to drugs popular for abuse, like fentanyl, diversion can happen with non-recreational drugs that are high value, like birth control drugs, von Zwehl notes. In those cases, the concern is more over the monetary loss than any threat to patients.
“In the hospital setting, we’re looking much more at narcotics like fentanyl, the oxy family, painkillers of all types. Those are more serious and have much more frightening consequences when they are diverted,” von Zwehl notes.
The COVID-19 pandemic has prompted a huge rise in addiction to both legal and illicit drugs, von Zwehl says. This has caused an increase in drug diversion within healthcare facilities. In many cases, a user begins with a lawful prescription for a painkiller and then migrates to doctor-shopping, street purchases, and if the user has any access within a healthcare organization, drug diversion.
Among healthcare employees, the highest risk for drug diversion is with nurses, von Zwehl says. They have extremely high-stress jobs and relatively easy access to controlled substances.
The drugs most at risk for diversion within a hospital are opioids, depressants, and stimulants like Adderall and Ritalin. Stimulants are most popular for diversion with students and other young people, while depressants are more popular with older people, she says. Opioids are a drug diversion risk across all age groups.
“Opioid abuse usually begins post-surgery or after some medical event in which you are legitimately prescribed opioids for the first time,” von Zwehl says. “It becomes something that crosses the line from legitimate medical use to an actual addiction. If you are a healthcare employee, you may have access to these drugs that the average person does not.”
In a hospital setting, diversion is almost always committed by employees, von Zwehl says. Patients rarely are involved, but pharmacies also can be subject to intrusions by outsiders.
Diversion can happen at any point in the supply chain. It may be when the medications are delivered to the hospital, at some point in the pharmacy process, or at the patient’s bedside.
“There can be a break in the chain of custody in which someone figures out a way to divert a part of the medication inventory, thinking no one will notice,” von Zwehl says. “It’s a problem that needs constant attention.”
REFERENCE
- Stericycle. Healthcare workplace safety trend report: Key insights to safeguard the environment and the environment of care. 2022.
SOURCES
- Carol Michel, JD, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta. Phone: (404) 832-9510. Email: [email protected].
- Jacqueline von Zwehl, CEO, Scripps Safe, Naples, FL. Phone: (844) 472-3379.
- Doug Zurawski, PharmD, Senior Vice President, Clinical Strategy, Kit Check, Alexandria, VA. Phone: (786) 548-2432.
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