Are you guilty of negligent prescribing?

“Prescription drugs are killing patients at an alarming rate.” “Overdoses from prescription painkillers have risen for 10 straight years.” “Over 40% of deaths involving prescription drugs were due to opioids.”

“These are common things I hear from the plaintiff’s attorney while defending physicians in claims alleging negligent prescribing,” reports Kathrine E. Fisher, JD, a partner with Yates, McLamb & Weyher in Raleigh, NC. All are accurate statements based on recent statistics from the Centers for Disease Control and Prevention, she adds.

After a patient died from methadone toxicity a week after a physician prescribed the drug, the family filed a wrongful death lawsuit. “The physician also had to respond to a complaint and investigation by the medical board. It was not a clear case of liability for the physician,” says Fisher, who defended the physician named in the lawsuit.

There was a question as to whether the dosage prescribed was appropriate, but the patient had a history of illicit drug use and “doctor shopping” for opioids. There was also evidence that, in the days prior to his death, the patient might have taken methadone or oxycodone that he obtained from the streets.

However, due to the physician’s unfamiliarity with the medication dosing and the possibility of a large damage award, the lawsuit with the family was settled. “The investigation by the medical board resulted in a consent order limiting the physician’s ability to prescribe narcotic medications,” adds Fisher.

Plaintiff must prove this

To prove negligent prescribing, generally the plaintiff must prove that the physician was negligent, and that the negligence was a proximate cause of his injury, says Fisher.

“The plaintiff must prove that the defendant physician or other healthcare provider violated the standards of practice with respect to the prescribing of the specific medication involved, and that the negligence was a cause that a reasonable and prudent healthcare provider could have foreseen would probably produce his injury,” she explains. Fisher says to consider these practices to reduce legal risks:

• Have a pain management contract with the patient.

“This is good documentation to have in the chart,” says Fisher. The contract should include an acknowledgement by the patient that you have discussed with him or her possible addiction and potential side effects of the medication being prescribed, and an agreement that the patient:

— will not accept narcotic prescriptions from other providers;

— will take the medication as prescribed;

— will refrain for using illicit drugs or alcohol while taking the medication;

— will inform you of other medications being taken, particularly antidepressants, benzodiazepines, or other medications that might have an adverse interaction.

• Check the patient’s prescription record if you have access to a state database.

“Put documentation in the chart that you checked and the information you learned,” says Fisher. “Check the database on a regular basis while you are treating a patient with narcotics.”

• Obtain a copy of the patient’s prior medical records from the provider previously treating him or her.

If a patient is seeking treatment for chronic pain or an injury, for example, the prior medical records might contain valuable information concerning use of narcotic medication or other illicit drugs and alcohol.

A physician is legally required to do that which the standards of practice among other members of the same profession do to find out what other medications a patient is taking, notes Fisher. “Patients lie or forget to tell their physician about a new medication. The best course of conduct is to do what is reasonable under the circumstances,” she says.

Routinely ask the patient what medications he or she is taking, check the available controlled substance database, and review the notes that specialists, hospitals, or other healthcare providers send to you to see if medications have been prescribed, Fisher advises.

• Refer the patient to a pain specialist when appropriate.

“Whether or not the standards of practice require that you refer a patient to a specialist, it is always beneficial to show that you are being proactive about a patient’s complaints of pain,” says Fisher.

• Make a detailed note of each visit with the patient in the chart.

“What you write in your note should support why you prescribed the medication and the dosage,” says Fisher.


Kathrine E. Fisher, JD, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6054. Fax: (919) 582-2530. Email:

Catherine J. Flynn, Esq., Weber Gallagher, Warren, NJ. Phone: (973) 854-1070. Fax: (973) 242-1945. Email: