Does Accessing Database Help or Hurt EPs Legally?
Info could come up during litigation
If an emergency physician (EP) decided not to prescribe opioids for a patient after learning from a prescription drug monitoring database that the patient had just received a two-week prescription for the same medication from another provider, could the EP be successfully sued for failure to treat? Or would the EP be more likely to be sued if narcotics were prescribed anyway and the patient overdosed?
“EPs are concerned that they will be sued for failing to provide care if they do consult the database and decide not to prescribe. On the flip side, will they be sued if they choose not to access the database and it turns out there was abuse?” says Tara Adams Ragone, JD, a research fellow at the Center for Health & Pharmaceutical Law & Policy at Seton Hall University School of Law in Newark, NJ. “It cuts both ways, and it’s certainly a difficult judgment call.”
Many states provide immunity for reporting information to and/or using information obtained from prescription drug monitoring databases in good faith, though language and scope vary, notes Ragone.
“We are not yet seeing how fully this might be used against doctors. That is part of the liability puzzle that remains unsolved,” says Ragone. “I am not seeing evidence that EPs are successfully being held liable for failing to access databases, but we may see people testing and pushing.”
Prescribe “With Great Care”
Wrongful death cases involving narcotics prescribing are becoming more common, warns Jennifer L’Hommedieu Stankus, MD, JD, an EP with Team Health Northwest Emergency Physicians in Tacoma, WA, and former medical malpractice defense attorney.
“This is a growing area of liability, and plaintiff attorneys are catching on,” says Stankus. “Therefore, EPs must write for prescriptions for narcotics with great care.” TeamHealth Northwest’s ED’s policy that there will be no refills for narcotics, and that chronic pain will not be treated, is clearly posted in the waiting room.
“Further, we track how much narcotic is being prescribed, on average, by each physician in our group, and discuss this at our monthly meetings,” says Stankus. “We give short-term prescriptions and referrals to a primary care physician. This has dramatically cut down on the number of people presenting with drug-seeking behavior.”
EPs should never write for more than a few days of narcotics, and even then, should counsel the patient on the dangers of narcotics and the importance of only taking the amount prescribed and document this, advises Stankus.
Whether or not the EP accessed a prescription monitoring database could become a key issue during litigation involving a patient’s overdose, says Ragone. “What the EP did to assess whether the patient was obtaining drugs from multiple sources will certainly be relevant in an analysis of liability in an overdose situation,” she says. “It could also be relevant in terms of determining whether or not the EP appropriately prescribed.”
Ragone offers these risk-reducing strategies for EPs:
• EPs should know their state’s requirements as to whether they must consult a prescription monitoring program database before prescribing.
“If this is optional, EPs should consider the value that this information can add to their ability to make treatment decisions,” says Ragone. EPs might decide to prescribe for fewer days, or decide to contact the patient’s treating physician, for instance.
• EPs should document that clear instructions were given to the patient on the potential for abuse and the dangers of mixing the medications or taking more than the appropriate dosage.
• EPs should be aware of current guidelines on emergency department prescribing.
For instance, the New York City Department of Health and Mental Hygiene issued guidelines in January 2013 for opioid analgesic prescribing to patients being discharged from the ED. (To view the guidelines, go to: http://on.nyc.gov/YZVuhf.)
While guidelines such as these don’t establish the standard of care, says Ragone, “they are part of the landscape doctors should consider in determining what the standard of care requires. The plaintiff’s expert might agree that they are consistent with the standard of care.”
EPs should consult these guidelines and determine the extent to which they may embody current consensus on the standard of care, advises Ragone. “They should assess the degree to which they can deviate from these voluntary standards without deviating from the standard of care,” she says.
• EPs should document their medical decision-making.
The EP’s best defense is to show that the best medical judgment was made using the information available to them, according to Ragone.
“If you accessed the database, show what you did with the information,” she says. “Did you give a shorter dose that will get the patient through the weekend and permit follow-up with a primary care physician, for example? Or did you prescribe, despite red flags, because the patient was in so much pain?”
Failure to Treat
Information accessed through a prescription monitoring database can help EPs to document their rationale if they decide not to prescribe after performing a medical evaluation fully consistent with the standard of care, says Ragone.
“This can support them in saying, ‘Not only am I not finding evidence of a medical condition to treat after a thorough work-up, but I also have good reason to suspect diversion or abuse,’” she says. “Documenting your rationale is critical if someone comes back and alleges that you failed to treat a condition.”
Failure to treat a patient’s pain is a serious legal risk for EPs, if they do not treat a patient with severe pain because they believe the patient is a drug-seeker, warns Robert Dunne, MD, FACEP, vice chief of emergency medicine at St. John Hospital and Medical Center in Detroit, MI.
“Probably the biggest risk is if you see a patient who describes severe pain and you do not treat them because you think they may be a ‘drug seeker’ — and they turn out to have multiple myeloma or cancer or something similar,” he says.
Dunne cautions that the mere fact that an ED patient has received narcotics previously is not, in itself, a reason to deny treatment. “There are many factors to consider. The patient may have had an acute injury,” he says. “You are always better off taking the patient at face value.”
Dunne says that if he suspects a patient is drug-seeking, he looks at prior medical and prescription records and performs a thorough examination and history.
If a patient has a chronic pain problem, Dunne asks which provider manages it and attempts to contact that person. “Many times, the doctor has been able to tell me that there is, or is not, a problem,” he says. “Often, they will see the patient the next day, so there is no need to provide a prescription in the ED.”
Knox H. Todd, MD, MPH, chair of the Department of Emergency Medicine at MD Anderson Cancer Center in Houston, says that “prescribing without an adequate assessment — and this might eventually mean routine querying of online prescription monitoring programs — would seem to me a red flag.”
To protect themselves legally, Todd says that EPs should document the nature of the patient’s pain thoroughly, should not prescribe long-acting opioids, and should prescribe only quantities sufficient to allow the patient to seek care from a continuity care provider.
“Document yellow or red flags that might indicate a higher or lower risk of prescription opioid abuse, including use of state prescription monitoring programs when available,” he advises.
For more information, contact:
• Robert Dunne, MD, FACEP, Vice Chief, Emergency Medicine, St. John Hospital and Medical Center, Detroit, MI. Phone: (313) 343-7398. E-mail: Robert.Dunne@stjohn.org.
• Jennifer L’Hommedieu Stankus, MD, JD, Team Health, Northwest Emergency Physicians, Tacoma, WA. E-mail: email@example.com.
• Tara Adams Ragone, JD, Research Fellow & Lecturer in Law, Center for Health & Pharmaceutical Law & Policy, Seton Hall University School of Law, Newark, NJ. Phone: (973) 642-8197. E-mail: Tara.Ragone@shu.edu.
• Knox H. Todd, MD, MPH, Chair, Department of Emergency Medicine, MD Anderson Cancer Center, Houston, TX. Phone: (713) 745-9911. E-mail: KHTodd@mdanderson.org.