Physicians face triple threat’ with opioids, and many claims are wrongful death cases
(Editor’s Note: This is a two-part series on legal risks involving pain management. This month, we report on allegations of overprescribing of opioids. Next month, we report on cases alleging undertreatment of pain.)
Malpractice claims involving prescribing of opioids are increasing, according to healthcare attorneys and state medical board directors interviewed by Physician Risk Management.
"Most claims center on ordering too much, or prescribing for known addicts or abusers," reports Robert J. Conroy, JD, MPH, an attorney at Kern Augustine Conroy & Schoppmann in Bridgewater, NJ. "Usually, they are wrongful death cases."
Physicians who routinely prescribe large doses of opioids could face a "triple threat" if a patient is injured or has an unsatisfactory outcome: a malpractice claim, criminal prosecution, and a disciplinary proceeding by the state medical board for substandard or unprofessional practice, says Ben A. Rich, JD, PhD, professor and School of Medicine Alumni Association Endowed Chair of Bioethics at the University of California — Davis Health System’s School of Medicine in Sacramento.
The Medical Licensing Board in Indianapolis is seeing a recent influx in the amount of cases that are brought before the board regarding the inappropriate prescribing of narcotics, reports Kristen Kelley, board director for the Indiana Professional Licensing Agency. "If the physician is found to have violated the medical practice act, the board could issue discipline ranging from revocation, suspension, probation, reprimand, censure, and/or administrative fines," she says.
There is growing evidence that the long-term use of high doses of opioids might not be beneficial, and in some instances actually might be detrimental to patients.1,2These studies could be used to argue that the standard of care was breached if opioids were prescribed, says Conroy, but much of the time, this allegation isn’t necessary for a patient to successfully sue. "Right now there are so many easy’ cases, that plaintiffs’ counsel do not have to work that hard to develop more involved theories," he explains.
Most of the claims handled by Conroy alleged that a physician prescribed opioids to a known addict or a patient with a history of abuse, did not follow-up closely with a patient who is exhibiting drug-seeking behavior such as asking for early refills, or disregarded family concerns or warnings from pharmacists or primary physicians. In one case, a physician neglected to notice in the triage nurse’s history that a 16-year old young woman had admitted to prior treatment for substance abuse two years earlier. She initially presented saying she could not get her regular physician to renew her pain medication, and later saw the physician for various problems including management of pain.
"He prescribed an opioid for the patient’s pain, which started a chain of events that led to the patient ultimately taking a fatal overdose," says Conroy. "The case settled, and the physician was disciplined."
"The front on the war on drugs is shifting from the streets to the exam room," says Conroy. "From a prosecutor’s perspective, they are just moving up the supply stream."
The exponential increase over the last decade in drug overdose deaths involving prescription opioids puts physicians who overprescribe at risk not only for malpractice, but also prosecutions for violation of the Controlled Substances Act for prescribing controlled substances without a legitimate medical purpose, warns Rich.
"This often involves physicians who treat a very large number of patients reporting chronic pain, with little or no attention to the basics of patient care," he says. This includes medical history, physical exam, diagnostic procedures, assessment of the risk of addiction or diversion, and regular follow-up.
To reduce legal risks, some physicians are obtaining formal treatment agreements or "opioid contracts" from patients and using random urine drug screens. "Both of these are outside of the usual parameters of patient care," he says. Reliance on such agreements might create a false sense of patient adherence on the part of the physician, adds Rich.
"Urine drug screens are subject to misinterpretation, false positives and negatives," he says. "These may sometimes be invoked as grounds for dismissing patients from one’s practice precipitously, possibly giving rise to a claim of patient abandonment."
- Trescot BR, Buenaventura R, Adlaka R, et al. Opioid complications and side effects. Pain Physician 2008; 11:S105-20.
- Smith H, Bruckenthal P. Implications of opioid analgesia for medically complicated patients. Drugs Aging 2010; 27(5):417-433.
- Robert J. Conroy, JD, MPH, Kern Augustine Conroy & Schoppmann, Bridgewater, NJ. Phone: (908) 704-8585. Fax: (908) 704-8899. Email: email@example.com.
- Ben A. Rich, JD, PhD, Professor and School of Medicine Alumni Association Endowed Chair of Bioethics, University of California — Davis Health System, Sacramento. Phone: (916) 734-6010. Fax: (916) 734-1531. Email: firstname.lastname@example.org.