Physician Legal Review & Commentary

Prescriptions of several painkillers leads to overdose, death, and a $1.05 million settlement

By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY

Christopher U. Warren, Esq.
Associate
Kaufman Borgeest & Ryan
Parsippany, NJ

Alvin Safran
Director of Risk and Claims Management
The New York Hospital Medical Center of Queens
Flushing, NY

News: A woman presented to her ear, nose, and throat doctor seeking treatment for chronic sinusitis. For years, this defendant doctor had prescribed her painkillers such as oxycodone and methadone for headaches and facial pain. He continued to do so, despite having knowledge that she was receiving these pain medications from other providers. The plaintiff subsequently overdosed on methadone, and died; she was 40 years old. The woman's family brought a civil lawsuit against the ear, nose, and throat doctor, among others. Before trial, the plaintiff settled her claims against this defendant for $1.05 million; her claims against the other defendants settled earlier for $528,000.

Background:A woman presented to her ear, nose, and throat doctor to receive treatment for chronic sinusitis. For years, the defendant doctor treated her, and he had prescribed her oxycodone and methadone for headaches and facial pain.

In 2005, the defendant doctor received a letter from the woman's insurer advising him that she was receiving narcotic pain medications from multiple medical providers. Despite this notice, the defendant doctor testified in a deposition that he continued to prescribe the woman narcotic pain medications.

On Sept. 20, 2006, the woman died at age 40. An autopsy revealed that the cause of death was a methadone overdose. The woman's husband and her five children brought a civil lawsuit against the ear, nose, and throat doctor, among others, and claimed that they caused the woman's death by prescribing her narcotic pain medications despite knowing that she was abusing them.

On Dec. 6, 2011, the trial judge conducted a settlement conference. It resulted in a $1.05 million settlement between the plaintiffs and the ear, nose, and throat doctor. The other defendants resolved their claims with the plaintiffs earlier in the litigation for $528,000.

What this means to you: As the lyrics to the Kenny Rogers classic, "The Gambler," state, "You gotta know when to hold 'em; know when to fold 'em." In this case we find the physician being sued by a non-compliant patient. Complicating the matter is the fact that there appears to be culpable conduct on the part of the physician as well. This case gives us a great opportunity to discuss strategies when you know fairly well that your case is indefensible.

Before we delve into some defense and mitigation strategy, let's go over some risk management strategies in dealing with the non-compliant patient.

In the case at hand, the non-compliance resulted in the misuse and overdosing of pain medication. In most instances, the problem is the exact opposite. Patients are non-complaint in taking their medications according to schedule. The former U.S. Surgeon General C. Everett Koop once remarked, "Drugs don't work in patients who don't take them." With the growth of electronic tracking, more medical insurance companies are taking it upon themselves to proactively notify physicians that their patients are failing to comply with their treatment plans. Often the failure to comply pertains to patients who are not taking their medications or are under-medicating themselves. In this case, the physician was given a "heads up" by the insurance company that his patient was obtaining methadone at the same time from more than one source.

Physicians managing patients with long-term or chronic conditions requiring pain management should keep diligent documentation for any episodes of non-compliance. Careful monitoring of appropriate opiate and/or toxicology drug levels should be undertaken and documented as well. If the physician learns that the patient is receiving simultaneous medications from more than one source, he or she should immediately stop prescribing the medication and cancel any current order(s).

Another technique in dealing with patients who require long-term pain management is issuing of a pain treatment agreement, also called a pain management contract. In this agreement, the physician spells out the expected behavior of the patient with respect to the pain medication as well as the patient's rights. Typically such contracts include the obligations of the patient to keep the pain medication in a safe place, not share prescriptions with anyone else, keep scheduled appointments, use only one pharmacy, accept prescriptions from only one physician, etc. Whether such contracts are legally binding is certainly debatable, but even if not legally binding, it is hoped that such contracts will deter patients from abusing pain medication.

Finally, and probably among the most difficult of decisions, the physician must decide whether to terminate the physician patient relationship. If the physician works in a hospital, he or she should contact the legal or risk management department for guidance. A physician who doesn't work in a hospital, or for some other reason prefers not to discuss the matter with risk management, might turn for advice to the company that insures him or her for professional liability. Most insurance companies have sample forms to guide the physician through the termination of physician patient relationship process. Before the physician embarks on the termination of the relationship, the patient should be given an opportunity to express any complaints or explanation as to why the patient is finding it difficult to comply with the physician's plan of care. The American Medical Association has guidelines as well at the following web address: http://1.usa.gov/S0mtXm. Although the guidelines might differ slightly, most of them will include a warning that unless the patient's non-compliant behavior changes, the physician will not be able to continue treating the patient. The guidelines will advise the physician to document non-compliance issues. The physician should document that he has informed the patient that failure to comply will result in termination of the relationship. The patient must be informed that you will continue to treat him or her for a certain amount of time, usually 30 days. The patient must be presented with a list of alternate options to receive the necessary treatment. The letter of termination should be sent to the patient's home address by certified mail, with return receipt requested. The physician must be careful to follow these steps in order to avoid any subsequent allegations of abandonment.

The issue of when to terminate the relationship with a non-compliant patient is likely to grow as a risk management issue as "pay for performance" initiatives are undertaken. Physicians might find themselves in the unfortunate position of having to decide whether to maintain a relationship with a non-compliant patient or suffer the economic penalties for a lower performance rating attributable to the non-compliant patient.

In a case in which a successful defense seems highly doubtful, there are still some techniques that can be used. One such technique that is used rarely but could be helpful is to consider conceding liability. The benefit of using such a technique is largely limited to cases in which you want the jury to decide only on a monetary amount of an award and not on liability. You don't wish to anger or unnecessarily inflame the jury by having the plaintiff bringing in medical experts to go through a laundry list of embarrassing departures. The obvious downside is that it guarantees that the plaintiff has won the case. To use this strategy, you have to be reasonably certain that the liability case against the defense is overwhelming.

Another strategy might be to take the case to mediation. A mediator that is acceptable to both sides is chosen. The mediator will try to bridge the gap between the two sides. This strategy will be most successful only if both sides are serious about settling the case and both sides are willing to compromise. There is virtually no point in going to mediation if the defense is taking a "no-pay" position on the case, particularly if there is only one defendant.

In some states, judges are taking a proactive approach and attempting to reach early resolutions in cases when it seems apparent that it is in both parties' interest to settle the case quickly without taking the case to trial. The rationale for this approach is that most cases settle out of court anyway. Why go through the additional time and expense of obtaining medical experts, incurring large legal fees, and making people lose time from work for depositions, if the case is going to settle out of court anyhow? In the above case, it appears that the judge helped the parties reach a settlement.

In the post-Michael Jackson world, we know that this type of case can be quite problematic and result in unpleasant consequences. Perhaps one of the strongest reasons for making every effort to settle this type of case as quickly and quietly as possible is to avoid the likely adverse publicity that this type of case is capable of generating. Knowing when to "fold 'em" might be a small price to pay in avoiding a shark-feeding frenzy by the media, charges of professional misconduct, or even criminal charges.

Reference

Superior Court of New Jersey, Morris Vicinage, Docket No.: MRS-L-2748-08.