When is Prescribing Opioids Medical Negligence?

By Tracy L. Liberatore Esq, PA

The opioid crisis has been a hot topic in the news lately. Physicians are prescribing medications without ever seeing or examining patients. Patients are becoming addicted or worse, overdosing and dying. Yet other patients have chronic pain and are on pain medications for a long period of time. How can you tell if this is medical malpractice or acceptable treatment and care for their patients?

Prescribing any medication for a patient without having met or seen them goes against all standards of care. Even with the use of telemedicine, another hot topic under scrutiny these days, the provider still meets the patient. The patient comes to a clinic, usually in a rural area, and the provider is at another site but available remotely. Therefore the patient is still evaluated in a clinic and meets the provider handling their care.

What Must a Provider Do to be in Compliance With the DEA?

Prescribing pain medication that has addictive properties should only be done short term and never without first seeing and examining the patient. The Drug Enforcement Administration (DEA) has strict prescribing regulations regarding controlled substances. First, they require the provider apply for and be granted a DEA number. Thereafter the prescriber must maintain a medical record establishing that the patient was examined, the pain they were suffering, and substantiate the need for prescribing the medication.

What about those with chronic pain?

If the pain cannot be abated with the use of alternative, non-addicting pain medications, the patient should be referred to a pain management specialist and/or surgeon as indicated. They may require alternative treatment such as nerve block injections or even surgery to treat their chronic pain. This would alleviate the continued need for narcotic pain medications.

Medical History May Contraindicate the Prescribing of Narcotics

A thorough medical history needs to be taken at the initial visit. This history must include any history of addiction. If the patient has a history of addiction, especially addiction to heroin or any of its derivatives, great care should be taken when prescribing any controlled substance as the likelihood of abuse is increased.

This is not to say that narcotics cannot be prescribed for a short period of time, however, there should be safeguards in place to ensure the patient is not abusing the medication. These may include more frequent visits to the office than normally required, urine drug screens to ensure they are taking the medication as prescribed, signing a consent agreement with the physician that they will take the medication as prescribed and not sell or abuse the medication.

Further safeguards would require the patient to consistently go to the same pharmacy to ensure any refills are not given early. Pharmacy and doctor shopping is very common among the addicted patient but this seems to be improving with the use of computers to track patients, prescribers, and prescriptions.

“Physicians must be aware that once a patient has been diagnosed an addict, it is not legal to prescribe opioids for the purpose of maintaining or detoxifying that patient; treatment of pain is still permissible, however. It is clear that new standards of care must be developed to reduce the liability of legitimate prescribers from sanctions in either criminal or civil settings. With new standards of care, prescriptions for opioids written in good faith for the treatment of pain should survive legal scrutiny.”[1]

How can I tell if there is medical negligence?

Medical negligence was defined in my prior post How to Make the Most of Your Medical Legal Consultant. Briefly, the standard for providers is measured by comparing the providers conduct with that of a reasonably competent and skilled health care professional, with a similar background, in the same medical community, and under the same or similar circumstances. This usually requires expert testimony. Proving a patient was over-prescribed pain medication the expert must consider the patient’s current complaints, medical history, diagnosis, findings on physical exam (objective findings), physician experience, and what current medical textbooks and literature say about the treatment of the condition.

Recent Legislation

Many states are enacting bills to regulate and reign in loose prescribing habits. Pennsylvania for example now limits the prescribing of opioid drugs in an emergency department or urgent care to no more than sufficient for seven days. The bill does provide an exception for patients whose diagnosis is associated with cancer or for palliative care however this requires rigorous documentation that a non-opioid alternative was not appropriate to treat the medical condition. Regardless of this exception, refills are not permitted. Another part of the bill requires providers to check with the Prescription Drug Monitoring Program (PDMP) to see if a patient may be under treatment with opioids by another health care provider.[2]

Providers who violate the provisions of this bill are subject to licensure sanctions, whereas practitioners who comply are presumed to be acting in good faith and will have immunity from civil liability.

Conclusion

Drug abuse does not only come in the form of street drugs and can be the result of negligent prescribing practices by a provider. Providers are required to know the law and prescribe within the guidelines, and document their compliance in the medical record.

Providers who fail to adhere to these laws may be negligent in their prescribing practices.

If you have a case where narcotic drugs or any other controlled substance were prescribed and your client suffered addiction to the drugs, or worse overdose and death, you may need assistance sorting through the medical record to see if the provider was compliant with their state laws and regulations. You need someone who can sort through the patients’ chart with an eye for both the medical and legal aspects of your case. A medical professional can review the chart for lab work to indicate the appropriate tests were ordered and complied with or any other documentation to indicate the patient was closely followed, monitored, and referred to the appropriate specialist in a timely manner.

If you are having issues dealing with medical records and need assistance organizing and deciphering what is going on, Med Legal Pro is your solution!

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