Drug overdose deaths are a leading cause of injury death in the United States. The U.S. Department of Health & Human Services estimates that 12.5 million people misused prescription opioids in 2015. A common scenario involves the patient who is prescribed a proper dose of opioids for treatment of pain following an injury. The potential for medical malpractice exposure may develop if the patient becomes dependent on opioids and begins to engage in drug-seeking behavior.
Used properly, opioid medication can provide much needed pain relief to the injured patient. However, these medications also act as central nervous system (CNS) depressants, which can cause respiratory and circulatory insufficiency, and in some cases lead to cardiovascular collapse and death. To complicate matters, overdoses often occur through combined use of opioid-containing pain or cough medicines with benzodiazepines or other CNS depressants. Due to synergistic effects, overdose can occur, even where none of the drugs would have been of toxic levels on their own. There is also the potential for intentional overdose.
Matthew M. Frank
Whether an intentional or accidental overdose, the patient’s family may commence a lawsuit against the treating physician, claiming a departure from accepted practice in failing to properly monitor the patient’s opioid use. Under the traditional paper prescription system, in order to establish a proper defense, the treating physician must have properly documented: the physician’s prescriptions were indicated for the patient’s pain level and proper in dosage and frequency, the physician asked the patient what other CNS depressants the patient was taking and from what other providers, and that there were no contraindications with taking the various medications at the same time. The physician must rely on the recollection and honesty of the patient. Proper documentation is particularly important in the case of fatal overdose, where evidentiary rules may prevent the doctor from testifying at trial as to communications he had with the deceased patient.
Effective March 27, 2016, all practitioners in New York state were mandated to electronically prescribe both controlled and noncontrolled substances, essentially eliminating the standard paper prescription form, with limited exceptions1. Other states, such as Connecticut, are establishing similar regulations. These prescriptions are recorded in the Prescription Monitoring Program (PMP) Registry. Prescribers are required to consult the PMP registry prior to prescribing controlled substances.
Electronic controlled substance registries may minimize fraudulent prescriptions and allow the treating physician to review a complete list of prior and current prescriptions. With this list, the physician is able to judge the appropriate dosage, frequency and type of opioid to be prescribed (or withheld as the case may be, especially when the registry shows that the patient is doctor shopping for prescriptions), as well as whether the patient is taking another CNS depressant which may contraindicate the contemplated prescription.
The new electronic prescription legislation, in conjunction with the respective electronic registries, are required tools for the practitioner to become familiar with in order to prevent opioid diversion and abuse, as well as protect against claims of medical malpractice alleging a failure to properly monitor opioid use. These systems do not exclusively rely on patient history to obtain complete information on prior and current drug prescriptions. They also limit misuse of paper prescription forms. However, they are not a substitute for eliciting a proper drug history from the patient, educating the patient on the dangers of opioids and the combined effects of opioids with other CNS depressants, and keeping proper documentation of all prescriptions and communications with the patient regarding the prescribing of such medications.
John J. Barbera, Partner, and Matthew M. Frank, Associate, are attorneys at Martin Clearwater & Bell LLP, where they focus their practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.
1 NYCRR Part 80.