Identify and Manage Drug-seeking Patients in the Emergency Department
By N. Beth Dorsey, RN, Esq., Mary C. Malone, Esq., and Jodi B. Simopoulos, Esq., Hancock, Daniel, Johnson & Nagle, PC, Richmond, VA.
The issue of drug-seeking is important for any health care provider, but can be of particular relevance to emergency department (ED) staff. This article analyzes the laws applicable to assessing and treating pain in the ED setting, and considers various strategies suggested in the literature for managing suspected drug-seeking behavior.
'Drug-seeker' Defined
Although there are not currently any evidence-based definitions of drug-seeking behavior in the relevant literature,1-3 the term "drug-seeker" has been routinely used to describe those patients who are perceived to be engaging in behaviors for the purpose of obtaining drugs. It is important to distinguish between those patients seeking drugs for a legitimate purpose, such as under-treated chronic pain, and those patients seeking drugs to abuse them or use them for an illegal purpose. As used herein, the term "drug-seeker" only refers to those seeking drugs for the latter purpose.
Various studies have identified factors that may be considered in determining whether a patient is a drug-seeker. For instance, alteration or forgery of prescriptions, claims of lost or stolen medications, abusive or threatening behavior, seeking care from multiple providers ("doctor shopping"), not following up with primary care appointments, and requesting particular medications have all been suggested as possible identifiers of drug-seekers.1,3,4 Similarly, a study of nearly a thousand nurses revealed that the following behaviors most often led them to believe a patient was a drug-seeker: going to different emergency departments for opioids, telling inconsistent stories of pain or medical history, or asking for a refill due to lost or stolen medication.
Identifying and effectively managing drug-seeking behaviors can be of great importance, and particularly difficult, in the ED setting. Pain is frequently seen in the ED. In fact, it has been named as the number one reason that patients present to the ED, and the pain rating is frequently high, such as eight out of 10.5 The ED physician must not only treat the pain, but also diagnose the cause of it.5 Sometimes pain is a symptom of another problem, but pain can also be the final diagnosis itself.
In the ED, the staff frequently do not know the patient, and therefore, are more susceptible to doctor shopping and other types of deceitful behaviors.3 EDs are also frequently a place of last resort for those seeking drugs. Estimates in 2005 suggested that an ED that sees 75,000 patients per year receives up to 262 monthly visits from drug-seekers.6
Law Applicable to Identification and Management of Drug-seekers
Although several federal and state laws govern the operation of the ED as it relates to providing medication to patients, this article focuses on the applicable federal laws.
EMTALA. To comply with the Emergency Medical Treatment and Active Labor Act (EMTALA), a patient presenting to an ED must be provided with an appropriate medical screening examination to determine whether or not an emergency medical condition (EMC) exists. If such a condition exists, the hospital must provide "any necessary stabilizing treatment," or an appropriate transfer, as set forth in the EMTALA regulations.7 The screening examination to determine if an EMC exists must include a pain assessment. "Emergency medical condition" is defined in EMTALA as "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) ... ."7 Not only must the physician determine if pain exists during the screening, but he or she must also determine if the pain indicates that a critical condition exists.
Despite the requirement to assess pain and determine if a critical condition exists, it is not clear if EMTALA requires the treatment of pain. The phrase "stabilizing treatment" in and of itself does not appear to require providing pain medication to patients. EMTALA defines "stabilize" as "to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely... ." From this definition, EMTALA appears to only require treatment of pain if that pain would result in deterioration of the patient's EMC.
Where the patient requests pain medication, it appears the hospital is required to meet an increased standard of medical screening. The Interpretive Guidelines state:
If an individual presents to an ED and requests pharmaceutical services [medication] for a medical condition, the hospital generally would have an EMTALA obligation. Surveyors are encouraged to ask probing questions of the hospital staff to determine if the hospital in fact had an EMTALA obligation in this situation [e.g., did the individual present to the ED with an EMC and informed staff they had not taken their medication? Was it obvious from the nature of the medication requested that it was likely that the patient had an EMC?]. The circumstances surrounding why the request is being made would confirm if the hospital in fact has an EMTALA obligation. If the individual requires the medication to resolve or provide stabilizing treatment of an EMC, then the hospital has an EMTALA obligation. Hospitals are not required by EMTALA to provide medication to individuals who do not have an EMC simply because the individual is unable to pay or does not wish to purchase the medication from a retail pharmacy or did not plan appropriately to secure prescription refills.7
This interpretive guideline indicates that where a patient is requesting medication the staff should, in addition to normal medical screening procedures, ask additional probing questions to determine whether the medication is required to "resolve or provide stabilizing treatment of an emergency medical condition." The hospital is not required to provide medication where it is not necessary to stabilize the patient.
The Joint Commission. Unlike EMTALA, the Hospital Accreditation Standards of the The Joint Commission (JC) requires the management of pain.8 Specifically, the JC requires, "[t]he hospital [to] assess and manage the patient's pain." The JC standards indicate that the hospital must assess and reassess pain. Further, it must "manage" the pain. This management must be in the form of either treatment for the pain, or a referral for such treatment. Where a patient is suspected of being a drug-seeker after assessment and reassessment, and the hospital does not want to provide medication, a referral to a pain management doctor or a primary care physician would be acceptable under the standards.
Code of Ethics. The Code of Ethics for ED Physicians explains that emergency physicians are in a unique circumstance.9 They must treat patients that often arrive in the emergency department with acute illnesses or injuries requiring immediate care, leaving the physician with limited time to gather data, consult with others, and deliberate about treatment. Furthermore, the Code recognizes that emergency staff typically have little or no prior relationship with their patients, and cannot rely on earned trust or prior knowledge. Finally, the Code indicates that emergency physicians have been given the social role in the United States of being the "providers of last resort" for many patients with little or no other access to health care.9
According to the Code, the emergency physicians' primary professional responsibility is "patient welfare." Emergency physicians must "respond promptly ... in order to prevent or minimize pain and suffering." This requirement indicates that an emergency physician is ethically bound to try and minimize or prevent a patient's pain. Nonetheless, the Code recognizes that the emergency physician does not only owe this duty to his or her patients, but also owes a duty to society. Indeed, the Code states that the duty to society sometimes, "transcend[s] duties to individual patients." This statement could be deemed to encompass the duty to prevent drug addiction, which can be injurious to society. Therefore, while an emergency physician has the ethical duty to relieve or prevent pain, where he or she suspects a patient to be an illegitimate drug-seeker, the duty to society may be greater than the duty to provide pain mediation, and the physician may, in some circumstances, withhold pain medication.
Case Law. Case law on the issue of drug-seekers is limited. What limited case law exists demonstrates a tension between the need to treat pain and the concern over treating patients without a legitimate need for the medications.
In two recent cases in California, families of patients sued for medical malpractice where the physicians allegedly undertreated pain. Both cases involved end of life care, not care in the ED. In Bergman v. Chin, A California jury returned a verdict against Wing Chin, MD, and awarded $1.5 million in damages.10 Dr. Chin was an internal medicine specialist at Eden Medical Center. William Bergman was suffering from end-stage lung cancer and complaining of pain ranging from 7 on a scale of 10 to 10 on a scale of 10. Dr. Chin was alleged to have failed to prescribe pain medication strong enough to provide relief.10
Similarly, in the case of Tomlinson v. Bayberry Care Ctr., the family of Lester Tomlinson filed suit against two physicians alleged to have undertreated the pain he suffered due to mesothelioma.11 The lawsuit was settled for an undisclosed sum. These cases demonstrate the possibility of successful plaintiffs' suits where a health care provider is alleged to have withheld pain management and thus violated the standard of care.
At the other end of the spectrum, the physician faces the possibility of federal charges of drug trafficking where he or she prescribes medication in violation of federal law.12 These cases are exceedingly rare.13 In order to find a physician guilty of violating drug trafficking laws, the government must prove:
1.) that the defendant distributed or dispensed a controlled substance;
2.) that the defendant acted knowingly and intentionally; and
3.) that the defendant's actions were not for legitimate medical purposes in the usual course of his professional medical practice or were beyond the bounds of medical practice.13
Strategies to Identify and Manage Drug-Seekers
Several strategies for identifying and managing drug-seekers have been identified in the literature.
Prescription Abuse Checklists. One strategy suggested in the literature is utilization of "prescription abuse checklists."14 The checklists are of two different types. The first is to be filled out by the practitioner, based upon obtaining the patient's history. It involves items such as "excessive focus on opiate issues during clinic visits," "multiple phone calls or visits about opiate prescriptions," and "a pattern of prescription problems." Where the practitioner finds that the patient meets three out of five of the criteria, the patient is classified as an opioid abuser.14 This type of checklist may not be effective in the ED, where the health care providers may not have a working knowledge of the patient's history, and it does not distinguish between legitimate and illegitimate drug-seeking.
The second type of checklist employs a self-report form to be completed by the patient. The checklists are more successful when the questions are less "objectionable" to answer. For instance, a less objectionable question might be: "is there a history of alcohol or substance abuse in your family?" or "have you ever had any legal problems or been charged with driving while intoxicated?"14
One drawback with any type of checklist is that they are heavily dependent on patient self reporting. This may not be reliable, particularly in the ED setting, where there is no established trust or prior knowledge. Another drawback is that physicians in the ED do not have the time to utilize these checklists.
Alternatives to Opioids. Prescription strength opioids are highly sought out as drugs of abuse. In fact, research has showed that the street value of prescription narcotics is greater than both marijuana and heroin.6 Therefore, a third strategy recommended in the literature is to prescribe alternatives to opioids,6,14,15 or in some instances, alternatives to short-acting opioids. Where a patient is believed to be addicted to opioids, these medications may be avoided altogether.6,14,16 Alternatives may include acetaminophen, salsalate, or non-steroidal anti-inflammatory drugs (NSAIDs).
One study suggests that, where appropriate, physicians may use a method of "compassionate refusal" by expressing compassion for the patient's condition, but refusing to treat with opioids.14 The physician may "turn the tables" on the patient by discussing issues of dependence.14
Referral to Social Services or Case Management. Some literature also recommends referring patients to social services or case management.14-16 This may be particularly helpful when a drug-seeker appears to be addicted to medications, but is also suffering from chronic pain. In such instances, the patient may need to be managed in an inpatient facility where he or she receives pain medication, as well as treatment for addiction in a controlled setting.14,15 The social worker or case manager can direct the patient to these services.
Similarly, the patient can be referred to a pain specialist (either through social services, or directly by the physician). A pain specialist can prescribe narcotics under a tightly controlled atmosphere and also educate the patient on pain management techniques that do not involve medications, such as acupuncture. Alternatively, the social worker or case manager can work with the patient to develop certain conditions for receiving narcotics.15
Where a health care provider chooses to refer the patient to social services or case management, a full pain assessment and screening must still be done. The health care provider may need to prescribe pain medication (opioid or non-opioid) for the time period until the patient is able to enter the inpatient facility or see the pain specialist.
Red Dot Alert System. A final strategy recommendation is a "red dot" alert system. In this system, a red dot would be placed on the charts of all patients seen more than three times in the preceding six months.16 If a health care provider is treating a patient and sees a red dot on the chart, he or she would know to review all of the past records for that patient, even if the current complaint would not otherwise precipitate a review of past medical records.16
This system avoids HIPAA and EMTALA concerns because there is no separate file kept on the patient. All information is kept in the patient's normal medical records. The red dot system also has the benefit of avoiding stigmatizing suspected drug seekers. Instead, this system simply instructs the health care provider to take a more complete look at the patient's history. A full and complete assessment and screening of the patient would still take place and, in fact, may be more detailed than it would have been. In order to avoid EMTALA problems, the red dot policy should emphasize that it is a patient safety mechanism, and the EMTALA screening examination is not altered due to the presence of a red dot.
Under this system, the health care provider would also know, by virtue of the red dot, the importance of complete documentation of medication with this patient, including the patient's complaints and presentation, the prescription given, and the reasons therefore. The providers should record only factual statements of the events and the health care provider's actions. This will protect against patients taking steps such as suing for defamation. In one such case, a patient filed a lawsuit for defamation arising out of entries in her medical records where physicians indicated suspicions of "drug-seeking." Her case was thrown out prior to trial because the statements in her record were factual and "truth is an absolute defense" to a claim for defamation.17
The physician acting under the red dot system is able to prescribe any medication believed necessary, including opioids. At the same time, this system offers a more "unified policy for managing" the patient's condition, particularly where there are no objective signs of injury or illness to be routinely treated with opioids.16 The red dot system can help distinguish true drug-seekers from patients suffering from chronic pain.
Conclusion
Drug-seeking behavior is an important issue for any health care provider, but it is particularly critical for emergency physicians to be able to identify and manage drug-seeking behavior. EMTALA, Joint Commission Standards, the Code of Ethics for ED Physicians, and case law, require that emergency health care providers conduct thorough pain assessments and manage pain, by either treatment, or referral for treatment.
Several strategies have been suggested for management of drug-seekers, including utilizing checklists, avoiding use of opioids, referring the suspected drug-seekers to social services or case management, and utilizing a red dot alert system. Regardless of the system used, it is most important that the health care provider conduct a thorough and individualized assessment of the patient and fully document the treatment decisions.
References
1. McNabb C, Foot C, Ting J, et al. Diagnosing drug-seeking behaviour in an adult emergency department. Emerg Med Australas 2006;18: 138-142.
2. McCaffery M, Grimm MA, Pasero C, et al. On the meaning of "drug seeking." Pain Manag Nurs 2005;4:122-136.
3. Longo LP, Parran T Jr., Johnson B, et al. Addiction: Part II. Identification and management of the drug seeking patient. Am Fam Physician 2000;61:2401-2408.
4. Protocols for Suspected Drug Seeking Behaviors in the Emergency Department; December 1999; Health Care Advisory Board.
5. Johnson SH. The social, professional, and legal framework for the problem of pain management in emergency medicine. J Law Med Ethics 2005;33:741-756.
6. Hansen G. The drug-seeking patient in the emergency room. Emerg Med Clin North Am 2005;23: 349-365.
7. 42 CFR 489.24(a)-(f).
8. 2009 Hospital Accreditation Standards; Joint Commission; Standards PC.01.02.07.
9. American College of Emergency Physicians, Code of Ethics for Emergency Physicians. American College of Emergency Physicians Web Site. Available at http://www.acep.org.
10. Bergman v. Chin, No. H205732-1 (Alameda County Ct., June 13, 2001).
11. Tomlinson v. Bayberry Care Ctr., No. C02-00120 (Cal. Super Ct. Contra Costa County, 2003).
12. 21 U.S.C. § 841.
13. United States of America v. Bek, 493 F.3d 790 (7th Cir. 2007); United States v. McIver, 470 F.3d 550 (4th Cir. 2006); United States of America v. Hurwitz, 459 F.3d 463 (4th Cir. 2006).
14. Wilsey B, Fishman SM, Ogden C. Prescription opioid abuse in the emergency department. J Law Med Ethics 2005;33:770-782.
15. Wilsey B, Fishman SM, Tsodikov A, et al. Psychological comorbidities predicting prescription opioid abuse among patients in chronic pain presenting to the emergency department. Pain Med 2008;8:1107-1117.
16. Hawkins S, Smeeks F, Hamel J. Emergency management of chronic pain and drug-seeking behavior: an alternate perspective. J Emerg Med 2008; 34:125-129.
17. Outlaw v. Werner, 2009 Ohio 2362 (2009).
The issue of drug-seeking is important for any health care provider, but can be of particular relevance to emergency department (ED) staff. This article analyzes the laws applicable to assessing and treating pain in the ED setting, and considers various strategies suggested in the literature for managing suspected drug-seeking behavior.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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