EXECUTIVE SUMMARY
The ED is a common setting for malpractice claims involving opioid-related events, according to the authors of a recent analysis. Some legally protective practices:
- Check the state prescription drug monitoring program.
- Screen patients carefully to see if opioids are appropriate.
- Consider the adverse effects of abruptly stopping opioids.
The ED was the second most common location where opioid-related events occurred, according to the authors of a recent analysis of malpractice claims.1
The authors studied five years of closed claims, which included 165 patient events involving opioids. Half of all cases involved a high-severity patient injury, including death. The top opioids involved were fentanyl, hydromorphone, oxycodone and acetaminophen, and morphine. Many claims (41%) cited errors in screening and prescribing. More than half of patients in this group had either psychiatric or substance abuse history.
The following factors repeatedly came up in malpractice claims involving opioids in the ED setting, says Ann Lambrecht, RN, BSN, JD, a co-author of the report:
• No one checked the state’s prescription drug monitoring program (PDMP). Except for Missouri, all states now have some form of PDMP in place.2 These databases alert EPs if someone already has received multiple prescriptions for opioids. In one such case, a married couple came frequently to an ED, always complaining of pain — and always leaving with narcotics prescriptions. When one EP became suspicious, a quick check of the PDMP revealed that both “patients” were receiving opioids from multiple providers.
“This is problematic for the prescribing physician, because a simple check of the PDMP could have avoided the multiple prescribing,” says Lambrecht, a senior risk specialist at Coverys, a Boston-based provider of medical professional liability insurance.
Neither the husband nor the wife had any type of bad outcome. “But they were most likely selling the narcotics to individuals who may have,” Lambrecht adds.
• The patient was not screened carefully to determine if opioids really were appropriate. Not all patients can speak on their own behalf, and those who can are not always reliable historians. Thus, EPs find themselves treating people who are taking opioids with no idea how much or when the drug was last taken. This is a dangerous situation.
“Without this information, administering certain medications becomes risky and can be fatal,” Lambrecht warns.
• The EP prescribed opioids for a diagnosis for which opioids are contraindicated. “The medical evidence advises that opioids should not be prescribed for certain conditions, like fibromyalgia and uncomplicated neck and back pain,” Lambrecht observes. That does not stop patients with these conditions to come to EDs asking for opioids because their prescription has run out. This puts the EP in a high-risk situation. “While opioids should not be prescribed for these conditions, abruptly stopping opioids is not advised,” Lambrecht explains. “Doing so could cause severe withdrawal symptoms.”
• There is no documentation on why the EP thought opioids were appropriate. A 52-year-old woman was evaluated in an ED for unrelenting back pain. Despite the patient’s history of narcotic addiction, the EP prescribed a fentanyl patch. Soon after, the patient was found unresponsive at home and was unable to be resuscitated.
“If the ED physician felt that narcotics were still appropriate, careful documentation would be critical in the defense of this case,” Lambrecht offers.
There are two pieces of information that are particularly important to chart: the reason for prescribing and an indication that the patient was educated on the dangers of overdosing.
• No one performed a urine or blood screen before administering opioids. “This can result in adverse drug reactions,” Lambrecht cautions.
• No one contacted the patient’s primary care provider. “This could give rise to a number of risks,” Lambrecht notes. “Chief among them may be the patient’s prior adverse reactions to opioids.”
• ED providers failed to appropriately monitor patients on IV opioids. “This can lead to fatal outcomes,” says Lambrecht. “But it is challenging to do in a busy ED.”
Recent prosecutions of physicians for inappropriate opioid prescribing have some EPs worrying about criminal charges if they prescribe opioids to anyone. This is unlikely, says Tony Yang, ScD, LLM, MPH, lead author of a recent paper on this subject.3
The central issue is whether the EP followed relevant regulations and guidelines for opioid prescribing. “The physicians with high legal risks are those with large doses, large numbers of prescriptions, frequent prescriptions, and an inability to document necessity,” says Yang, professor and the executive director of the Center for Health Policy and Media Engagement at George Washington University School of Nursing.
Malpractice lawsuits against EPs for inappropriate opioid prescribing are uncommon, according to Yang. For criminal cases, the bar is even higher. “The physician has to engage in prescribing outside the usual and customary course of medical practice, for nonlegitimate reasons,” Yang explains.
One former EP opened multiple clinics described as “pill mills” in the criminal complaints against him.4 “A jury in federal court ruled him responsible for the overdose deaths of four of his patients,” Yang notes. In 2012, he was sentenced to four consecutive life terms in prison.
Any EP who prescribes huge amounts of opioids, at higher-than-average doses, with multiple overdose deaths associated with those prescriptions, likely will be the target of an investigation. “Unless you have that kind of situation, you’re not likely to be a target of criminal prosecution,” Yang says.
Yet, EPs’ opioid prescribing can come up during malpractice litigation, even if it is not the main focus of the lawsuit. “If plaintiffs can show that a reasonable EP would not prescribe opioids in the situation, or not as many and/or frequently, they will have a strong malpractice case,” Yang suggests.
REFERENCES
- Burke A, Gilmore S, Lambrecht A, et al. Red signal report — opioids. Coverys, Nov. 12, 2019. Available at: http://bit.ly/34puIIR. Accessed Nov. 26, 2019.
- Haffajee RL, Mello MM, Zhang F, et al. Four states with robust prescription drug monitoring programs reduced opioid dosages. Health Aff (Millwood) 2018;37:964-974.
- Yang YT, Larochelle MR, Haffajee RL. Managing increasing liability risks related to opioid prescribing. Am J Med 2017;130:249-250.
- United States v. Volkman, 736 F.3d 1013 (6th U.S. Circuit Court of Appeals, Nov. 21, 2013). Available at: http://bit.ly/2KVEDOI. Accessed Nov. 26, 2019.
Learn more about the factors that repeatedly arise in malpractice claims involving opioids in the ED.
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