High-dose opiates for pain are not apt to prompt criminal prosecution
Clinicians who fear risk should be urged to provide needed relief
Many doctors, nurses, and risk managers mistakenly believe the risk of criminal prosecution is great when high-dose opiates are provided for pain relief in terminally ill patients, possibly leading to the unnecessary suffering of thousands of patients in U.S. hospitals every year. New research indicates the risk of prosecution actually is remarkably low, suggesting that risk managers should educate clinicians and urge them to provide pain relief as needed.
For years, doctors and nurses have feared they could be prosecuted for murder and face other disciplinary action if their administration of high-dose opiates for pain relief accidentally hastened death. Even if the drugs do not hasten death, they believe their intent in administering such drugs may be questioned. New research, however, shows that those fears may be based on anecdotal evidence and sensational stories in the media more than on actual legal history, says Ann Alpers, JD, a professor of medicine at the University of California-San Francisco Medical School. She focuses on legal aspects of medical care.
"The risk of prosecution is incredibly low," Alpers tells Healthcare Risk Management. "There is some prosecution, but it occurs in awfully unusual situations and not at all in the typical care you see in a physician-patient relationship."
That may come as a surprise to some risk managers and clinicians. If so, it is important for risk managers to educate the clinicians about the actual risk of prosecution so they are free to make objective decisions about how to relieve the extreme pain some patients face in their final days. Even if doctors do not refuse to provide adequate pain relief out of fear of prosecution, it is likely that the fear plays some part in medical decisions. If that fear has no basis in fact, it could lead to unnecessary suffering, Alpers says.
"If that concern is interfering with physicians’ titrating narcotics to the level that the patient needs to get relief from pain, then that obviously is a big problem," Alpers says. "My own view is that a physician should never hesitate to treat pain as aggressively as necessary."
Concern by doctors expected
It is not surprising that doctors and other clinicians fear legal liability when administering high-dose opiates, says Grena Porto, RN, ARM, DFASHRM, director of clinical risk management and loss prevention services at VHA Inc. in Ber wyn, PA, and president of the American Society for Healthcare Risk Manage ment. But Porto says she doesn’t know how common those concerns are.
"It used to be that doctors were afraid to prescribe high doses because they were afraid patients would become addicted, but that’s not so much a fear any more," she says. "I’m sure some doctors wonder about the legal consequences, if only because they’ve heard about a few stories in the news media."
Though he agrees the risk of criminal prosecution is low, another researcher who has studied the issue tells HRM there has been some past justification for doctors’ fears of drawing the wrath of government regulators by prescribing high-dose opiates. Timothy Jost, JD, professor of law and health services management at The Ohio State University in Columbus, says things have changed for the better in recent years.
"There has been a real widespread belief, supported by at least a lot of anecdotal evidence, that doctors prescribing high and appropriate doses for people with chronic and terminal pain would face enforcement action from state medical boards or the Drug Enforcement Administration," he says. "The exposure of doctors is a whole lot less than what it used to be because prosecutors, medical boards, and legislators are now aware that pain relief is a serious problem. How much that change has gotten back to the doctors is another question."
Few prosecuted without unusual factors
Alpers studied the issue recently by conducting an extensive search for all criminal prosecutions related to the care of terminally ill patients, including the withdrawal of life support and other issues besides opiate administration.1 She restricted the search to all cases after 1990, when Cruzan v. Director, Missouri Department of Health established that a patient has the right to refuse unwanted medical care.
She says she expected to find few cases and no convictions related to opiate administration, but she was surprised to find several physicians convicted of criminal behavior related to drug administration in terminally ill patients. She identified only 13 cases since 1990 in which physicians were investigated but not indicted. Another three were tried for murder, and two were indicted on other charges. Two were convicted of murder, and the others were acquitted; one of the two convictions was overturned on appeal.
Further analysis, however, revealed that the cases resulting in prosecution, and especially those resulting in conviction, were outlier cases that were substantially different from the typical situation in which a physician merely tries to relieve a patient’s pain when it is clear death is on its way.
One key factor influencing prosecution is the administration of anything other than narcotics or benzodiazapines that lead to death. Some of the prosecuted cases involved potassium chloride, making it much more difficult for the physician to argue that the drug was administered for legitimate care and not specifically to hasten death. That fact touches on a key point in Alpers’ research. The intention of the clinician is key to the likelihood of prosecution or conviction. If it is clear the high-dose opiates were administered for pain relief, prosecution is unlikely even if the drugs did hasten death.
"The potassium chloride in these cases did nothing but kill them," she says. "Some physicians tried to argue otherwise, but it didn’t really make sense. If the patient is dying, why are you monkeying around with his potassium level?"
Differences raise suspicions
The research also indicated that those prosecuted for giving high-dose opiates were more likely to be nonwhite, not originally from the community in which they practiced, and possessing a lifestyle or approach to medicine that others considered out of the mainstream.
Locale was another factor influencing prosecution of suspicious cases. Most of the prosecuted cases occurred in relatively small communities, not big cities. The reason is unclear, but Alpers theorizes that the local prosecutor’s workload may have some influence. A small-town prosecutor simply may have more time to pursue a suspicious death at the hospital, whereas big-city prosecutors may be too busy.
On the whole, though, she says, "nobody is snooping around hospitals trying to find these cases. Physicians find it very alarming to think of prosecutors skulking around the hospital looking for doctors who are killing their patients, but the fact is there just aren’t many prosecutors out there trying to make their political careers on a case like that."
Jost’s research supports that point. He says, "Prosecutors told me that the last thing they have time and resources for was going after doctors trying to relieve pain."
Nurses most likely source of drug tips
If prosecutors aren’t eagerly searching for suspicious drug administration, how do they find out about the cases? In the relatively few cases in which prosecutors start investigating and prosecute, the suspicions usually are reported by nurses or other nonphysicians involved in the patient’s care, Alpers says.
In some cases, a poor relationship between the physician and staff may prompt a nurse to call the prosecutor with misguided suspicions instead of simply asking for more information about why and how the drug was administered. The proper dosing of opiates for a terminally ill patient is tricky, and few nurses fully understand it.
"There often is just a different knowledge level and understanding between the nurse and physician about the proper dose," Alpers explains. "In one case, the nurse thought you would only give that dose if you wanted to kill the patient, but the doctor knew that it was an appropriate dose for the patient’s pain. A cancer patient with a long history of narcotics may need what looks like a walloping dose to control pain, but it’s not dangerous to the respiratory drive at all."
Though such misunderstandings are most common between physicians and nurses, Alpers notes that physicians often will disagree about the same issues. Even among physicians, the experience in treating the pain of terminally ill patients can vary greatly.
Even if the local prosecutor isn’t much of a concern, there may be other problems to face when doctors prescribe high-dose opiates. In some cases, a pattern of such prescriptions will draw the attention of state medical boards, other regulatory bodies, and the federal Drug Enforcement Administration. Jost says those fears may be more realistic, though the risk still is probably not as great as some doctors think. (See story at right for more on those risks.)
Also, Alpers did find some problems with confidentiality when these cases became criminal matters. Quality assessment and morbidity and mortality meetings in hospitals typically are considered confidential and are protected from the discovery process in civil litigation, grant -ing clinicians the freedom to discuss the cases openly. But with criminal prosecution, it is not at all clear whether such discussions are protected.
"In a New York case, the judge said that information was admissible, but in a Florida case, the judge said the information was still confidential and not admissible," she says. "The law will vary a lot from state to state, so risk managers should research that in their own states. If you’re trying to improve communications about these cases, your staff will be very concerned about the confidentiality of these meetings."
Some states have tried to make it easier to treat the pain of terminally ill patients, making it clear in rulings in recent years that physicians intending to treat the pain with reasonable methods will not be prosecuted for inadvertently hastening death. And recent U.S. Supreme Court decisions regarding assisted suicide "should make it clear that aggressive palliative care and terminal sedation are perfectly acceptable," Alpers says.
Reference
1. Alpers A. Criminal act or palliative care? Prosecutions involving the care of the dying. J Law, Medicine & Ethics 1998; 26:308-331.
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