Do ED Patients Have Legal Right to Receive Narcotics?
Mitigate risk of misdiagnosis
Your ED patient has the right to receive a medical screening examination and a thorough evaluation, but he or she does not have a legal right to obtain specific pain medications, according to Knox H. Todd, MD, MPH, professor and chair of the Department of Emergency Medicine at the University of Texas MD Anderson Cancer Center in Houston.
"Emergency physicians [EPs] often voice concerns that patients can demand opioids with backing of the legal system, but these concerns are unfounded," says Todd. "Patients may have a right to appropriate pain treatment, but there is no right to receive opioids."
EPs are often worried that patients can successfully sue simply because they aren't given narcotics to manage their pain, acknowledges Andrew Lawson, MD, FACEP, CPCC, acting director of quality assurance and quality improvement for the emergency physician group at Mission Hospital Regional Medical Center and principal of Lawson Coaching and Consulting, both in Southern California.
In fact, says Lawson, plaintiff attorneys aren't looking for battles they're looking for low-hanging fruit.
"They're not going to go after EPs for not giving narcotics, and if they are, they're not going to be successful," he says. "It is exceedingly rare that a lawsuit is going to occur if a non-narcotic medication is offered, unless there is an obvious severe injury."
The EP may give acetaminophen to a chronic back pain patient with no legal repercussions, but if that same patient presents with a broken femur, "you have to take them off the wagon and given them narcotics," says Lawson.
"You will get burned by EMTALA [the Emergency Medical Treatment and Labor Act] if a chronic pain patient comes in with a truly acute condition and you refuse to adequately manage their pain, which could very well involve the administration of narcotics," he warns.
Risk of misdiagnosis
An EP may suspect a patient is a drug seeker because he or she asks for Dilaudid by name, and this "will often be correct, but not always," says Michelle M. Garzon, JD, an attorney with Williams Kastner in Tacoma, WA. "There is a risk of missing something real."
Garzon has represented several EPs who were sued by patients alleging misdiagnosis where pain management was a component.
"If the patient is reporting a nine out of 10 pain score and is sent home with just one Percocet and not a thorough workup, that leaves a big gap for the plaintiff to say, 'They were treating me like they thought I was drug-seeking, and that is why they missed my diagnosis," she says.
If the EP's documentation shows, however, that a complete head-to-toe examination with a focal examination to address the pain complaint was done, says Garzon, "that can take the wind out of the plaintiff's sails. You can document that the patient's pain was out of proportion with the objective evaluation, as long as you can show that a thorough evaluation was done before you came to that conclusion."
Garzon says that once the EP has ruled out underlying causes of the pain, the best practice is to address the pain complaint, prescribe a limited amount of medication, and advise the patient to follow up with his or her primary provider within a certain period of time.
No SOC for Monitoring
Prescription monitoring programs are often unusable in the acute setting, according to Todd. The EP's judgment may be informed by data from a prescription monitoring program when available, but there is no standard of care that requires an EP to make routine requests for this data, he says.
"Clinicians are responsible for making a clinical judgment regarding a patient's risk for opioid misuse, and prescribing accordingly," he adds. Here are other risk-reducing strategies for patients who are possibly drug-seeking:
Be specific about what you excluded and why.
Incomplete charting can make it appear as though the EP was rushing through the process because he or she assumed the patient was a drug seeker, says Garzon.
Garzon notes that many of the EPs she's defended have told her they weren't surprised when a particular patient filed a lawsuit, saying, "I just had a bad feeling about this."
"If you are feeling that way about a patient you suspect is drug-seeking, you may want to be especially careful in documenting how you ruled out that the pain was not indicative of any kind of clinical problem going on," she says. "Show what diagnoses you considered and why these were ruled out."
Be specific in discharge instructions as to exactly where the patient should obtain follow-up care.
If the patient doesn't have a primary care physician, you can put in the name of a community clinic, says Garzon. "Putting in the phone number is an extra step you can take," she adds. "If you want to go one step further, you could say in the narrative notes, 'I discussed follow-up and provided a phone number.' That usually seals that issue. I haven't seen plaintiffs get past that."
Do not prescribe long-acting opioids to patients with acute pain or acute exacerbations of chronic pain.
The patient is at risk for over-sedation and respiratory depression, particularly if long-acting opioids are taken as needed, explains Todd. "Such adverse effects can lead to litigation if long-acting opioids are prescribed inappropriately," he adds.
Long-acting opioids are not indicated for acute pain, he explains, and requests for refills of long-acting opioids should prompt the EP to refer the patient to a chronic pain specialist or contact the patient's primary care physician.
"An opioid-related bad outcome occurring after prescribing unduly large quantities of short-acting opioids or long-acting opioids for the non-opioid-tolerant patient would seem to pose the most risk," says Todd.
If you document your belief that the patient has a drug dependency, be sure there are enough data in the chart to support this.
It's not enough to chart that the patient has a toothache and hasn't gone to his dentist, says Lawson. "You don't want to jump to that conclusion unless you have some pretty good support," he says.
For instance, the EP might chart, "I saw Mr. Jones before, and my partners have seen him 17 times in the last months. He asks for narcotics by name. I tried to contact his primary care doctor and was unsuccessful," says Lawson.
Involve the patient's primary care physician, the ED charge nurse, and the patient's family members.
"There is safety in numbers. If you have a united front, that is going to protect you from any legal risk you might encounter," Lawson says.
If a family member acknowledges the patient's drug dependency or the primary care physician advises the EP against giving the patient narcotics, document this, advises Lawson.
Don't give narcotics unless you know the patient has transportation.
"We have all probably heard of the case of the patient who gets narcotics, gets discharged, and then gets pulled over by the police and arrested for driving under the influence, or even worse, harms someone while driving under the influence," says Lawson.
This can be prevented by having a policy in place stating that patients will not be given narcotics until a family member is present to drive them home, says Lawson.
Allow the record to show your concern for the patient's well-being.
For example, the EP may chart, "I am concerned about a drug dependency issue," or "The patient felt cold so I got him a blanket."
"That is a bulletproof chart in my mind. When somebody is blowing the chart up in the courtroom, it's very clear to everyone that the EP was concerned about the patient," says Lawson.
If the patient later claims the EP was callous and rushed the exam, "this is contemporaneous documentation and should win out," says Lawson. "Don't let the lawyer spin any tales."
Sources
For more information, contact:
Michelle M. Garzon, JD, Williams Kastner, Tacoma, WA. Phone: (253) 552-4090. Fax: (253) 593-5625. Email: [email protected].
Andrew Lawson, MD, FACEP, CPCC, Lawson Coaching & Consulting, Newport Beach, CA. Phone: (949) 400-5216. Email: [email protected]. Web: www.thelawsuitcoach.com.
Knox H. Todd, MD, MPH, Professor and Chair, Department of Emergency Medicine, The University of Texas MD Anderson Cancer Center, Houston. Phone: (713) 745-9911. Fax: (713) 792-8743. Email: [email protected].
Your ED patient has the right to receive a medical screening examination and a thorough evaluation, but he or she does not have a legal right to obtain specific pain medications, according to Knox H. Todd, MD, MPH, professor and chair of the Department of Emergency Medicine at the University of Texas MD Anderson Cancer Center in Houston.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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