Over the course of 34 years of practicing law, I have witnessed the metamorphosis from self-responsibility for one’s own actions to the current legal environment where no action or death is without fault wherein someone should pay.
A drunk driver runs off the road and is injured, a lawsuit follows against the car manufacturer for defective airbags or seatbelts, and a lawsuit is filed against the state for defective road conditions or barriers.
An elderly resident at a senior care center passes away, lawsuits follow against the care center for failure to monitor the resident, notify a physician or ensure that appropriate medication was provided. Naturally, the physician will also be sued for wrongful death for not visiting the patient with appropriate frequency, or not providing appropriate orders to medical staff at the care center, or failure to diagnose, etc.
Now carry the trend further - opioid addiction. One cannot dispute that the improper use of opioids builds tolerance and dependency, resulting in addiction. The addiction may often lead to a progression of illegal cheaper substances such as heroin. The final progression is treatment or death. Who is the responsible for the addiction and/or death? It is as easy as following the money. The opioid manufacturers or the physician who prescribes the opioids will be the defendants. Recent trends blame the physician for addiction, overdose or wrongful death. The theories most commonly advanced are failure to weigh the risks and benefits of prescribing opioids, refilling opioid prescriptions early, over prescribing opioids, failure to monitor the use of the opioids, failure to test for dependency and failure to have a plan for the patient to be removed from the opioids.
Wrongful death claims have been filed against physicians for opioid overdose and heroin overdose, even if the individual is no longer a patient, under the theories that the cycle of use of opioid started at an earlier period or that heroin use was the fault of the original physician who prescribed opioids and caused the addiction.
What damages can be recovered? Plaintiffs may seek compensatory damages such as treatment costs, lost wages, loss of consortium, pain and suffering, etc. Plaintiffs may also seek punitive damages, playing on the theme of the national opioid crisis and the need to stop the people responsible for the crisis that is sweeping this nation. A recent Missouri case illustrated the dangerous nature of opioid claims against physicians and hospitals. In Kuhn v. St. Louis University, a physician carelessly prescribed opioids to a patient. The patient began opioids in 2008 and by 2012 was taking 31 times the prescription amount prescribed in 2008. The patient ended up in a rehabilitation program and filed suit. The jury awarded $938,000 to the plaintiff, $804,000 to the patient’s wife and $13,000,000 in punitive damages against the physician and hospital. Punitive damages are not covered under professional liability insurance policies.
Lawsuits are not limited to physicians and opioid manufacturers. In South Carolina, lawsuits have been filed against CVS and other pharmacies for opioid prescriptions. Lawsuits have been filed against drug representatives as well.
What can you do to reduce the threat of a lawsuit for opioid prescriptions?
- Make sure you follow the state statutes, Board of Healing Arts/Medical boards guidelines and the CDC rules on opioid prescriptions and usage.
- Keep careful, accurate records on the thought process of why you are prescribing opioids. Document the 12 CDC rules in the medical records, utilize a check list such as a surgery check list, and enter into a “pain contract” with the patient, outlining the plan for opioid use and the discontinuation of opioids. Document the patient use trends such as refill use, timing of refills and duration of total use of opioids.
- Determine if you are the first health care provider in the line of care who has prescribed opioids or part of the chain of use.
- Consider an initial drug test and pregnancy test and obtain all medical records from all health care providers prior to the prescription of opioids.
- If opioids are necessary, limit treatment to a period of no greater than 30 days, and then re-evaluate.
- Always calculate and document the patient’s morphine milligram equivalent of the opioids prescribed so the dosage can be monitored and tapered when necessary.
- Never authorize refills with less than 72 hours’ notice.
Finally, consider alternative pain management options. Remember that pain is temporary. It would be better to be sued for not treating the pain with justification than to be sued for addiction, with potentially no insurance coverage to protect your assets.
JONATHAN L. DOWNARD, J.D.
CHIEF EXECUTIVE OFFICER
PHYSICIANS STANDARD INSURANCE COMPANY
PICTURED, FROM LEFT: Kevin L. Threlkeld, MD, Secretary; Jonathan L. Downard, JD, CEO; Susan G. Tenney, Vice President Sales & Marketing; Robert L. Hall, MD, Treasurer
NOT PICTURED: Karl R. Stark, MD, President
Physicians Standard Insurance Company
287 N. Lindbergh Boulevard,
St. Louis, MO 63141