Patient Agreements Help Avoid Liability for Prescribing Painkillers

Physicians and healthcare institutions have begun experimenting with new tactics to combat the recent dramatic increases in prescription drug abuse. An important tactic involves implementing agreements with patients to protect against physician liability for patient abuse of prescription painkillers. Attorney Michael A. Moroney recently addressed the merits of Patient Agreements, which he recommends his physician and health care facility clients use. He described obtaining the Patient Agreement as being similar to obtaining an “informed consent” from a patient, but with specific language used  when narcotics or pain medications are being prescribed. According to Moroney, in the Patient Agreement the patient acknowledges and accepts in writing “the parameters under which the physician is prescribing the medications” and consents to “the specific directions governing the use of the narcotic or pain medication.” The acknowledgement might state that the patient understands “these are the parameters under which [the medication] is being prescribed, under which I’m being permitted to use it, and this is how I agree to use it.” The patient should acknowledge that the prescription is for a specific dose only, and that the patient cannot take more or less of the medication than what is being prescribed.

Moroney stressed the importance of including in the agreement the patient’s acknowledgement that if the patient “then goes to see a different physician for the same or even a different ailment (where the patient may or may not disclose seeing our physician), resulting in that subsequent physician writing a different prescription, then the patient understands and accepts that all bets are off with regard to the prior prescription…[A] deviation will trigger the risk of the medication no longer being prescribed by [our] physician.” Another merit of using the Patient Agreement, Moroney noted, is that it gives the physician the ability to say “I am not treating you anymore” without the facing the fear of an abandonment issue.

“We are seeing that this approach is effective at protecting the physician while giving patients the information they need to understand that this could be an issue with the regimen the physician is prescribing,” Moroney said.

“Prescription drug overdose is epidemic in the United States. All too often, and in far too many communities, the treatment is becoming the problem,” said the CDC Director Tom Frieden, M.D., M.P.H. “Overdose rates are higher where these drugs are prescribed more frequently. States and practices where prescribing rates are highest need to take a particularly hard look at ways to reduce the inappropriate prescription of these dangerous drugs.” See the Centers for Disease Control Report “Opioid painkiller prescribing varies widely among states; Where you live makes a difference.”

In the recent case of Komlodi v. Picciano, 217 N.J. 387, 89 A.3d 1234 (N.J. May 20, 2014), a malpractice action against a physician and hospital, the physician prescribed a narcotic patch to the patient, who suffered from chronic back pain and who was known to abuse alcohol and drugs. The patient orally ingested the patch. The 75-microgram Duragesic patch was intended to be applied to the outer skin and to release the drug fentanyl over a 72-hour period. The patch has the potency of 80 Percocet tablets. The patient failed to use the patch properly and orally ingested the Duragesic patch, causing a severe and permanent brain injury. The complaint alleged that the physician breached the duty of care by failing to protect the patient, who had a history of alcohol and drug abuse, from self-injury.

The Komlodi court noted that in certain circumstances, depending on the condition a patient presents, the physician’s duty of care may include the duty to prevent a patient from engaging in self-damaging acts. In cases where a patient is responsible, in whole or in part, for the harm or injury the patient suffers, the doctrines of comparative negligence, avoidable consequences, or superseding/intervening causation may serve to absolve a defendant of liability or limit the damages. A superseding/intervening cause jury instruction that was molded to the facts of this case was warranted on the basis that the physician prescribed the narcotic patch to the patient, who was known to abuse alcohol and drugs, and who orally ingested the patch, where the jury had to determine whether, given the patient’s medical history of addiction to alcohol and drugs, her oral ingestion of the patch was reasonably foreseeable or was a remote or abnormal incident of the risk of self-injury that was not otherwise reasonably foreseeable by the defendants. Intertwined with that question was whether the patient’s act was volitional and not attributable to her disorder or condition. Also, an avoidable-consequences charge was warranted on the basis that the physician prescribed the narcotic patch to the patient, who was known to abuse alcohol and drugs, and who orally ingested the patch, where the jury had to determine whether and to what degree the patient had the capacity to act reasonably to care for herself in light of her health or mental condition.

Because malpractice liability exposure may arise against a physician or health care facility, as in Komlodi and similar drug abuse and overdose cases, it is advisable for the health care provider to implement a Patient Agreement stating that patient abuse of a prescription painkiller will result in the provider discontinuing patient treatment. The agreement may go far in protecting the physician from an allegation the physician breached  the duty of care owed to the patient.

 

Medical Law Perspectives presents 50-page detailed reports on medical litigation in the news for attorneys, physicians, insurers, and employers. The January 2013 report on vaccine litigation contains additional expert comments and detailed medical and law information.  Monique C.M. Leahy, JD, Publisher can be reached at mleahy@wordsworthlaw.com; 212.213.0222; www.medicallawperspectives.com.

The writers’ opinions are those of the writers and not ALM. This material is intended for general information purposes only and does not constitute legal advice.

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