Legal Risks of Treating the Pain Patient (Part I)

FEBRUARY 03, 2010
Bradley Schmidt
The Liability of Opioid Prescription

It’s no secret that government is looking to plug any and all holes available to drug seekers that facilitate abuse of prescription opioid medications. Certainly these efforts are being undertaken with the best of intentions, however they dramatically increase the chances that a physician can and will be caught up in a legal situation of negative impact.

A recent case of a 72-year-old Massachusetts man who killed a 10-year-old boy while driving, highlights the ramifications of this reality. The man, who had been undergoing chemotherapy treatments for lung cancer, was warned not to drive while receiving these treatments, but was allowed, without caution, to drive after his cancer went into remission, even though he was being prescribed opioid medications.

In addition to suing the elderly man, the parents of the 10-year-old boy sued his physician for negligence, and though the case was initially dismissed, the Massachusetts Supreme Court ruled that the standard of care for primary care physicians must include warnings about adverse effects for patients taking opioids, likening the patient-physician relationship to that of a bar owner and a patron who has had too much to drink.

If you are exposed to risks such as these, don’t wait to institute changes to your patient management policies. The physician owes a duty to everyone at perceivable risk from side effects due to medications that they prescribe. If you can not demonstrate that you have educated your patients about medication risks, then you may be liable for not giving informed consent.

Practice tip: Any patient prescribed opioids should leave your office with some sort of printed form stating that it is the patient’s responsibility to monitor themselves while engaging in behaviors that pose serious risks to others. This should also apply to situations in which there is a major dosage change or a change of medication.

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