Dr. Reyes is an assistant professor of pediatrics and a clinical instructor of emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of healthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.
Damned if you do, damned if you don't. This encapsulates the frustration of treating the dreaded pain-seeking patient in the emergency department. I may be a willing accomplice to a patient's addiction if I order a hydromorphone injection or give a narcotic prescription. But am I failing my duty as a physician to alleviate a patient's suffering if I withhold pain management?
Society has given us mixed signals over the years. Pain, we were taught, is the fifth vital sign, emphasizing the idea that we notoriously undertreat acute pain in the ED. States have mandated pain management CME to underscore the importance of treating chronic pain. A moral question arises if physicians equate patient satisfaction with pain control: should we prescribe narcotics to every patient in pain, even the drug seekers, to maintain high patient satisfaction scores?
The media, on the other hand, have shown that physicians can be greedy, negligent, and uncaring practitioners when it comes to overprescribing narcotics. The most notorious headlines include the overdose deaths of Michael Jackson and Anna Nicole Smith, in which physicians behaved criminally to provide narcotics to their clients. This type of behavior is easily identified as criminally negligent, but classifying the medically negligent behavior of emergency physicians in regard to pain prescriptions is less straightforward, and warrants a more detailed analysis.
The Pain Med Crisis
Pain prescription medications became the leading cause of accidental death in 2009, surpassing car accidents for the first time in U.S. history. (See FastLinks.) The CDC reports that misuse and abuse of prescription drugs accounted for 475,000 emergency department visits in 2009, a number that doubled since 2004. (See FastLinks.) Equally troubling is the fact that adolescents comprise the fastest growing group of prescription drug abusers, according to the Substance Abuse and Mental Health Services Administration.
Prescription medications, like secondhand smoke, have a far-reaching effect because three of four people misusing prescription narcotics were not originally prescribed the medication. (See FastLinks.) These data tend to show that a significant amount of pain prescriptions we provide our ED patients contribute to the prescription drug abuse problem by making its way to an unintended population of abusers.
Improper ED Pain Management
Some writers have mischaracterized the problem of ED pain management to create a dilemma: treating pain means giving narcotics to drug users. The problem here is that whether to treat is not the problem; rather, improper narcotic prescribing and failing to treat pain can lead to liability. Liabilities can range from medical malpractice claims because of negligent prescribing or failure to treat pain, civil penalties under the federal False Claims Act and federal Controlled Substances Act because of fraudulent prescribing, and loss of medical licensure and conviction for unlawful prescribing.
A physician may be found negligent for prescribing narcotics to a patient where the physician's prescribing failed to meet the standard of care and this failure caused an overdose or led to addiction. Ways in which a physician's prescribing can fail to meet the standard of care include prescribing a large amount of narcotics or failing to perform a physical exam or conduct an evaluation. (American Law Reports. 44 A.L.R. 6th 391. .) Cases in which a physician's negligent prescribing led to a patient's addiction are concerning because emergency physicians get to know the frequent flyers quite well. An emergency physician who repeatedly prescribes narcotics to frequent flyers is arguably contributing to a patient's addiction, a recognized tort. All that is needed to create a claim is harm, such as the patient's death from overdose.
Physicians may also be negligent for failing to inform patients of the untoward side effects of narcotic medications, which may impair patients and subsequently cause injury to the patient or to a third party. A physician was found liable, for example, for the wrongful death of a third party because he failed to screen the patient for other drugs prior to prescribing methadone before he drove his car. (Cheeks v. Dorsey, 846 So. 2d 1169 .) Alarmingly, physicians not only have to be concerned with the potential liability toward their patients but also to third parties injured by their patients.
A Responsible Approach
A frequent ED visitor who routinely requests a narcotic prescription may be abusing narcotics, and this may increase the misuse of narcotics in unintended populations. Narcotic misuse may be identified by reviewing the patient's prior ED visits and your state's prescription drug monitoring program (PDMP) for multiple narcotic prescriptions. Routine opioid prescriptions for acute exacerbations of noncancer chronic pain should be avoided, and if unavoidable, the lowest amount of narcotic should be prescribed, according to ACEP's clinical policy on prescribing opioids in the ED. (See FastLinks.)
The policy acknowledges that patient satisfaction scores are an issue in treating chronic pain, but prescribing narcotics to patients who may be misusing them to maintain satisfaction scores is misguided, fraught with liability, and should be discouraged.
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* Read the CDC report, “Drug Poisoning Deaths in the United States, 1980–2008,” at http://1.usa.gov/112fzJJ.
* The CDC report, “Policy Impact: Prescription Painkiller Overdoses,” is available at http://1.usa.gov/MAEW9V.
* Review ACEP's clinical policy on prescribing opioids at http://bit.ly/USr3vZ.
* Read Dr. Reyes' past columns at http://bit.ly/ReyesAtYourDefense.
* Comments about this article? Write to EMN at email@example.com.
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