Medical Malpractice and Drug Overdoses

It is well known that prescription painkillers are addictive and susceptible to abuse. This is one of the reasons why the medical community has strayed away from prescribing opioids. Opioids are highly effective and highly addictive pain relievers such as hydrocodone, oxycodone, morphine, hydromorphone, and meperidine. While opioids can be dangerous, they can also play an important role in pain management for patients with more serious pain issues. Supported by growing research saying the risks of opioids are more manageable than previously thought, the medical community became more comfortable with prescribing opioids and loosened many restrictions on their use starting in the 1990s. Since then, the number of opioid prescriptions has skyrocketed.

And with the increase in use came an increase in misuse. The Centers for Disease Control and Prevention (CDC) has said, "Prescription drug abuse is the fastest-growing drug problem in the United States." According to the CDC, since 2000, the number of deaths caused by prescription painkillers has quadrupled. In 2010, the CDC attributed over 16,000 deaths to drug overdoses. Deaths attributed to drug overdoses now outnumber deaths from motor vehicle accidents. And opioids are a driving force behind these deaths. The U.S. Department of Health and Human Services (HHS) has said that nearly 60 percent of deaths caused by drug overdoses involve opioids.

While these statistics are startling, they should not be surprising considering the highly addictive nature of opioids. Addiction, after all, is a disease. As one scholar put it:

The disease of addiction prevents an individual from being able to stop taking the drugs despite knowledge of adverse consequences. Like alcoholism, it is not controlled by willpower. The disease of addiction is a mental disability that presents with a myriad of hallmark signs and symptoms that are well known and readily identifiable in the medical community.

And this disease can be acquired through a prescription. Accordingly, physicians prescribing opioids must take special care in prescribing opioids and monitoring the patient's use thereafter. Failure to do so can result in medical malpractice liability. To satisfy the standard of care, the physician can do a number of things.

First, the physician should screen the patient to determine whether the benefits of opioids outweigh the risks. The physician should interview the patient and conduct a thorough medical history and physical examination, looking for various risk factors associated with substance abuse such as illegal drug use, prior substance abuse, concurrently using other prescribed painkillers like benzodiazepines, psychological disorders, and unemployment status, among other things. The physician might also use various tests to screen the patient such as the Drug Abuse Screening Test (DAST), the Diagnosis, Intractability, Risk, and Efficacy (DIRE) tool, Opioid Risk Tool (ORT), and Screener and Opioid Assessment for Patients with Pain (SOAPP). The physician could even use urine, hair, and blood testing to find evidence of risk factors. But specifically in Ohio, physicians are required to check Ohio's prescription drug database to look for the patient's relevant drug activity.

Second, if the physician screens the patient and still finds opioids appropriate, the physician should fully engage the patient. The physician should fully explain the risks involved to the patient before giving consent to the treatment. The physician could also ask the patient to sign an opioid treatment agreement, detailing any risks and what is expected between the physician and the patient. Involving the patient's family in the agreement can make treatment even more effective.

Third, if both the physician and patient agree to the treatment, the physician should nonetheless avoid opioid use as much as possible and use the minimal amount necessary. The use of the highly addictive opioids should be a last resort. If appropriate, physicians should first use non-opioid painkillers or alternative therapies such as physical, psychological, or occupational therapy. But once opioids become the only appropriate option, the doctor should prescribe the minimal dosage, recommended for not more than 50 mg of the Morphine Equivalent Dosage (MED), and for the shortest applicable period.

Fourth, the physician should actively monitor the effectiveness and necessity of the treatment as well as the patient's compliance with the treatment, frequently checking in with the patient, other health care providers, and any other relevant source of information. In so doing, further drug testing may be required.

Fifth, if treatment is found to be ineffective or unnecessary, or if the patient is noncompliant with the treatment, the doctor should modify the use of opioids or pursue other forms of treatment.

Failure to do any of the above can be malpractice, and not only with regard to opioids. Central Nervous System (CNS) depressants, including propofol, barbiturates, and benzodiazepines like alprazolam and diazepam, are another category of prescription drugs prone to abuse for their euphoric effects. Yet another group of prescription drugs that are often abused is stimulants, which include methylphenidate, dextroamphetamine, and pemoline. Failing to take special care in prescribing these drugs can be malpractice as well.

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