Overdose: Mitigating the Legal Risk

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Although overdose statistics and information on prevention are readily available, ways in which clinicians should respond when learning of a patient overdose are less commonly addressed.
Although overdose statistics and information on prevention are readily available, ways in which clinicians should respond when learning of a patient overdose are less commonly addressed.
The following article features coverage from PAINWeek 2017 in Las Vegas, Nevada. Click here to read more of Clinical Pain Advisor's conference coverage.

LAS VEGAS – At PAINWeek 2017, held September 5-9, legal consultant Jennifer Bolen, JD, discussed risk reduction of and response to medication overdose events.1

Although overdose statistics and information on prevention are readily available, ways in which clinicians should respond when learning of a patient overdose are less commonly addressed. “Many physicians and allied health care practitioners are unaware of the legal issues surrounding overdose events – both fatal and nonfatal,” Ms Bolen told Clinical Pain Advisor. “Often, prescribers are the last to learn about an overdose event and, worse yet, fail to take action once notified.” 

Ms Bolen reviewed several recent news stories about physicians found to be liable in the overdose deaths of 1 or more patients, including a 2015 case involving the first US physician to be convicted of murder for reckless overprescribing.2 The physician was found to have written more than 27,000 prescriptions for pain medications over a period of 3 years.

Ms Bolen anticipates that a growing number of such cases are likely, especially since the formation of a federal task force focused on this issue. In August 2017, the US Department of Justice announced the assignment of 12 federal prosecutors to the new Opioid Fraud and Abuse Detection Unit.3 The appointees will collaborate with state and federal agencies to prosecute physicians, pharmacists, and others found to be contributors to the opioid crisis in high-risk areas.

Providers who prescribe opioids and benzodiazepines; have patients with medical comorbidities, more than 90 mg morphine milligram equivalent, or a history of substance abuse; or have patients who were previously discharged by other providers due to problematic drug-related behavior are at increased risk for legal action pertaining to patient overdose.

To gauge and improve their level of preparedness in the event of a patient overdose, physicians should take the following steps:

  • Identify 3 patient charts: a new patient, an established patient at high risk for overdose, and an established patient who has been on opioid therapy for more than 3 years.
  • Review relevant state licensing boards for rules for pain clinic operations and guidelines for prescribing chronic opioid therapy.
  • Make a list of board directives applicable to their practice.
  • Review the 3 previously mentioned charts while considering these board directives in order to identify areas of vulnerability.
  • Create a risk triage plan to be implemented when learning of a patient overdose, including legal counsel and ongoing legal monitoring of cases.

“Policies and protocols should not only cover action items upon discovery of a patient overdose event but also proactive measures for ensuring adherence to current standards of care and education of medical office staff and patients,” said Ms Bolen. She expects overdose event reporting requirements to increase in 2018, further underscoring the need for adequate panning, evaluation, monitoring, and documentation. “While prescribers cannot control what their patients do once they leave the medical office, they are responsible for establishing a safe framework for opioid prescribing, including a proper response when something goes wrong.”

Disclosure

Ms Bolen reports consulting relationships with Alere, Inc.; MTL Solutions, LLC; ReCept Pharmacy; and Generation Partners. 

Read more of Clinical Pain Advisor's coverage of PAINWeek 2017 by visiting the conference page.

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References

  1. Bolen J. Overdose: a basic blueprint for legal risk mitigation and response. Presented at Pain Week 2017; September 5-9, 2017; Las Vegas, NV.
  2. Gerber M, Girion L, Queally J. California doctor convicted of murder in overdose deaths of patients. Available at: http://www.latimes.com/local/lanow/la-me-ln-doctor-prescription-drugs-murder-overdose-verdict-20151030-story.html. Accessed September 1, 2017.
  3. US Department of Justice. Attorney General Sessions announces opioid fraud and abuse detection unit. Available at: https://www.justice.gov/opa/pr/attorney-general-sessions-announces-opioid-fraud-and-abuse-detection-unit. Accessed September 1, 2017.
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