Opioids: Physician Liability

1238683_untitledAs the opioid epidemic continues to cause death and create economic hardships within the nation, criminal prosecutors and law enforcement agents have increased their focus on prosecuting and pursuing severe penalties against doctors, pharmacists, nurses and other healthcare providers as a deterrent for providers who would prescribe opioids in excess. For example, earlier this month, a doctor in Kansas was sentenced to life in prison after distributing prescription drugs that caused the death of his patient. Steven Henson, a physician based in Wichita, was convicted of numerous criminal charges after prescribing opioids in amounts that could lead to addiction and economic hardship, after his patient died from overdose. According to the Department of Justice, Henson prescribed maximum-strength opioids in dangerous quantities. Evidence showed that he wrote prescriptions for patients without a medical need and without providing a medical exam. He also post-dated prescriptions and prescribed them in return for cash.

Henson’s case is not unique. In December 2018, physician Phillip Dean of Missouri was sentenced to 40 months in prison and ordered to pay $312,377 to Medicare and Medicaid after illegally distributing opioid medications. In Massachusetts, Dr. Richard Miron was charged with involuntary manslaughter, after being found responsible for the death of a patient in 2016.

According to a report from the Department of Health and Human Services, in 2017, more than 130 people died from opioid-related overdoses each day; more than 40% of those deaths involved a prescription opioid. Excluding death, the report also shows that 11.4 million people misused prescription opioids. Because of these numbers, laws restricting or limiting the scope of authority of healthcare practitioners to prescribe opioids have been passed nationwide, adding stress to prescribers and creating tensions between physicians and legislators.

In opioid-related malpractice claims, 70% result in clinically-severe patient outcomes; most resulting in death. Most often, such claims occur in outpatient settings, with improper medication management for patients leading to the majority of claims. Monitoring of patients who are prescribed opioids is one of the most essential steps in preventing liability, but failure to monitor patients effectively is one of the most common claims leading to civil liability for a prescriber. Examples of failed monitoring include the lack of reassessment to determine a patient’s need to continue with a certain prescription and failure to evaluate a patient’s ongoing compliance with treatment.

In 2018, only 53% of physicians reported using their state’s prescription drug monitoring program (PDMP), and even those physicians admitted they did not use it regularly, according to the National Institute of Health. States continue to advance methods to monitor prescribing patterns, increasing prescriber liability when patients become addicted to, or injured by opioids. Physician exposure to criminal prosecution, fines, state medical board claims, loss of licensure, and civil liability are some of the results from the attempts of legislators and law enforcement to combat the opioid epidemic.

Georgia Opioid Compliance Abuse Lawyers: Hamil Little PC

The following practices can help decrease the risk of liability and improve patient safety when physicians and other healthcare practitioners prescribe opioids in a medical practice:

  • Prior to a patient’s visit, assess his/her medication history.
  • Educate patients on the importance of proper usage of pain medication.
  • Utilize your state’s prescription drug monitoring program (PDMP) to determine if your patient has obtained opioids from other prescribers.
  • Review your prescribing history.
  • Enable other staff members in your medical office (nurses and non-physicians) to review the state PDMP. (States vary on permissibility of non-physicians accessing the PDMP.)

Our Georgia and South Carolina healthcare lawyers represent physicians and other healthcare providers, professionals and businesses in litigation and transactions. If you have questions about this blog post or any other health care legal issue, contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com.


** Disclaimer: Thoughts shared here do not constitute legal advice. Please consult with an attorney to discuss your legal issue.

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