Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
In July 2007, a 54-year-old Texas man was seen at a family medical clinic, owned by Ms. A. and Mr. B., seeking pain medication for a chronic back injury. Earlier that year, Ms. A. and Mr. B. had retained Mr. C. to search for a medical director for the clinic, and Dr. D. was hired.
At the patient’s July 2007 visit, he was given prescriptions for acetaminophen with hydrocodone, alprazolam, and carisoprodol. He died two days later.
Plaintiff for the decedent alleged that Dr. D. provided inappropriate dosages and an inappropriate combination of drugs. According to the plaintiff, the decedent was not examined by Dr. D., and it was Dr. D.’s routine to sign preprinted prescriptions without examining patients or even being on the clinic premises.
The plaintiff also alleged negligence in the clinic’s hiring of Dr. D., maintaining that at the time he was hired, Dr. D. was under investigation by the state medical board regarding claims that he had been prescribing narcotics for cash payments; Dr. D.’s medical license had been suspended for a time in the 1990s. The plaintiff alleged gross negligence on the part of Ms. A., Mr. B., and Mr. C. in hiring Dr. D., claiming that they were all aware of Dr. D.’s history, the investigation, and his frequent failure to examine patients.
Ms. A. and Mr. B. claimed that they were unaware of Dr. D.’s background. Mr. C. argued that he had been unable to look into Dr. D.’s background on the medical board’s Web site because he did not know how to use a computer, and that checking Dr. D.’s background was the responsibility of Ms. A. and Mr. B.
Outcome
According to a published account, Mr. B. settled for an undisclosed amount prior to trial. A jury found Dr. D. 65% at fault, the clinic 30% at fault, and Mr. C. 5% at fault. The jury awarded $1.7 million in compensatory damages, $8 million in exemplary damages against Dr. D., and $1 million in exemplary damages against the clinic.
Comment
Prescribing narcotics with no exam, compounded by using preprinted narcotic prescriptions, is clearly egregious and was appropriately met with a substantial verdict. However, a version of this patient is seen in ambulatory settings every day: the patient with chronic pain, requesting (or commonly demanding) combinations of potent substances. It bears repeating that additive effects, such as central nervous system and respiratory depression, must be considered when prescribing or refilling medications.
Cases of “unintentional overdose” are a common source of malpractice litigation. A plaintiff’s lawyer will characterize a patient’s frequent and urgent demands for controlled substances as a “cry for help”—a cry that should have been recognized by the clinician.
While the result may depend on the jury pool, many jurors would have no trouble placing blame on a clinician now cast as “an enabler.” The patient’s friends and family, who may have formerly pressured clinicians to prescribe controlled substances for the patient, now may insist the clinician “kept him drugged up.”
Ideally, patients with heavy demands for controlled substances would be evaluated and managed in a chronic pain practice, or pursuant to a chronic pain policy. Both help minimize “doctor shopping,” improve patient care and adherence to accepted pain management strategies, provide a reasonable means to handle abusive or overly demanding patients, and provide a “unified front” for prescribing within a group. Clinicians should be prepared to meet high-pressure demands for narcotics with a frank response, saying that a clinician may be sanctioned for prescribing powerful substances that can have lethal effects.
Judge the need for narcotics independently, and conduct an appropriate examination—even in the patient of another clinician who insists he or she “just needs a refill.” Explain the inherent risks of polypharmacy, and document the discussion.
Conduct short, periodic staff meetings to discuss any patients with heavy or concerning controlled substance use. At the same time, treat all patients with concern and respect and compassion. —DML