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The Risk of Medical Malpractice Lawsuits for Opioid-Prescribing Physicians

Article by Andrew Hazi, Esq.

As the nation’s opioid epidemic continues, physicians are increasingly facing scrutiny with regard to their prescription practices.  Prescription opioids are at the epicenter of the epidemic.  This in turn has led to a broad range of allegations against physicians who prescribe hydrocodone, oxycodone, morphine and other opioid medications.

In fact, opioid-related medical malpractice claims have become so prevalent that some insurers are now writing policies specifically covering opioid lawsuits. In states such as Pennsylvania, where the law does not cap medical malpractice damages, physicians’ potential liability can be substantial. Purchasing insurance coverage for opioid-related claims is a virtual necessity for physicians who prescribe and monitor the use of such medications. In today’s litigious environment, plaintiffs’ lawyers are actively marketing to patients who receive opioid prescriptions, and claims can reach into the millions of dollars.  In 2016, a jury in Missouri awarded $17.6 million in damages to Brian Koon, a city parks employee, and his ex-wife, after the jury found Mr. Koon’s physician over-prescribed opioids from 2008 to 2012.

DEFENSE CONSIDERATIONS FOR OPIOID-RELATED MEDICAL MALPRACTICE AND WRONGFUL DEATH CLAIMS

With these issues in mind, physicians must consider the potential legal risks involved with prescribing opioid medications in all aspects of their practice. Beyond adhering to the applicable standard of care, physicians must document their adherence, and they must be able to substantiate the justification for all opioid prescriptions and dosage increases.  From a legal perspective, maintaining clear and thorough patient records is more important than ever.  Medical necessity, routine assessment of the patient’s dependency risk, and dosage considerations must all be documented clearly, and physicians must actively manage their patients’ opioid prescriptions on an ongoing basis. In general, physicians should weigh the risks of prescribing opioids to a particular individual against the benefits before a prescription is written, and should have routine direct contact with the individual to assess need and monitor for behaviors and side effects indicative of addiction.

Any time the dosage is increased, the risks and benefits should be re-assessed at an office visit.  As with all medications, the physician must clearly communicate the risks and benefits to the patient and answer all patient questions. Alternative treatment options should be considered and discussed with the patient prior to being ruled out.  These steps should all be clearly documented.

COMMON CLAIMS IN OPIOID MEDICAL MALPRACTICE LITIGATION

Below are three of the most common claims in opioid medical malpractice litigation:

  1. Lack of medical necessity – in many cases, plaintiffs’ attorneys are alleging that their clients were prescribed opioids that were not medically necessary, either because no treatment was indicated or because an alternative (non-opioid) treatment option was available.
  2. Over prescription of opioids – Claims alleging over-prescription of opioid medications are common as well. This includes claims of unnecessarily relying on opioid medications for treatment of pain and other conditions, overdosing individuals under inpatient and outpatient care, and failing to reduce a prescription when indicated.
  3. Failure to monitor – Once a patient has been prescribed an opioid medication, failure to monitor the patient adequately for signs of dependency (i.e. by refilling prescriptions without conducting an adequate assessment) can also be the basis for a medical malpractice claim.

RISK OF HIGH DAMAGES IN OPIOID MEDICAL MALPRACTICE CLAIMS

Unlike many other states, there is no statutory cap to medical malpractice damages in Pennsylvania.  This means there is no limit to the amount of money damages a jury can award.  Speculative compensatory damages, such as impairment of an individual’s ability to earn wages in the future, loss of enjoyment of life, emotional pain and suffering, and loss of consortium can give rise to high jury verdicts. It is likely juries will be instructed to award punitive damages to punish a physician’s actions and deter similar conduct in the future . Punitive damages are also highly speculative, and can reach millions of dollars.

In the Koons’ case, Brian Koon, a 45-year old city parks employee, established that his opioid addiction impaired his ability to earn future wages and caused his wife to divorce him.  The jury awarded $2.6 million in compensatory damages and $15 million in punitive damages.

One factor contributing to high-damage demands and awards in opioid-related medical malpractice litigation is that plaintiffs tend to be relatively young.  Whether the plaintiff dies or suffers lifelong consequences due to opioid dependence, the damages suffered by a patient in his or her twenties can far exceed those of an aging patient with a more traditional medical malpractice claim.

RELATED LEGAL RISKS FOR PHYSICIANS

While the risk of medical malpractice litigation is substantial, it is not the only legal risk physicians who prescribe opioid medications face.  The U.S. Department of Justice has made targeting physicians who overprescribe opioids a top federal law enforcement priority.  Doctors accused of improperly prescribing opioids can face civil and criminal charges ranging from violations of the Controlled Substances Act to Medicare and Medicaid fraud.  Investigations targeting alleged opioid fraud can proceed quickly, and even physicians who have not intentionally overprescribed opioids or overbilled the federal government can face severe consequences. In federal cases, physicians can face penalties including but not limited to loss of Medicare and Medicaid eligibility, loss of DEA registration, fines, and recoupments.

Allegations of negligent and unlawful prescription practices also have the potential to trigger disciplinary action by the Pennsylvania State Board of Medicine and other medical licensing boards.  Since ethical standards tend to be higher than the standards for civil liability and criminal culpability, an unfavorable judgment is not necessary in order to establish grounds for license suspension or revocation.  Laws, such as Pennsylvania’s MCARE Act and the federal Healthcare Quality Improvement Act, provide that physicians have an obligation to report negligence allegations and medical malpractice settlements; therefore, the potential for adverse licensing action exists even if the underlying case is favorably resolved.

MITIGATING RISK BEFORE, DURING AND AFTER OPIOID-RELATED MEDICAL MALPRACTICE CLAIMS

Thorough and diligent documentation by the physician is one of the most effective foundations for building a defense in an opioid medical malpractice case.  Once a claim has been filed, aggressively challenging the plaintiff’s allegations is also crucial to avoid or mitigate liability.  Regardless of the circumstances, physicians should remember that a plaintiff lodging a complaint and successfully proving liability are two very different propositions.

In medical malpractice litigation, the plaintiff always has the burden of proof.  If a plaintiff cannot prove that the physician was negligent and that negligence caused injury, then there is no liability.  Calling other medical experts to testify as to the standard of care and the limited treatment options available is integral to presenting an effective and complete defense.

If a claim is successful or if an unsuccessful claim exposes potential flaws in a physician’s prescribing or documentation practices, then appropriate remedial action should be taken as soon as possible to avoid future claims and adverse licensure actions.  Depending on the nature of the situation, this remedial action can range from reexamining the physician’s personal prescription practices to adopting or overhauling internal policies and procedures regarding patient documentation.  Ultimately, the patient’s needs must always come first.  Physicians must be cognizant of potential claims and take steps to protect themselves legally in order to preserve their right to practice.

SPEAK WITH A MEDICAL MALPRACTICE DEFENSE ATTORNEY AT BURNS WHITE LLC

Our medical malpractice defense attorneys represent physicians in Pennsylvania and the surrounding states.  If you need legal representation or have questions about what you can do to reduce your risk of opioid-related malpractice claims, we invite you to call 412-995-3000 or contact us online for a confidential initial consultation.