To: ALL INTERESTED PHYSICIANS
Last month’s newsletter addressed an Administrative Warning attended by our office, before the New York State Board for Professional Medical Conduct, (OPMC), concerning the prescribing of certain prescriptions to a family member. It brought to mind a matter we reported on some time ago regarding the conviction of a physician of manslaughter on the grounds of improper prescribing of opioids and related circumstances. It seemed only a matter of time before we would hear of a civil suit, seeking money damages and based upon a similar sounding of facts to appear in the law journals, and it did not take long.
It would appear that the patient had been treated in Nassau County but had sufficient ties to Bronx County to enable a suit to be brought in that borough – a prime haven for favorable plaintiff results – particularly those claiming alleged medical malpractice.
The facts – patient overdosed on a combination of prescription medicines and illicit drugs. Physician had prescribed opioids and alprazolam for more than a year prior to death and it appears from the reports that patient may have been treated by an orthopedist prior to, or during, the course of treatment. The claim of the estate was that the treating physician had both enhanced and encouraged the drug consumption which led to the fatal overdose.
Defendant physician asked the court to dismiss the case and when denied then brought an appeal of the initial decision.
Unfortunately, the defendant was unable to establish that an informed consent had been obtained from the patient. The appeal court further found that whether or not the physician should have contacted the orthopedist and devised a treatment plan was a question of fact best suited for a jury to determine and not one which could be dismissed as a matter of law by the court.
The court ruled that the procurement of illicit drugs by the patient was not an unforeseeable event which could excuse the practitioner. The record did show a history of opioid dependence and drug abuse prior to the first treatment by the defendant. The record further showed the physician refilled oxycodone prescriptions and continued after the patient complained of rashes following fentanyl patches. Although the chart showed that there had been discussion about the need to lower the medication levels the prescribing continued. The amount of opioids prescribed were never reduced. Troubling for the profession was the finding of the court that this was not an unforeseeable event. The defense contention that doctors should not become “detective agencies” was rejected with the court holding that the failure to consult the orthopedists who had treated the patient was a fatal error.
The defense also argued that the treatment was not a proximate cause of the patient’s demise but, as mentioned earlier, the court found that this was not an unforeseeable event which could be explained away by a defense and that a warning should have been issued by the defendant to the patient of the dangers of using opioids and alprazolam and the chart was lacking as to whether this had occurred.
The case is a caution to anyone treating this difficult type of patient to have charting which is abundantly clear on the issues of warnings to patients so that one does not have to explain in a court or disciplinary proceeding as to why this may not have occurred.