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John Ashcroft’s Directive

LEGAL LIABILITY FOR PAIN MANAGEMENT INVOLVING OPIOD MEDICATION : AN AMERICAN PERSPECTIVE Dr Danuta Mendelson Deakin University Melbourne Australia dmendel@deakin.edu.au. John Ashcroft’s Directive. Controlled Substances Act , 21 U.S.C. 801(CSA)

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John Ashcroft’s Directive

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  1. LEGAL LIABILITY FOR PAIN MANAGEMENT INVOLVING OPIOD MEDICATION: AN AMERICAN PERSPECTIVEDr Danuta MendelsonDeakin UniversityMelbourne Australiadmendel@deakin.edu.au

  2. John Ashcroft’s Directive • Controlled Substances Act, 21 U.S.C. 801(CSA) • Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800-.897 (1997) • 9 November 2001:prescribing, dispensing, or administering federally controlled substances to assist suicide violates CSA • Oregon v. Ashcroft 192 F.Supp.2d 1077 D.Or.,2002 (17 April 2002)

  3. State regulations and guidelinesfor controlled substances in treatment of pain • Regulations are enforceable at law • Infringement risks sanctions by Medical Boards • Guidelines are merely advisory • Strong evidence of breach of the required standard of care in a malpractice suit

  4. Duties of physician prescribing opioids • (1) obtain adequate medical and pain history • (2) review of previous diagnostic results, etc • (3) consider substance abuse or dependency • (4) conduct a physical examination • (5) independently determine diagnosis • (6) develop a plan of treatment • (7) document the need for opioids • (8) obtain informed consent for the use of opioids • (9) document on the chart the medication dosage used, etc • (10) monitor the patient’s use of opioids • (11) If the treatment less than optimal: consult with or refer the patient to a pain or drug specialist

  5. LAIBILITY IN NEGLIGENCEStandard of Care • Customary opinion held by a responsible body of medical practitioners • proof of “ordinary care” may prevail over compliance with custom

  6. LIABILITY IN NEGLIGENCECausation • Causal nexus between the breach of duty of care and the injury • Test of general experience and common sense • Wrongful conduct caused an event and that event caused compensable damage • defendant’s conduct caused or materially contributed to the risk of injury • “Loss of chance”

  7. LIABILITY IN NEGLIGENCEAddiction and Dependency • Rajinder Singh, MD v The State Medical Board of Ohio1998 Ohio App LEXIS 2141 • Sherman v Salsberg (unreported, Ontario Court of Justice July 24, 1998 Epstein J) 1998 ACWSJ LEXIS 50193; 1998 ACWSJ 503 • Conrad-Hutsell v Colturi, Court of Appeals of Ohio No. L-01-1227 24 May 2002

  8. DEFENCES • Conrad-Hutsell v Colturi, Court of Appeals of Ohio No. L-01-1227 24 May 2002 • Defence of Voluntary Assumption of Risk • Contributory/Comparative Negligence • Distinction between addiction and dependence • Christine Rowan or Kennedy v Dr Steinberg And Others (unreported, Court of Session: Outer House, 1997, Lord Marnoch).

  9. Excessive doses of opioids resulting in death • People v. Schade, 32 Cal. Rptr. 2d 59 (Cal. Ct. App. 1994); 895 P.2d 55 (1995) • State of Utah v Robert Allen Weitzel (The District Court of Davis County, 11 December 2000, Kay J)

  10. OxyContin • Criminal prosecutions • Foister v. Purdue Pharma, L.P. (E.D. Ky., No. 01-268-DCR, 2/26/02) • Ronald Bodenheimer, Judge of Jefferson Parish Criminal Court Louisiana • Under-treatment of pain and the abuse of OxiContin

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