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This paper explores the intricate legal landscape surrounding the management of pain using opioid medications in the United States. It examines the implications of federal and state regulations, including the Controlled Substances Act and the Oregon Death with Dignity Act, as they pertain to prescribing practices. It highlights the standard of care required of physicians, potential malpractice risks, and the nuances of liability associated with negligence, addiction, and dependency. By analyzing landmark cases and current guidelines, this work aims to provide healthcare professionals with insights into their legal responsibilities when treating patients with opioids.
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LEGAL LIABILITY FOR PAIN MANAGEMENT INVOLVING OPIOD MEDICATION: AN AMERICAN PERSPECTIVEDr Danuta MendelsonDeakin UniversityMelbourne Australiadmendel@deakin.edu.au
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)
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
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
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
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”
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
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).
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)
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
