Opioid Crisis: How Doctors and Hospitals Can Help Defend Themselves from Legal Liability
Written by Kristin Lausten
The opioid crisis is here and it shows no particular sign of dissipating. In 2015, more than 33,000 people died from opioid abuse and many of those were from abuse of prescription opioids. The number exceeded 60,000 in 2016. Opioids have been described as “the deadliest drug crisis in American history.”
Physicians, hospitals, and healthcare professionals here in New Orleans and across Louisiana are being sued for wrongful death and malpractice based on the misuse of prescribed opioids by their patients. This is based on the idea of “foreseeability.” Despite the recent uptick in opioid litigation, there are many steps that hospitals and healing arts practitioners can take to lower their legal malpractice risks.
New Orleans Malpractice Defense: Foreseeability and Malpractice Under Louisiana Law
It has long been held in Louisiana that “foreseeab[ility]” is a large factor in malpractice cases. See Pitre v. Opelousas General Hosp., 530 So. 2d 1151 (La. Supreme Court 1988). In that case, a malpractice claim was ultimately rejected on the grounds that the particular genetic defect was not reasonably foreseeable from the perspective of the treating physician. In so holding, though, the Louisiana Supreme Court made it clear that foreseeability played a large role in determination of duty and breach of duty. As the court stated:
“The time has come when we can and should say that each person owes a duty to take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure a present or future member of society unless there is some justification or valid explanation for its exclusion.”
More recently, in the case of McDougald v. St. Francis North Hosp., Inc., 137 So. 3d 1233 (La. App. 2nd Cir. 2014), it was held that a “physician is not required to disclose risks to a patient that are not reasonably foreseeable …”
Applying the doctrine of foreseeability to the opioid crisis, — at the beginning of the crisis — medical practitioners may have been able to rely on the non-foreseeability defense. Not anymore. As the opioid litigation evolves, there are steps that hospitals, doctors and other medical professionals should undertake in the (highly likely) event of malpractice suits.
New Orleans Malpractice Defense: Steps to Take to Help Your Malpractice Defense
There are many steps and actions that can be taken by hospitals, physicians, clinics, and other healing arts practitioners to help in the event of an opioid-related malpractice lawsuit. These steps are fueled by the need to be aware and proactive. Furthermore, no one step is sufficient; as a multi-pronged approach is needed. Below are a few steps practitioners should consider:
- Full, proper, accurate and written disclosure of risks of addiction — this is a key step since “failure to warn” is often the first charge of malpractice; thus, when prescribing opioids, special care should be made with the disclosures; make sure any disclosures are in writing
- Watch carefully for signs of addition — does the patient come back for refills sooner than expected, or claiming the prescription was lost or stolen, etc.? Is the patient showing signs of using more than the prescribed doses? Is the patient showing signs of heroin addiction?
- Prescribe different medications when there are signs of addiction
- Prescribe only a small number of doses (as few as five or 10) — this is inconvenient to the patient, but it lessens the risk of legal exposure if the patient sells or diverts the opioids post-prescribing; the issue here is that heroin is cheaper than the prescription opioids, so some patient sell/exchange their prescription to obtain heroin
- Establish practice-wide policies of prescribing addictive opioids only when less-addictive options are not working
- Establish training protocols — yes, everyone is busy and no one likes “school,” but annual training is persuasive with judges and juries; video training is acceptable
- Create the position of “Substance Abuse Director” or other point person — this person will, for example, create the policies, guide the training, etc.; having a point person ensures a competent and knowledgeable person is available for litigation, governmental investigations, and/or media focus
- Ensure practice-wide compliance with prescribing guidelines from state and federal agencies
- Ensure practice-wide compliance with applicable standard of care for prescribing opioids — make sure your practice is up-to-date on the standard of care; it is changing regularly; this is part of the training protocol
- Severely limit the use of tele-medicine to prescribe medications with a risk of dependency and require in-office appointments for all opioids
- Develop reporting protocols when “red flags” are seen
In the current legal climate, hospitals, pain management clinics, physicians, pharmacists and pharmacies, among others, who dispense an increased number of opioids, as well as their malpractice carriers and liability insurers should prepare for potential involvement in opioid related litigation. Part of your preparation should include considering and implementing these and other steps and procedures which may assist your defense attorney in marshaling a stronger legal defense.
Defending Against Opioid Cases in Louisiana: Contact New Orleans Attorney Kristin M. Lausten
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Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.