This case involves a female patient, a public figure who frequently acted as a reliable notary to multiple agreements, who overdosed on narcotic painkillers and died. She received the pills from the defendant doctor based on a referral from a friend. The patient had no medical records in her possession, and there was no pre-treatment drug screening required or requested. This was the patient’s first visit and the plaintiff alleges that she was there to obtain pain killers as she was a known drug abuser. The defendant failed to perform the minimum physical exam in order to identify, confirm, and document the source of pain other than the patient’s history and complaints. In spite of this, the physician immediately prescribed narcotic pain killers. As a result of the treatment provided by the defending doctor, the patient overdosed and died. The plaintiff alleges that the patient’s conduct was foreseeable and thus, does not excuse a medically trained and licensed doctor from performing the minimum physical exam.
Question(s) For Expert Witness
- 1. What is the standard procedure before prescribing drugs to patients?
- 2. What does the minimum physical exam consist of - and is it a breach of the standard of care to fail to adequate perform this in advance of prescribing painkilers to a patient you've never before seen?
- 3. How do you determine if the patient is there to obtain drugs for legitimate medical concerns or is exhibiting drug-seeking behavior?
Expert Witness Response E-007996
Good care concerning opioid prescribing (there is no difference for us whether it’s oxycodone, hydrocodone, morphine, etc) for non-cancer chronic pain includes a thorough history (pain generation, intensity and characteristics, things that exacerbate or improve, timing, previous treatments tried, past medical and surgical history, social history, and review of symptoms, etc.) and physical exam. The physical exam is an important aspect, as it can provide information about other potential undiagnosed comorbidities (obstructive sleep apnea, heart failure, etc.) that could affect a given patient’s response to opioids. Also, it significantly adds information that may help treatment decisions; allodynia and hyperpathia suggesting neuropathic pain; motor weakness and muscle atrophy suggestive of a pinched nerve root; and also information that may raise some concern for drug seeking such as exaggerated pain behaviors, give away weakness, non-concordant responses to various tests. Review of additional diagnostic information is also essential (labs, radiographic images, etc.). Non-opioid strategies should be employed first, or at the very least, documented in detail before consideration of opioid therapy. If considered a good candidate, a risk stratification tool should be performed (ORT – opioid risk tool is a set of questions that indicates whether a patient may have a predisposition towards misuse, abuse or addiction. ORT is what I use, but there are others). I would also have a long discussion about risk and benefits, review the state drug database looking for concerning behaviors (multiple prescribers, pharmacies, etc.), assess a urine drug screen and then sign a contract with the patient. It is difficult to adequately define what the bare minimum of a physical exam is. I would say at least a focused exam of the painful area with mention of gross visual inspection, range of motion, tenderness to touch, and any special relevant maneuvers (straight leg raise suggestive of nerve entrapment). It is a breach of the standard of care to fail to adequately perform a physical in advance of prescribing opioids to a new patient. In my clinic, an 18 year old male better have some overwhelming pain condition to justify chronic opioid therapy – it is very rare. As far as determining if a patient is there to obtain drugs for legitimate medical concerns or not, it is often difficult and really an effort at the best informed decision based on the data present. But it is a combination of the data based on the history, risk profile, physical findings, imagining, etc. The reality is that pain medicine is moving away from chronic opioid therapy in general as we have growing evidence that people on relatively high doses of opioid are self-selective based on psychological comorbidities and that when used for common conditions like back pain, they do worse over time. Sometimes it is the only thing that can provide one with a reasonable quality of life, but it should be used after everything else has failed and the patient is appropriately monitored, as even the most conservative and vigilant prescribers of opioids get duped. It’s just the reality of the current state of the art.
Expert Witness Response E-007994
The FDA is in the process of trying to come up with a standard “contract” for prescribing opioids (I just reviewed a manuscript from them), and the DEA likewise gets many recommendations from organizations on how doctors should prescribe opioids (though this really is not part of their mission), most of which they ignore or dispute. There is no “opioid prescribing standard,” but there is a standard for acceptable medical practice. If the patient had a complaint, then the physical exam should have been focused towards that complaint. The determination of whether or not the patient is “drug-seeking” is based on many factors (i.e. the presence of “red flags”). This is a very complicated issue, but it seems as if the doctor failed to appropriately screen this patient.