There is little doubt that the number of Americans who are addicted to
opioid analgesics (“pain killers”) such as fentanyl, Oxycontin,
and Vicodin. Since all these medications are only available from a licensed
health care practitioner, the question that most often arises is “Can
prescribing opioid pain relievers to a patient who becomes addicted to
such medication be considered medical malpractice?” As is usually
the case when questions of medicine and law intersect, there is no answer
that applies to every possible situation.
In order to prove medical malpractice, a medical malpractice lawyer usually
must be able to show that a treatment or some other course of action was:
- not consistent with the standard or care that would be expected of a practitioner
with similar training and experience, or
- clearly not indicated given the clinical situation, and
- the patient suffered some injury that was a direct result of the practitioner’s action.
To understand how these criteria apply to the question of addiction as
medical malpractice we need to take a broad look at the “standard
of care” that might be prescribed for any given patient.
- Based on the available data, the mere fact that a patient became addicted
to his or her medication is not an indication that medical malpractice
Over the years, medical studies have demonstrated that
some patients will become addicted to physician-prescribed opioid analgesic
medications. However, these studies have also consistently shown that
the number of original opioid addiction cases that are confirmed as arising
from chronic pain management situations ranges from 4 to 5% of all patients
with similar causes and degrees of pain and that there is no way to reliably predict
which patients will become addicts. In other words, only about 1 in 20 cases
of addiction can be directly linked to medication that was legitimately
prescribed to treat pain arising from a documented medical condition.
Simple arithmetic thus suggests that most new addiction cases arise from
unsupervised use of opioids that are obtained from friends, family members,
or from unscrupulous medical practitioners operating a “pill mill”
where prescriptions are written for anyone having the cash to pay “upfront
with no questions asked.”
- Did the practitioner try an alternative treatment plan that was ineffective
before prescribing opioids?
Chronic pain almost always arises from a condition that is itself treatable.
As an example, many patients with back injuries have chronic pain that
will respond to physical therapy or surgery. Based on the clinical situation,
not attempting an alternative therapy before prescribing opioids
could be considered as evidence of malpractice.
- Was there a situation where the patient could be reasonably expected to
develop an addiction?
Although there is no test that can predict
which patients will develop an addiction to opiates, there are some medical
histories that are known to be associated with a higher incidence of addiction.
Those patients with medical histories of addiction to other drugs or to
alcohol are known to be at a higher risk of addiction than those without
such histories. Prescribing opioids to a patient with a previous history
of addiction or substance abuse
could be seen as malpractice.
- Was the patient seen by, or in consultation with, a pain management specialist?
Over the last decade, the sub-specialty of pain management developed primarily
among anesthesiologists and oncologists (cancer specialists). The anesthesia
specialists have developed several new techniques that utilize special
injections called nerve blocks that have dramatically reduced the need
for all types of pain medications while the cancer physicians are routinely
using medical-grade marijuana to help with pain control (in those states
that have decriminalized marijuana that is authorized by a health care
provider). Patients who are managed by a pain specialist are less likely
to become addicts.
On the other hand, those patients who are seen in the storefront “pain
clinics” that are becoming commonplace in many cities are almost
assured of becoming addicts (if they weren’t already addicts). Any
treatment provided by such locations has a very high likelihood of being
considered medical malpractice, if not a criminal act.
Although there is a growing problem with addiction to opioid pain medication,
the available medical research and statistical data suggest that there
is no reliable method to predict which patients will become addicts. In
the absence of such predictive tests, an allegation of medical malpractice
will have to be supported by other findings.
Anyone suspecting that they, or a family member, have been a victim of
medical malpractice involving addictive medications such as opioids and/or
related compounds should seek an appointment with an experienced medical
malpractice lawyer to review the facts of their case in the light of local
medical practice standards and the provider’s professional education
and experience. Although such cases can be hard to prove to a court’s
satisfaction, an experienced malpractice attorney can often use a medical
practitioner’s overall practice and drug prescribing patterns to
prove malpractice involving addictive drugs.