Managing Narcotics Medications

In last month's issue, we discussed some of the problems endemic to the prescription of narcotics that were highlighted by a very instructional 2003 study. Diane E. Hoffman and Anita J. Tarzian, Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. Med. & Ethics 21 (2003). That article went on to offer some valuable advice that prescribers can use when they are faced with a patient suffering from chronic pain yet also want to avoid, as much as possible, potential investigation or liability. Let's discuss some of those recommendations.

Refer the Patient to a Pain Clinic or Pain Specialist

Physicians of many specialties treat patients with chronic pain. However, as the management of chronic pain has become both better understood and more complicated, the population of physicians specializing in pain management has increased. At this point, one can likely find a pain management specialist in every city. Therefore, physicians who have less experience treating patients with chronic pain will usually have the option of referring their patients to a pain specialist for management. Of course, as with any referral, it should be clearly documented in the chart, and the patient should be provided pain treatment until the referral can take place.

The Non-Referring Physician

For those medical care providers who choose to treat patients for chronic pain, the following tips can help assure the prescriber that the treatment will withstand scrutiny by a court or medical board.

Documentation

The significance of documentation in defending an investigation into prescription practices cannot be overstated. Like all medical malpractice actions, a complaint challenging a physician's prescription of narcotics will be correlated with the physician's chart. If a physician is accused of over-prescribing and lacks proper documentation of his or her practices, he or she is much more likely to be investigated and disciplined. Id. at 36. As one respondent stated on behalf of a medical board: “The general policy that was made known to physicians is that we leave prescribing and pain management controls to their professional judgment, but if there is a complaint, they better have proper documentation, such as informed consent, history and physical, monitoring, etc.” Id. at 26.

A defensible chart will include a patient's medical history and evidence of a thorough physical establishing the need for pain medication; a patient assessment and pain diagnosis; a plan of care, regular follow-up and monitoring of the condition and medication; informed consent from the patient; and proper referrals where necessary. 31 J.L. Med. & Ethics at 36. Furthermore, it is in the physician's best interest to maintain actual copies of the prescriptions written for narcotics. Not only does this provide further documentation of the physician's actions, but it also provides evidence of a patient's misuse of the narcotics should the patient be copying, forging or altering prescriptions for narcotics.

State Rules and Guidelines

Many states have “intractable pain statutes” setting forth guidelines for treating patients through the use of controlled substances. 31 J.L. Med. & Ethics at 21. Thus, any physician who is providing treatment for and/or management of any patient's chronic pain should be intimately familiar with any guidelines established by his or her state medical board.

Thirty-two of the 38 boards responding to the survey that formed the basis for the 2003 University of Maryland study had at least some form of guideline, statute, regulation or policy relating to pain management. The survey of state boards showed repeatedly that each board referenced its guidelines when determining whether to investigate a complaint, whether a physician has acted inappropriately and whether and how to discipline. 31 J.L. Med. & Ethics at 26, 29, 31, 36, 37. The more the physician has complied with these guidelines, the less likely a state board is to pursue the investigation.

Further, the American Society of Law, Medicine and Ethics and Federation of State Medical Boards jointly developed Model Guidelines for the Use of Controlled Substances for the Treatment of Pain in 1998. Many state boards have adopted policies consistent with these Model Guidelines. Id. at 23, 36. For physicians practicing in states that do not have guidelines, the Model Guidelines may be helpful in establishing practices for treating chronic pain patients with narcotics that will withstand scrutiny from a court or medical board.

Standard of Care

Again, as with traditional medical malpractice claims, the standard of care will determine liability and will also affect a medical board's determinations regarding licensure. When there is no pertinent board pain management policy or guideline, the various state boards will generally base decisions on whether a physician's prescribing habits followed the standard of care. Interestingly, however, medical boards are generally likely to find that more than a standard of care violation is required to discipline a physician for inadequate treatment of pain. Id. at 31.

Another important point to note is that, when medical boards do look into whether the physician was prescribing narcotics in an amount and frequency that was below the standard of care, they generally try to compare the physician in question with a physician of the same specialty. This can cut both for and against a physician being investigated, depending on their specialty. For example, one respondent before one board stated that “[P]ain management people will write ten times the amount of opioids as other [physicians]. But if a physician's billing as an internist and prescribing the same as a pain management person, we're going to go find out why.” Id. at 27. At the same time, pain management physicians will likely be held to a higher standard in terms of the sophistication of the treatment and documentation of the treatment because they are, after all, specialists in pain management.

Education

Many state boards actually provide education, and certainly private CME courses are available, dealing with the treatment of chronic pain. Before a physician begins accepting and treating chronic pain patients, it is advisable to take such a course (or courses). Physicians are advised to check relevant newsletters, other publications or Web sites for the availability of education or articles regarding pain management. Such courses will not only provide the physician with the latest information on proper management of chronic-pain patients, but will also show medical boards and courts that the physician who took the course had some level of honest commitment to properly treating patients with chronic pain.

Putting It in Practice

The importance of all of the above points was well illustrated in a case out of Ohio in 2002. Conrad-Hutsell v. Colturi, 2002 WL 1290844 (Ohio App. 6 Dist. 2002). In that case, a patient sued her doctor, claiming that between November 1994 and August 1995, the doctor negligently prescribed dangerous and addictive narcotic drugs (Percocet and Tylenol #3), and failed to recognize her addiction to those drugs. The trial court granted a directed verdict to the doctor; however, the appellate court reversed and remanded.

The appellate court began its analysis by outlining the rules regarding written prescriptions for controlled substances that had been promulgated by the Ohio state medical board. Based on those rules, the court found that the doctor had a duty to follow those procedures when prescribing a controlled substance. The appellate court also specifically pointed out that the doctor never sought a complete copy of the patient's prior medical records and never referred the patient to a pain management clinic, even though he suspected overuse and possibly abuse of the narcotics. Finally, the court went on to say that even if a patient exceeds a physician's instructions on the amount of narcotics to use, the physician still has a duty to monitor the patient for signs of abuse and refer the patient for treatment accordingly.

In the category of board actions, as opposed to lawsuits, one needs to look no further than a case out of Louisiana to appreciate the potential pitfalls of the failure to follow medical board guidelines when prescribing narcotics. In Armstrong v. Louisiana State Board of Medical Examiners, 868 So.2d 830, 2003-1241 (La.App. 4 Cir. 2/18/04), a physician appealed the state board's decision to suspend his license to practice medicine for two years based on violations of the board's “Pain Rules.” The physician appealed, but the board's decision was affirmed.

The physician in Armstrong considered himself a pain-management specialist and was investigated for his prescription of various controlled substances and other medications to 11 different patients for their non-cancer-related chronic or intractable pain. The board found that the doctor violated the Pain Rules for these 11 patients by: 1) failing to perform or record in the patients' charts a thorough evaluation of each patient prior to or at any time during treatment; 2) failing to establish or fully document individualized treatment plans; 3) failing to see each patient at appropriate, regular and frequent intervals; 4) failing to document the medical necessity for the use of more than one type of schedule of controlled substance; 5) failing to document accurate and complete records of history, physical, and other examinations and evaluations; and 6) failing to document the date, quantity, dosage, route, frequency of administration, number of refills, and frequency of visits to obtain refills. These are all common pitfalls for physicians who practice in the area of pain management, particularly those who practice pain management within a more general internal medicine practice. The case serves as a lesson for prescribers: Follow board guidelines as much as possible

Conclusion

Medical care providers generally try to do their best, but bad outcomes can still happen. Careful monitoring, documentation and referral, when necessary, will go a long way in supporting a physician's position that he or she appropriately prescribed narcotic medications for patients with chronic pain when called to do so before a court or medical board.

Amy J. Kolczak, a member of this newsletter's Board of Editors, is a partner in Owen, Gleaton, Egan,Jones & Sweeney, LLP in Atlanta, where she has a general civil litigation defense practice including the defense of medical malpractice cases. Melissa P. Reading is an associate with the firm, where she practices in the medical malpractice and products liability groups.

In last month's issue, we discussed some of the problems endemic to the prescription of narcotics that were highlighted by a very instructional 2003 study. Diane E. Hoffman and Anita J. Tarzian, Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. Med. & Ethics 21 (2003). That article went on to offer some valuable advice that prescribers can use when they are faced with a patient suffering from chronic pain yet also want to avoid, as much as possible, potential investigation or liability. Let's discuss some of those recommendations.

Refer the Patient to a Pain Clinic or Pain Specialist

Physicians of many specialties treat patients with chronic pain. However, as the management of chronic pain has become both better understood and more complicated, the population of physicians specializing in pain management has increased. At this point, one can likely find a pain management specialist in every city. Therefore, physicians who have less experience treating patients with chronic pain will usually have the option of referring their patients to a pain specialist for management. Of course, as with any referral, it should be clearly documented in the chart, and the patient should be provided pain treatment until the referral can take place.

The Non-Referring Physician

For those medical care providers who choose to treat patients for chronic pain, the following tips can help assure the prescriber that the treatment will withstand scrutiny by a court or medical board.

Documentation

The significance of documentation in defending an investigation into prescription practices cannot be overstated. Like all medical malpractice actions, a complaint challenging a physician's prescription of narcotics will be correlated with the physician's chart. If a physician is accused of over-prescribing and lacks proper documentation of his or her practices, he or she is much more likely to be investigated and disciplined. Id. at 36. As one respondent stated on behalf of a medical board: “The general policy that was made known to physicians is that we leave prescribing and pain management controls to their professional judgment, but if there is a complaint, they better have proper documentation, such as informed consent, history and physical, monitoring, etc.” Id. at 26.

A defensible chart will include a patient's medical history and evidence of a thorough physical establishing the need for pain medication; a patient assessment and pain diagnosis; a plan of care, regular follow-up and monitoring of the condition and medication; informed consent from the patient; and proper referrals where necessary. 31 J.L. Med. & Ethics at 36. Furthermore, it is in the physician's best interest to maintain actual copies of the prescriptions written for narcotics. Not only does this provide further documentation of the physician's actions, but it also provides evidence of a patient's misuse of the narcotics should the patient be copying, forging or altering prescriptions for narcotics.

State Rules and Guidelines

Many states have “intractable pain statutes” setting forth guidelines for treating patients through the use of controlled substances. 31 J.L. Med. & Ethics at 21. Thus, any physician who is providing treatment for and/or management of any patient's chronic pain should be intimately familiar with any guidelines established by his or her state medical board.

Thirty-two of the 38 boards responding to the survey that formed the basis for the 2003 University of Maryland study had at least some form of guideline, statute, regulation or policy relating to pain management. The survey of state boards showed repeatedly that each board referenced its guidelines when determining whether to investigate a complaint, whether a physician has acted inappropriately and whether and how to discipline. 31 J.L. Med. & Ethics at 26, 29, 31, 36, 37. The more the physician has complied with these guidelines, the less likely a state board is to pursue the investigation.

Further, the American Society of Law, Medicine and Ethics and Federation of State Medical Boards jointly developed Model Guidelines for the Use of Controlled Substances for the Treatment of Pain in 1998. Many state boards have adopted policies consistent with these Model Guidelines. Id. at 23, 36. For physicians practicing in states that do not have guidelines, the Model Guidelines may be helpful in establishing practices for treating chronic pain patients with narcotics that will withstand scrutiny from a court or medical board.

Standard of Care

Again, as with traditional medical malpractice claims, the standard of care will determine liability and will also affect a medical board's determinations regarding licensure. When there is no pertinent board pain management policy or guideline, the various state boards will generally base decisions on whether a physician's prescribing habits followed the standard of care. Interestingly, however, medical boards are generally likely to find that more than a standard of care violation is required to discipline a physician for inadequate treatment of pain. Id. at 31.

Another important point to note is that, when medical boards do look into whether the physician was prescribing narcotics in an amount and frequency that was below the standard of care, they generally try to compare the physician in question with a physician of the same specialty. This can cut both for and against a physician being investigated, depending on their specialty. For example, one respondent before one board stated that “[P]ain management people will write ten times the amount of opioids as other [physicians]. But if a physician's billing as an internist and prescribing the same as a pain management person, we're going to go find out why.” Id. at 27. At the same time, pain management physicians will likely be held to a higher standard in terms of the sophistication of the treatment and documentation of the treatment because they are, after all, specialists in pain management.

Education

Many state boards actually provide education, and certainly private CME courses are available, dealing with the treatment of chronic pain. Before a physician begins accepting and treating chronic pain patients, it is advisable to take such a course (or courses). Physicians are advised to check relevant newsletters, other publications or Web sites for the availability of education or articles regarding pain management. Such courses will not only provide the physician with the latest information on proper management of chronic-pain patients, but will also show medical boards and courts that the physician who took the course had some level of honest commitment to properly treating patients with chronic pain.

Putting It in Practice

The importance of all of the above points was well illustrated in a case out of Ohio in 2002. Conrad-Hutsell v. Colturi, 2002 WL 1290844 (Ohio App. 6 Dist. 2002). In that case, a patient sued her doctor, claiming that between November 1994 and August 1995, the doctor negligently prescribed dangerous and addictive narcotic drugs (Percocet and Tylenol #3), and failed to recognize her addiction to those drugs. The trial court granted a directed verdict to the doctor; however, the appellate court reversed and remanded.

The appellate court began its analysis by outlining the rules regarding written prescriptions for controlled substances that had been promulgated by the Ohio state medical board. Based on those rules, the court found that the doctor had a duty to follow those procedures when prescribing a controlled substance. The appellate court also specifically pointed out that the doctor never sought a complete copy of the patient's prior medical records and never referred the patient to a pain management clinic, even though he suspected overuse and possibly abuse of the narcotics. Finally, the court went on to say that even if a patient exceeds a physician's instructions on the amount of narcotics to use, the physician still has a duty to monitor the patient for signs of abuse and refer the patient for treatment accordingly.

In the category of board actions, as opposed to lawsuits, one needs to look no further than a case out of Louisiana to appreciate the potential pitfalls of the failure to follow medical board guidelines when prescribing narcotics. In Armstrong v. Louisiana State Board of Medical Examiners , 868 So.2d 830, 2003-1241 (La.App. 4 Cir. 2/18/04), a physician appealed the state board's decision to suspend his license to practice medicine for two years based on violations of the board's “Pain Rules.” The physician appealed, but the board's decision was affirmed.

The physician in Armstrong considered himself a pain-management specialist and was investigated for his prescription of various controlled substances and other medications to 11 different patients for their non-cancer-related chronic or intractable pain. The board found that the doctor violated the Pain Rules for these 11 patients by: 1) failing to perform or record in the patients' charts a thorough evaluation of each patient prior to or at any time during treatment; 2) failing to establish or fully document individualized treatment plans; 3) failing to see each patient at appropriate, regular and frequent intervals; 4) failing to document the medical necessity for the use of more than one type of schedule of controlled substance; 5) failing to document accurate and complete records of history, physical, and other examinations and evaluations; and 6) failing to document the date, quantity, dosage, route, frequency of administration, number of refills, and frequency of visits to obtain refills. These are all common pitfalls for physicians who practice in the area of pain management, particularly those who practice pain management within a more general internal medicine practice. The case serves as a lesson for prescribers: Follow board guidelines as much as possible

Conclusion

Medical care providers generally try to do their best, but bad outcomes can still happen. Careful monitoring, documentation and referral, when necessary, will go a long way in supporting a physician's position that he or she appropriately prescribed narcotic medications for patients with chronic pain when called to do so before a court or medical board.

Amy J. Kolczak, a member of this newsletter's Board of Editors, is a partner in Owen, Gleaton, Egan,Jones & Sweeney, LLP in Atlanta, where she has a general civil litigation defense practice including the defense of medical malpractice cases. Melissa P. Reading is an associate with the firm, where she practices in the medical malpractice and products liability groups.