Seven Steps to Reduce Legal Risk
To lessen the risk of a medical malpractice
lawsuit involving the prescription of opioids,
we encourage you to:
F Be proactive and aware of federal and state
prescribing and compliance requirements.
F Follow recommended therapeutic guidelines
in prescribing narcotics.
F Exercise due diligence as to the efficacy
and benefit of a medication before making
F Consider a pain management contract as
may be appropriate.
F Document the rationale for prescribing the
drug being ordered.
F Provide proper education and counseling to
F Carefully document in the medical record as
to what was done and why.
How Did We Get Here?
How do we solve the problem of physicians being
fearful of prescribing drugs to patients who may
need these drugs to survive or maintain quality
First, we must acknowledge the causes,
scope, and often conflicting interests involved
in this complex constellation. An appreciation
of the historical context in which the crisis has
developed, the shifting nature and extent of
the ongoing problems, and the often patchwork collection of responses created by federal
and state governments may help to promote
a focused dialogue leading to meaningful and
The American Civil War has often been identified as the 19th century impetus to opiate
addiction in the United States. Hundreds of thousands of seriously injured soldiers were treated
with morphine for unrelenting pain. Addiction was
not, thereafter, limited to the consequences of
battlefield service. The perils of morphine addiction, even from legitimate treatment modalities
by the healthcare community, continued to
evolve with virtually no effective resolution.
The federal government first attempted to
address the growing public concern over the
steadily increasing flow of “poisonous or adulterated” substances in interstate commerce,
including food, drugs, and medicine, by passing
the Pure Food and Drug Act of 1906.
Over the next six decades, Congress passed
hundreds of additional statutes, including
the Harrison Narcotics Tax Act of 1914, which
criminalized the use of cocaine and opioids for
nonmedical purposes. State legislatures also
enacted criminal laws further defining illicit drug
use, and they established significant penalties
for violations, especially for commercial traf-
ficking within their jurisdictions. But laws,
regardless of their scope or commendable intent,
inevitably lagged behind social, cultural, com-
mercial, and various other evolving trends.
In response to heightened public demand for
prescription opioids to address chronic and
unrelenting pain, a compassionate desire to
provide symptom relief, and a persistent lack
of education about or appreciation of the
physiologic components of addiction and abuse,
the rate of legitimate opioid manufacture and
prescriptions escalated without significant
abatement. Additionally, illegal drug smuggling,
notably of heroin and marijuana to satisfy a
growing market for recreational use, exploded
in the late 1960s, commensurate with American
military involvement in Southeast Asia and a rise
in sophisticated and well-funded illicit trafficking organizations in Mexico.
A Worst-Case Scenario
A federal court sentenced a Kansas doctor to life in prison for
prescribing opioids for chronic pain without medical necessity
in exchange for cash, leading to a patient’s addiction and ultimate overdose death.
The physician was also convicted of obstruction of justice and