Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

If you suspect drug abuse

Q: When I suspect a patient may have a drug problem, I have my staff call local pharmacies to see if the patient has received the same or similar medications from multiple stores. On several occasions, I've confronted patients who had done so. One patient, a psychotherapist who'd been prescribed pain meds, was outraged and felt I had violated his privacy. What are the legal implications of attempting to gain information about a patient without his knowledge?

A: This is one of those situations where you're damned if you do, and damned if you don't. True, you could be sued for breaching confidentiality. But it would probably be worse to be sued for malpractice if the patient had an overdose that you could have prevented by monitoring him more closely. Case law doesn't offer much guidance; few cases have involved whether conversations between physicians and pharmacists breaches patient confidentiality.

Sharing information is usually good medical practice, and physicians and health care facilities could avoid many complications by coordinating their efforts. For example, a doctor may call a pharmacy to assure that no other meds the patient is on can interfere with the one he has prescribed.

On the other hand, the patient has a right to privacy. In most states, the patient must waive confidentiality in writing before the doctor or pharmacy can reveal information to third parties. If you confided your concerns about possible drug abuse, then you divulged potentially privileged information.

Prevailing practice, though, usually allows verbal communication, even when authorization would be required for written communication. To get records from physicians and hospitals who've treated the patient before, for instance, you need the patient's permission in writing. Yet doctors routinely call prior treating physicians to discuss patients' care without written consent. The perceived wisdom is that the patient implicitly waives the confidentiality privilege with regard to communication between you and other health care providers involved in his care. It's difficult for patients to prove damages in cases involving a breach of confidentiality. That's why the law is so sparse and the issues haven't been widely addressed.

Looking at the other side of the coin, drug-seeking behavior can lead to liability when filling prescriptions at several pharmacies results in an overdose, contraindicated drugs being taken together, or the exacerbation of side effects by high dosage levels. The patient who sues will claim that the doctor should have provided better information about the dangers of the prescribed medication, and should have monitored him more closely. He may even claim that the doctor should have called the pharmacy.

If you suspect drug abuse, talk with the patient. Consider referring him to a drug addiction or pain management center. Conduct a complete informed consent discussion about the risks of the drug and the dangers of overmedication.

Some pharmaceutical companies offer a "pain medication agreement," which you might consider adopting. The patient signs the document after the part that reads, "I agree to follow the regimen exactly as prescribed. I agree that Dr. Jones must be the only doctor prescribing pain medication for me and that I will use only one pharmacy to fill these prescriptions."

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;15:104.