Protect yourself from a medication error lawsuit

By Kathleen O’Brien, for MDLinx
Published January 7, 2019

Key Takeaways

When it comes to prescriptions, physicians today could be forgiven for feeling they’re damned if they do, damned if they don’t. Prescribe pain medications too readily, and you’re seen as an accomplice in opioid addiction. But dismiss a patient’s pain and you’ve failed at your job.

Pick a simple antibiotic, and it could be the wrong one. Yet prescribe a broad-based one and you may be contributing to the growing resistance to antibiotics.

And no matter your choice, you could still land in a malpractice suit.

The U.S. Food and Drug Administration estimates as many as 1.3 million patients are injured each year as a result of preventable medication errors. The agency receives more than 100,000 complaints annually of suspected medication errors.

A 2006 look at medication mistakes at a U.S. pediatric facility revealed 30% were prescribing errors, 24% were dispensing errors, 41% were administration errors, while 6% involved medication administration records. Furthermore, a 2008 study of family practices showed 70% of errors were related to prescribing, not administration.

Physicians can incorporate several basic steps in their prescribing routines to protect themselves against such suits, said attorney J. Richard Moore, JD, chair of the Medical Liability and Health Care Law committee for the Defense Research Institute, Chicago, IL.

The two types of medications that trigger lawsuits most frequently are painkillers and antibiotics, said Moore, who specializes in medical malpractice at his Indianapolis practice.

He recommends these basic protocols to limit liability:

Be rigorous in ascertaining if a patient is acquiring medications elsewhere. Podiatrists, oral surgeons, and other specialists can prescribe painkillers, and savvy addicts often get their hands on scripts from multiple sources.

So check your state’s online database that tracks all controlled substance prescriptions, and earlier rather than later in treatment, Moore advised. “Oftentimes, a physician will only search it after a notice from Medicare and Medicaid that they’re considered over-prescribers,” he said.

Avoid renewing a pain medication over the phone, and especially without any record of a treatment plan. Patients should not feel entitled to another 90-day renewal without an office visit.

“I appreciate clients who say, ‘I try to avoid keeping my patients on pain medication,’” Moore said. One policy he finds effective is for a physician to refer a patient to a pain specialist if they’ve been on painkillers for 90 days without improvement.

Document, document, document. One common misstep is for a physician to prescribe a narrow-spectrum antibiotic that would seem adequate to tackle the problem at hand—a case of bacterial pneumonia, for example. Often that decision is made from practical concerns: Lab work takes several days to get results, and doctors are wary about their role in driving antibiotic resistance.

“Two or three days pass, and by this time, the infection has spread,” Moore said. “In retrospect, they should have ordered a broad-spectrum antibiotic. We see that kind of claim all the time.”

While that initial judgement may have been logical, what makes a defense attorney’s heart sink is the lack of documentation.

“The physicians that are in that position, they almost always say, ‘I gave this antibiotic instead of the broader one because the patient just didn’t look that sick.’ I’ve heard that so many times,” Moore said.

While that kind of gut assessment has its place, it needs to be scrupulously documented. “Articulate your decision-making process,” he advises physicians. “It would serve them well in defending a claim down the road if they were more precise in their documentation.”

That means noting a patient’s energy level along with vital signs. Take vital signs multiple times and note if they’re stable. Note any lack of a fever or lack of shortness of breath. “The more specificity the better,” he advised. “I really want to see that in dictation and notes.”

As a last resort, dismiss patients who are evasive about their other medications or who won’t authorize checking with their other doctors. “You have an obligation to treat a patient who’s in front of you if they’re your patient, but you don’t if they are not in immediate danger,” Moore said. “Nobody wants to be an enabler for an addict.”

Finally, stay up-to-date with the rapidly changing pharmaceutical landscape. The latest tweak in a medication could mean it should be prescribed slightly differently than it was just a year or two ago. “They’re newer, better, stronger, faster,” Moore said of the latest medications. They’ve changed—and so should a physician’s approach to prescribing them.

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