Legal Pearls: Patient Referral Fails to Mention Vital Information
Mrs P, 41, who had a past medical history of chronic pain related to chronic sinusitis requiring multiple sinus surgeries, as well as depression, anxiety, panic attacks, and insomnia, was referred to Dr F’s pain management clinic.
Both referring physicians had received letters from Mrs P’s insurance provider warning them about the patient’s prescription habits and her potential opioid and methadone abuse. Neither of the referring physicians shared the letter with Dr F.
Dr F prescribed methadone to the patient for the next 28 days. As part of the protocol, Dr F had the patient read and sign a regimen compliance agreement that clearly stated that Mrs P was agreeing to use only the pain medication prescribed by Dr F.
Two weeks later, the patient was found dead at home by her husband. The cause of death, according to the results of an autopsy, was methadone toxicity.
Was Dr F negligent?
(Discussion on next page)
Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.
This month’s case deals with a very hot topic—pain management. You can’t open a paper or turn on the news without hearing about overdoses and the abuse of opioids juxtaposed with stories of legitimate patients who are having trouble getting their necessary pain medications, or physicians who are forced into the uncomfortable position of trying to determine whether a patient is legitimately seeking pain relief or just seeking drugs. In this month’s case, a pain patient was referred to a pain management specialist, but the referring physicians did not convey some vital information that was necessary for the pain specialist to know in order to make the right decision.
Clinical Scenario
Over her 2-decade career, Dr F, 50, a physician specializing in pain management, had worked in many different practice settings. For the past few years she had been working in a pain management clinic where all of her patients came via referral from other clinicians. The physician enjoyed her work and was highly regarded as a pain management specialist.
One patient who was referred to Dr F was Mrs P, 41, who had a past medical history of chronic pain related to chronic sinusitis requiring multiple sinus surgeries, as well as depression, anxiety, panic attacks, and insomnia. When Mrs P’s prior pain management physician retired, her pain was managed by her infectious disease and ear, nose, and throat (ENT) physicians until they referred her to Dr F.
Unfortunately, the 2 referring physicians did not give Dr F the full information about the patient. Both the ENT and infectious disease physicians had received letters from Mrs P’s insurance provider warning them about the patient’s prescription habits and her potential opioid and methadone abuse. Neither of the referring physicians shared the letter with Dr F, or alerted her that the patient had been obtaining duplicate pain medication prescriptions from multiple medical providers—a situation referred to as “doctor shopping.” Thus, when Dr F scheduled a consultation with the patient, she did not have the complete facts, and although she had requested the patient’s medical records from the referring physicians, those records did not arrive by the date of the patient’s appointment.
At Mrs P’s appointment, the physician questioned her about her past and current medical history, and obtained a list of the patient’s prescriptions. Mrs P was currently taking methadone, so a urinalysis was performed to check her methadone level. Dr F noted in the patient’s file that the results of the urinalysis indicated that the methadone level was appropriate for Mrs P’s height and weight and reflected that the dose of methadone was within the normal range.
The only other information that Dr F had was a copy of drug screen performed on the patient 3 weeks prior to this appointment. This had been sent with the referral. Nothing in the drug screen, the urinalysis, or the conversation with the patient raised any red flags for Dr F about the patient. Based on this, Dr F prescribed methadone to the patient for the next 28 days. As part of her protocol, Dr F had the patient read and sign a regimen compliance agreement that clearly stated (and the physician verbally reiterated) that Mrs P was agreeing to use only the pain medication prescribed by Dr F. The patient agreed, thanked the physician, and left.
Two weeks later, the patient was found dead at home by her husband. The cause of death, according to the results of an autopsy, was methadone toxicity.
The patient’s grieving husband hired a plaintiff’s attorney who filed a wrongful death lawsuit naming multiple defendants, including Dr F, the 2 referring physicians, and several pharmacies. Dr F consulted with a defense attorney who read her notes and the patient’s file and told Dr F that based on what he’d read, he did not think she had done anything wrong. The attorney explained that the next step was discovery, which was the process by which each side in a case gets medical experts to examine all the records and take depositions of those people who might testify at trial.
During this discovery process, the lawyer found out about the letter from the insurance company to the other doctors, as well as the fact that the other clinicians had been aware that the patient had been using duplicate pain medication prescriptions, but they never conveyed this information to Dr F when they referred the patient.
Based on this information, and before the trial began, Dr F’s attorney made a motion to dismiss the case against her, since no evidence existed to show that she had been negligent in treating the patient. The judge agreed and dismissed the case again Dr F. The case against the other defendants is ongoing.
What’s the “Take-Home”?
During the discovery period, several experts pointed to Dr F’s careful and detailed notes, as well as the fact that she had discussed the agreement with the patient and had given her with a written copy, as evidence that the physician was providing the standard of care owed to the patient. It was clear from the evidence gathered during discovery that Dr F had not been informed of the letter from the insurance company or that the patient had shown drug-seeking behavior.
The fault clearly laid in the hands of the referring physicians, who referred the patient to Dr F without conveying information that was vital for her to know and that would undoubtedly have changed how she treated the patient.
While Dr F could not protect herself from being part of the lawsuit, she did protect herself from liability by following protocol, taking detailed notes, documenting laboratory test results, and explaining her conclusions. The referring physicians’ failure to communicate the full facts of the case ultimately deprived Dr F of making the best choice for her patient.
Bottom Line—Whether you are making the referral or receiving it, knowledge is power and communication is critical.