What Are the Legal Risks of Declining to Provide Narcotic Pain Medication?

David B. Brushwood, RPh, JD

Disclosures

January 29, 2009

Question
Are there any laws to safeguard physicians, when they are reported or complained about, to the medical board, or hospital administration, for not giving opiates to patients?

As you know, healthcare industry is also in a "customer care" mentality and unmet patient or drug abuser demands can become a problem when they are reported as "undertreatment of pain" by the frequent ED visitors.

Response from David Brushwood, RPh, JD
Professor, University of Florida College of Pharmacy, Gainesville

Although the undertreatment (or nontreatment) of pain is a significant public health concern, there have been surprisingly few actions by licensing agencies against healthcare providers for failing to prescribe/dispense/administer necessary opioid analgesics to patients with chronic pain. In fact, the number of such actions that have been reported in the literature can be counted on 1 hand, and those few cases were based on extraordinary circumstances of egregious misconduct. Current federal law requires that a controlled substance prescription be issued only for a "legitimate medical purpose" and in the "usual course of professional practice." These requirements provide effective cover for healthcare providers who fail to issue or honor controlled substance prescriptions when a patient's need is in any way questionable. Many state laws have incorporated aspects of the Federation of State Medical Boards Model Policy for the Use of Controlled Substances in the Treatment of Pain, and the requirements of these rules provide additional support for any practitioner who is reluctant to provide controlled substances to a person whose need seems to be legitimate but who also is engaging in aberrant behaviors. So the defense of allegations of the undertreatment of pain is solidly based in current laws that are designed to prevent controlled substance diversion.

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