How to Legally Break Up with Your Patient

Neda M. Ryan, Esq.
Clark Hill, PLC, Birmingham, MI

At some point toward the beginning of their careers, physicians are required to take the Hippocratic Oath in which the physician covenants to heal the sick or to prescribe measures for the good of the patient. Unfortunately, in an environment in which overdoses on prescription medication are quickly rising to the top of the list of causes of death, zealous adherence to this portion of the Oath could leave pain management physicians exposed to liability. Furthermore, blind adherence to the Oath is not a legal defense to injury or death associated with the misuse or diversion of prescriptions. Luckily, there are steps that pain management physicians can follow early on to promote a beneficial relationship for the patient and to minimize legal risk to the physician. Still, even when preventative steps do not produce the intended results, there are measures that can be taken to legally terminate the relationship with the patient.

Prescribing Controlled Substanances: Legitimate Medical Purpose

The laws and regulations surrounding prescribing include the Federal Controlled Substances Act, the Drug Enforcement Administration’s (DEA’s)regulations and guidance, and relevant state law and guidance from medical boards. The Supreme Court and the DEA have both made clear that controlled substances must be prescribed for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. It is clear that this standard is vague and, thus, a physician’s prescribing is analyzed on a case-by-case basis.

Warning Signs for Problematic Patients

The DEA has set forth a number of warning signs for problematic patients that include the following:

• Patients demanding to be seen immediately;
• Patients stating that they are visiting the area and are in need of a prescription to hold them over until they return to their local physicians;
• Patients feigning symptoms in an effort to obtain narcotics;
• A patient indicating that non-narcotic analgesics do not work for him or her;
• A patient requesting a particular narcotic drug;
• A patient complaining that a prescription has been lost or stolen and must be replaced;
• Patients requesting more refills than were originally prescribed;
• Patients using pressure tactics or threatening behavior to obtain prescriptions; and
• A patient showing visible signs of drug abuse (e.g., track marks, etc.).

The appearance of one or more warning signs is not dispositive of inappropriate use or diversion of prescriptions. As such, the pain management physician should take into account each individual patient’s condition and medical history prior to determining whether action must be taken.

Proactive Steps You Can Take Now

The DEA does not require that pain management physicians prevent all instances of diversion and abuse. It also does not require that all drug abusers be denied all drugs. Rather, law enforcement officials will look to the steps the pain management physicians took to meet his or her legal responsibilities to prevent diversion and abuse. The questions that will be considered include the following:

• Was there a legitimate medical purpose for the prescription?
• Was the pain management physician acting in the usual course of his or her professional practice?
• Has the pain management physician taken reasonable measures to prevent diversion (e.g., were the actions taken tailored to the specific patient, did the provider exercise the appropriate degree of medical supervision, etc.)?

The determination is extremely fact specific with special attention being given to those patients who are known drug abusers.

In addition to DEA regulations, there are many other steps pain management physicians may take to prevent abuse and diversion of the medications they are prescribing to their patients:

• Evaluate the Patient—Obtaining, evaluating and documenting a medical history and physical examination, indicating the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse.

• Develop a Treatment Plan—A written plan of the patient’s treatment should, in addition to setting forth the patient’s plan, state objectives that will be used to determine the success of the treatment. The plan should be fluid and flexible enough to evolve with the patient’s progress and needs.
• Obtain Informed Consent—The risks and benefits of the treatment should be explained to the patient. Sometimes, a signed form may be necessary to inform patients of certain prescriptions and to document that consent was obtained.

Execute a Treatment Agreement—If the patient is at high risk for medication abuse, the physician may consider using a Treatment Agreement that sets forth the obligations of the patient with respect to the medication as well as the consequences for failure to adhere to the agreement. Specifically, the Treatment Agreement could address the following: obtaining medications (or certain medications) from a single source, safeguarding the medications, the use of illegal substances, standards or requirements for refills, submission for drug testing, terminating the relationship for failure to comply and monitoring any state databases, as applicable.

• Periodically Review Treatment—The provider should periodically review the patient’s course of treatment and any new information about the etiology of the patient’s health and/or pain. As stated above, the treatment plan should be fluid enough to permit for changes arising out of any new information uncovered during a periodic review.
• Refer Patient to Another Provider—In some instances, patients must be referred to another provider or specialist for additional or continued treatment of the patient. Care should be taken to ensure at-risk patients are properly managed and cared for during the transition.
• Check State Prescription Monitoring Programs—Some states have prescription monitoring programs in which providers may access the database to see if their patients are obtaining certain medications from other sources. For state having such prescription monitoring programs, pain management physicians should confirm whether or not accessing the database is mandatory.
• Document in the Medical Record—As with all other facets of treating and managing a patient’s care, all of the steps the provider takes to protect against, and prevent misuse of, prescription medications should be documented in the patient’s medical record. This will serve as one of the most important defenses against allegations of the pain management physician’s failure to prevent diversion and abuse of prescription medications.

In addition to the steps noted above, it is important that all providers consult their own state’s laws and regulations with respect to prescribing, especially as they relate to prescriptions for controlled substances.

The Break-Up

Sometimes, pain management physicians will find that despite all of the preventative measures they took to prevent abuse or diversion, the patient still shows signs that he or she is diverting or abusing the medications prescribed to him or her. Some reasons for terminating the relationship include: (1) the patient fails to comply with a Treatment Agreement or other terms set forth by the physician, (2) the patient is unreasonably demanding, and (3) the patient threatens the provider or staff.

When the issue of breaking up with a patient arises, concerns regarding patient abandonment also arise. Abandonment is defined as the termination of a professional relationship between the physician and patient at an unreasonable time and without giving the patient a chance to find a replacement. Mere termination of the relationship does not amount to abandonment. Abandonment may arise when the relationship is terminated at a critical stage of the treatment, without good reason or sufficient notice and the patient was injured as a result.

To properly terminate the relationship, physicians including pain medicine specialists should take the following steps:

• Giving appropriate written notice;
• Giving a brief explanation of the reasons for the termination of the relationship;
• Agreeing to continue to provide treatment and access to services for a reasonable period of time (e.g., 30 days) to allow the patient to secure care from another person;
• Providing resources and/or recommendations to help a patient locate another physician of like specialty; and
• Offering to transfer the patient’s records to a designated person.

Of course, it is important to recognize that some states may have laws that specifically define abandonment and set forth a process that must be followed to ensure terminated patients are not abandoned.

According to the DEA, in 2006, more than 6 million Americans were abusing prescription drugs—exceeding the number of Americans abusing cocaine, heroin, hallucinogens and inhalants, combined. Thus it is with great fervor that both State and Federal agencies have turned their attention to preventing diversion and abuse of controlled substances. That is why pain management physicians must be aware of preventative steps they can take to prevent abuse and diversion of prescription drugs as well as know their legal rights when treating a patient who has turned south, leaving the physician with little choice but to break up.

Neda M. Ryan, Esq. is an associate with Clark Hill, PLC in the firm’s Birmingham, MI office. Ms. Ryan practices in all areas of health care law, assisting clients with transactional and corporate matters; representing providers and suppliers in health care litigation matters; providing counsel regarding compliance and reimbursement matters; and representing providers and suppliers in health care litigation matters; providing counsel  regarding compliance and reimbursement matters; and representing providers and suppliers in third party payer audit appeals. She can be reached at (248) 998-5884 or at nryan@clarkhill.com