Malpractice Claims: The Risk of Overprescribing Opiates

There are four D's that make an opioid malpractice claim. Here what they are, why they're important, and how doctors can protect themselves.

The opioid crisis in America is real and very problematic. In the 1990s, doctors began prescribing more opiates because the pharmaceutical companies promised them and the entire medical community that opioids were safe. What we have all learned over the past three decades is that this is far from the truth.

It went even further than that, though. The medical community started encouraging pain to be seen as a 5th vital sign. Doctors were encouraged to give pain the same amount of attention as blood pressure, heart rate, respiratory rate, and temperature. If a patient's pain score on a scale from one to ten was too high, doctors and nurses were reprimanded.

Opiates serve a very specific purpose and are critical for people who need them, but doctors need to be cautious about how much they are prescribing. Opiate overdoses and deaths are occurring at alarming rates, and in response, there has been a big move away from doctors prescribing them. There has also been a significant uptick in malpractice claims filed against doctors for their role in this crisis.

Opioids are the most significant contributor to prescription-related malpractice claims. Doctors want to avoid these lawsuits at all costs, so they must know what a patient would have to prove in order to be successful with a malpractice claim.

The 4 Ds in a Malpractice Claim

1. Duty

In order to be held responsible in a medical malpractice claim, the first thing that has to be shown is that the doctor actually owed a legal duty of care to the patient. To establish a duty of care, there must be evidence that a voluntary doctor-patient relationship existed at the time of the alleged malpractice incident. There are several ways to show that there was, in fact, a doctor-patient relationship. Did the patient voluntarily see the doctor? Did the patient sign documents accepting treatment from the doctor? Did the patient submit to examinations by the doctor? Did the patient visit the doctor multiple times for ongoing treatment? If the answer is yes to these questions, there is almost certainly a duty of care owed to the patient, and this prong of the malpractice claim would be satisfied.

2. Dereliction of Duty

The second part of a malpractice claim is the dereliction of duty. To succeed in a medical malpractice suit, the patient would also have to show that the doctor did not provide them with the treatment and care that is expected of a reasonably competent doctor under the same circumstances. Doctors should always be documenting their course of treatment. If a patient needs more opioids due to increased pain, this must be documented. It's also important to document what other treatment options the doctor has implemented before deciding to prescribe opiates.

3. Direct Causation

For a doctor to be held liable in a malpractice claim, the patient must show that the doctor's behavior and actions directly caused injury to the patient. It must be shown that the doctor did not perform their proper and expected duties. For example, did the doctor's misdiagnosis cause a patient further harm in some way? In order to protect themselves, doctors should always document that he/she checked for addiction or opioid use disorder (OUD). They should also do risk stratification occasionally to stay informed about a patient's risk of addiction or dependence.  

4. Damages

One of the most important things a patient has to prove is that they suffered damages. Did the patient actually suffer a loss or a harm? If a doctor does not act in accordance with industry standards, but the patient suffers no damages, they would probably not prevail in a malpractice suit. Some of these industry standards include speaking to the patient about the safety of medications, how to store the medications, and having a pain contract signed by the patient.

How Can Doctors Avoid Medical Malpractice Claims?

Overprescribing opiates is a significant issue. It is also a problem if doctors don't prescribe opiates to patients who really need them because the doctor is afraid of legal ramifications. There are steps that physicians can take in order to prescribe opiates appropriately while protecting themselves.

1. Meet Current Standards of Medical Care  

One of the best ways doctors can protect themselves is to ensure that their treatment meets current standards of medical care. Doctors must follow recommended guidelines from professional organizations, such as the Food and Drug Administration (FDA) and The Centers for Disease Control and Prevention (CDC). The current standard of medical care refers to the level and type of care that a reasonably competent physician would provide under the same circumstances. If you are a doctor and you deviate from those standards for some reason, you are opening yourself up to very costly malpractice claims.

2. Maintain Accurate and Thorough Documentation

Doctors should always keep thorough and accurate documentation about patients and their treatment. If you are unfortunate enough to be part of a medical malpractice suit, you can assume that people will not believe it happened if you didn't write it down. Documentation can include your notes, a patient's medical records, and also notes from a nurse or physician's assistant who also saw the patient. Doctors should always make sure that their notes are legible, thorough, and dated. If it is not dated and appropriately documented, there is no way for anyone to know what really happened.

3. Speak With Your Patient

This one might sound obvious, but it is crucial. Speak with your patients! There must be informed consent, meaning that the patient must understand what you are doing and what the treatment plan is. If the patient has to follow up with you or another medical professional, make sure they understand this. Talk to your patient about the risks of any treatment they might be receiving. If they do not know the risks, they cannot fully consent to that specific treatment, which leaves you vulnerable to a medical malpractice claim.

4. Look For Signs of Addiction and Abuse

This one is huge. As the prescribing doctor, you should keep an eye on your patient. Every single time you see them, you should be looking for signs of addiction or abuse of opiates or other substances. There are many signs that are consistent with addiction and abuse. The following list is not exhaustive, but it is certainly an excellent place to start.

· Does the patient have needle or track marks?

· Is the patient slurring his or her speech?

· Is the patient overly disruptive and rowdy?

· Does the patient frequently ask for refills of controlled substances?

· Does the patient demand more opioids?

· Is the patient adamant and specific about a particular drug choice?

· Does the patient claim to be allergic to several groups of medications except for opioids?

· Does the patient frequently lose his or her medications or report stolen medications?

If you notice that your patient is exhibiting these behaviors, you should speak with them about it immediately. Try to discern if they need addiction treatment. This can be a difficult conversation to have, but it is necessary. Not only is it vital as a protective measure for you and your practice, but it is also really important for the patient. As we all know, opioids are incredibly addictive and dangerous, and it does not take long for a person to become dependent on them.

Another good way to make sure your patients are not abusing opiates or other medications is to perform drug screens at their visits. Make sure you have a complete patient history and know what other medications your patient is prescribed. By performing drug screens, you can determine if the patient is taking drugs they are not supposed to take. If this is the case, it is likely that they may be abusing the opiates you are prescribing as well. Random drug screens are one of the best ways to monitor a patient's possible drug issues.

Your patient will need to agree to these screens, so you should have an open and honest conversation with them about the reasons for wanting to do it. The opioid crisis is genuinely frightening, and we all have to try to do something to mitigate the risks of prescribing opioids.

5. Prescribe Opiates Only When Necessary

If a doctor can prescribe a safer and less addictive medication than opiates, they should start with that. After seeing how opioids have ravaged The United States, prescribing opiates should not be a doctor's first thought or first option. There are many non-narcotic painkillers and non-surgical interventions that can be implemented first.

6. Foster An Open Environment

All doctors are busy, and their days are usually packed with appointments, but that is not an excuse to have poor bedside manner. If you expect your patients to be honest with you about their drug use, you need to make sure they are comfortable talking to you and believe that you genuinely care about what is best for them. Take the extra 10 minutes to get to know them, especially because you know that the doctor-patient relationship can last for a long time. Ask about their history. Find out if they have ever been in drug treatment before or if they have ever struggled with addiction. These things are important. Someone with a history of drug abuse or addiction may be better off trying a non-narcotic medication. If you do not take the time to get to know your patients, you will never be able to determine if this is the case.


As a doctor, you certainly never want to deny a patient painkillers if they need them, but you need to be careful and diligent. Following all of these steps is a great way to protect yourself from liability in the unfortunate case of a medical malpractice claim. The hope is that if doctors are more careful than they have been in the past, not only will they protect themselves, but they will protect their patients.

It's time to prescribe with confidence

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