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Physician Intentionally Circumvents Prescribing Laws
ISSUE: Can intentional conduct intended to circumvent controlled substance statutes remove the protection of statutory immunities?
A 34-year-old man began using oral narcotic medications prescribed for headaches. His drug use comprised both prescribed and illegally obtained drugs and continued for three years. It continued when he underwent a lumbar laminectomy, but he went through a hospital-based detoxification program one year later. Six years later, he began receiving treatment from an internist in a group practice and was prescribed narcotic analgesics for recurrent back pain. Over the next four years, the physician repeatedly provided the patient with post-dated and undated prescriptions for narcotic drugs, as well as for a muscle relaxant.
Pursuant to an agreement between the physician and the patient, the physician wrote prescriptions for those drugs for the patient for months at a time. The physician also instructed the patient not to present an undated or post-dated prescription to any pharmacy. One year later, the physician became an employee of a state university, where he continued to treat and prescribe narcotic medications because the patient was "pain medication-dependent," and he provided prescriptions that bore dates three or four days apart, each for quantities of 80 or 120 pills, to be filled at several different pharmacies, per the physician's instructions. During one seven-month time period, a total of 3,760 units of narcotic analgesics were prescribed.
After suffering the consequences of his addiction, the patient sued the physician, alleging that the physician committed professional negligence by unlawfully providing him with excessive prescriptions for narcotic drugs. The patient argued that by circumventing prescribing statutes, the physician engaged in willful misconduct, and that his liability for care given before his state employment was not limited by existing caps on malpractice liability. The patient further argued the physician did not enjoy the state employee immunity for care he provided after his employment by the university.
The physician's response included defenses under the state's tort claims act for the period when he was employed by the state university, arguing that, as a state employee, he could not be sued individually. He further argued that his actions, even if possibly negligent, were not sufficiently outside medical practice to remove the protections of a state cap on malpractice liability. State law provided that, "Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." Further, the state cap on malpractice liability did not apply if gross negligence or willful misconduct was demonstrated.
A 34-year-old man began using oral narcotic medications prescribed for headaches. His drug use comprised both prescribed and illegally obtained drugs and continued for three years. It continued when he underwent a lumbar laminectomy, but he went through a hospital-based detoxification program one year later. Six years later, he began receiving treatment from an internist in a group practice and was prescribed narcotic analgesics for recurrent back pain. Over the next four years, the physician repeatedly provided the patient with post-dated and undated prescriptions for narcotic drugs, as well as for a muscle relaxant.
Pursuant to an agreement between the physician and the patient, the physician wrote prescriptions for those drugs for the patient for months at a time. The physician also instructed the patient not to present an undated or post-dated prescription to any pharmacy. One year later, the physician became an employee of a state university, where he continued to treat and prescribe narcotic medications because the patient was "pain medication-dependent," and he provided prescriptions that bore dates three or four days apart, each for quantities of 80 or 120 pills, to be filled at several different pharmacies, per the physician's instructions. During one seven-month time period, a total of 3,760 units of narcotic analgesics were prescribed.
After suffering the consequences of his addiction, the patient sued the physician, alleging that the physician committed professional negligence by unlawfully providing him with excessive prescriptions for narcotic drugs. The patient argued that by circumventing prescribing statutes, the physician engaged in willful misconduct, and that his liability for care given before his state employment was not limited by existing caps on malpractice liability. The patient further argued the physician did not enjoy the state employee immunity for care he provided after his employment by the university.
The physician's response included defenses under the state's tort claims act for the period when he was employed by the state university, arguing that, as a state employee, he could not be sued individually. He further argued that his actions, even if possibly negligent, were not sufficiently outside medical practice to remove the protections of a state cap on malpractice liability. State law provided that, "Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct." Further, the state cap on malpractice liability did not apply if gross negligence or willful misconduct was demonstrated.
From your analysis of the case, assess whether the following statesments are true or false:
| * | Statutory immunity for a state-employed physician will protect a physician from personal liability, even if the medical conduct was illegal or a willful violation of applicable statutes. | True or False |
| * | Assisting a patient in obtaining excessive dose of controlled substances can be seen as willful misconduct. | True or False |
| * | A patient who obtains excessive doses of controlled substances with the aid of a physician cannot then sue the physician for negligence that resulted in the patient's addiction. | True or False |
Expand to check answers
GENERAL PRINCIPLE: Intentional circumvention of controlled substance statutes may void statutory limitations on physician negligence liability.
APPLIED PRINCIPLE: Over-prescription of controlled substances can result in criminal prosecution or license discipline, but even when no such actions result, a patient may bring a civil lawsuit alleging negligence. If the physician’s conduct is seen to be intentionally in violation of prescribing procedures, statutory protections on liability such as personal immunity as a government employee, or state-imposed caps on liability may be voided.
Attempting to circumvent prescribing procedures by knowingly providing undated or post-dated prescriptions and providing specific instructions about using different pharmacies to avoid detection would clearly be in violation of proper procedure. It would also be clearly intentional and, therefore, willful misconduct. Because of his conduct, statutory protections could be voided and the physician could be personally liable, even when employed by the state university, and for amounts in excess of any state cap on malpractice liability.
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APPLIED PRINCIPLE: Over-prescription of controlled substances can result in criminal prosecution or license discipline, but even when no such actions result, a patient may bring a civil lawsuit alleging negligence. If the physician’s conduct is seen to be intentionally in violation of prescribing procedures, statutory protections on liability such as personal immunity as a government employee, or state-imposed caps on liability may be voided.
Attempting to circumvent prescribing procedures by knowingly providing undated or post-dated prescriptions and providing specific instructions about using different pharmacies to avoid detection would clearly be in violation of proper procedure. It would also be clearly intentional and, therefore, willful misconduct. Because of his conduct, statutory protections could be voided and the physician could be personally liable, even when employed by the state university, and for amounts in excess of any state cap on malpractice liability.
| * | Statutory immunity for a state-employed physician will protect a physician from personal liability, even if the medical conduct was illegal or a willful violation of applicable statutes. | False |
| * | Assisting a patient in obtaining excessive dose of controlled substances can be seen as willful misconduct. | True |
| * | A patient who obtains excessive doses of controlled substances with the aid of a physician cannot then sue the physician for negligence that resulted in the patient’s addiction. | False |