3 liability safeguards for doctors who prescribe opioids

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Doctors who prescribe opioids should take steps to protect themselves from civil and criminal liability.

Given the country’s opioid epidemic, law enforcement agencies are aggressively going after medical professionals who illegally prescribe these highly addictive drugs.

“Physicians and other practitioners who prescribe controlled substances are participating in what is perhaps the most high-risk practice of medicine today,” write attorneys Brandon K. Essig and Jack Sharman, of the Alabama law firm Lightfoot, Franklin & White, in Medical Economics.

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The risks to doctors who prescribe opioids to treat patients in pain are compounded by the fact that federal and state regulations do not clearly define what is unlawful, according to the two attorneys. Here are three steps doctors can take to help protect themselves from criminal and civil liability:

  1. Be conservative when prescribing opioids. A large volume of prescriptions can be a red flag for Drug Enforcement Administration (DEA) investigators that a doctor is dispensing opioids without medical necessity or beyond what is medically required. Limit the dosage and pill quantity to the lowest amount possible to address a patient’s pain.
  2. Thoroughly document all treatment. Make records for patients who are prescribed opioids as precise as possible, documenting in detail the basis for each opioid prescription. Regulations require a physical exam of the patient before prescribing opioids.
  3. Continuously educate yourself and follow best practices. Screen patients for drug diversion by using prescription drug monitoring program databases. The DEA sees the failure to check those databases as a sign of possible illegal prescribing. Address any sign of diversion with a patient and document that action.

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Physicians can expect the scrutiny of opioid prescribing to continue. Fighting healthcare fraud is a priority for the Department of Justice under the leadership of Attorney General Jeff Sessions, with a major area for fraud prevention on opioid-related cases, Acting Assistant Attorney General Kenneth A. Blanco of the DOJ’s criminal division said at the American Bar Association's annual Institute on Health Care Fraud in May.