Physician Defeats Liability for Prescribing Without In-person Consultation
By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2014, a middle-aged man contacted a plastic surgeon with whom he had an existing friendship. The patient indicated he suffered from chronic pain in his back, shoulders, and other areas, first informally and then in a phone consultation with the plastic surgeon, who prescribed medication to treat the pain. At no point did the patient meet with the plastic surgeon in person to discuss the treatment or symptoms.
On a subsequent trip, the patient consumed many alcoholic beverages, which interacted with the medication. He was found dead the following morning. His daughter brought suit against the plastic surgeon and his employer, alleging that the physician engaged in malpractice by failing to meet with the man in person. An autopsy report revealed that the level of medication was therapeutic and that the cause of death was cardiac in nature. After a six-day trial, the jury found for the defendant, in part because the physician testified that he cautioned the patient against drinking while on the medication.
Background: On Sept. 29, 2014, a 54-year-old self-employed contractor contacted a plastic surgeon, with whom he had been friends for more than 20 years, regarding persistent pain in his neck, back, shoulder, and upper arm. The contractor had multiple phone conversations with the physician the week prior, informing the physician of his symptoms and claiming that the pain would not subside with over-the-counter medication and rest.
During one conversation, the physician prescribed a powerful narcotic, Vicoprofen (hydrocodone and ibuprofen), and a muscle relaxant, Soma. At no point did the patient come in to the physician’s office for an examination. A few days following the phone call, the patient went on a trip and drank a substantial amount of alcohol before he went to sleep. The patient’s friends discovered him dead the following morning.
A medical examiner performed an autopsy, which revealed that the contractor had an enlarged heart and coronary artery disease. Toxicology tests revealed a blood alcohol content of .13 and therapeutic levels of the two medications prescribed by the physician. The autopsy report concluded that the primary cause of death was cardiac in nature, but with contribution from the combination of drug and alcohol toxicity.
The patient’s daughter sued the physician and the plastic surgery center that employed him, alleging they were negligent in the treatment of her father and in issuing the prescriptions. She further claimed that this negligence amounted to medical malpractice and caused the patient’s wrongful death. The surgery center was voluntarily dismissed before trial, and the case proceeded to trial against the physician only.
At trial, the plaintiff’s pathology expert (and the same physician who performed the autopsy and issued the autopsy report) testified about his findings and the basis for his conclusions regarding the cause of death. He further testified about how he determined that the combination of drug and alcohol toxicity contributed to the contractor’s death. The plaintiff’s counsel argued that, while it was true that the patient was contributorily negligent for drinking while on pain medication, the physician was negligent for prescribing the medicine in the absence of an actual physical exam, and thus liable.
The plaintiff’s internal medicine expert testified that California law precludes a physician from issuing a prescription for medication, especially narcotics, to an individual without a face-to-face patient encounter and a good faith physical examination. Thus, the expert opined, it was below the standard of care to prescribe Vicoprofen and Soma without first performing an examination.
In response, the defense’s plastic surgery expert stated that the physician gathered all pertinent medical information during the phone conversations to determine that the two prescriptions were justified. The expert testified that the conversations did, in fact, satisfy the patient examination required by California law. Moreover, the expert pointed out that even in retrospect, there were no medical conditions present that would have made the prescriptions contraindicated even if a face-to-face examination had taken place.
The defense’s pathology and cardiac pharmacology experts both testified that the cardiac event was triggered by the binge consumption of alcohol and explained that there was no drug “toxicity” in this case, as all medications were at therapeutic levels and did not trigger any type of cardiac event. The physician testified that he advised the patient not to take the medications with alcohol. Defense counsel argued that the man caused his own death by consuming alcohol while taking the prescriptions.
After a six-day trial, the jury found in favor of the physician.
What this means to you: Notwithstanding the defense verdict, this case still illustrates the importance of implementing procedures to prevent unlawful medical practices. Hospitals need robust compliance teams that remain abreast of changing case law and statutory law, as well as changes to the applicable standards of care. These compliance teams also must implement an enforcement program that can develop a complaint procedure.
Hospitals are required by licensing and accreditation agencies to maintain performance improvement and risk management programs. These programs include peer review activities that guide physician practices and deal with divergent behaviors under state and federal guidelines that also include strict protections to preserve the confidentiality of any disciplinary proceedings. Enforcement programs should set up procedures that govern the methods by which complaints are received, reviewed, investigated, evaluated, and resolved.
Hospitals also should implement mandatory reporting procedures for instances such as the death of a patient, the conviction of an employee on a felony charge, the observation of unlawful activity during the course of duty, and any activity that may reasonably be the subject of a malpractice proceeding. For best practices, and contemplating that medical malpractice litigation will eventually occur (even if meritless), hospitals also should strongly consider working closely with attorneys to consider the rules of evidence and facilitate insulation from intrusive discovery requests to the extent possible.
Another notable lesson from this case is the potential danger of a medical professional’s provision of services to friends, family, or even himself or herself. An analogous adage from the legal practice applies: A lawyer who represents himself has a fool for a client. Multiple issues may arise from such a provision of services, including questions concerning the physician’s judgment and diagnoses given the personal connection to the client. While it may not be illegal to self-prescribe, many will readily recognize that this practice can quickly evolve from a well-intentioned one to a vicious cycle of abuse. Self-prescription with controlled substances should be expressly prohibited by hospitals, and a similar prohibition should be implemented against prescriptions for controlled substances for anyone with whom physicians have a close personal relationship.
Fortunately for the physician in this case, he informed the patient about the dangers related to consuming alcohol with the prescription. Physicians and medical professionals must ensure that patients are informed of — and understand — such dangers, including those related to prescription medications mixing with different activities (consuming alcohol, operating motor vehicles, interactions with other medications or specific foods, etc.).
For example, the effectiveness of blood pressure and heart medications may be reduced when combined with alcohol, especially beta-blockers and angiotensin-converting enzyme. Over-the-counter and prescription painkillers may even pose serious health risks when used concurrently with alcohol. Maintaining medical records with the specific information given to patients concerning medication use restrictions is paramount if a medical malpractice case ensues, as it is difficult to prove that warnings were provided if they were not documented.
Prescribing medications over the phone is generally not malpractice in and of itself. In fact, with the expansion of telemedicine, it is becoming more common. The physician here was a close friend of the decedent and therefore had knowledge of his general health and current medical condition, and warned him appropriately. The pharmacy where the patient filled the prescriptions also has a legal requirement to put warning labels on all medications that interact with or potentiate the effects of alcohol. It is unfortunate that many patients disregard these verbal warnings from prescribing physicians and the written warnings on the medication bottles in their hands, but as evidenced by this case, medical professionals who correctly provide these warnings may avoid liability for malpractice.
REFERENCE
Decided on April 19, 2018, in the Superior Court of Orange County, Orange, CA; case number 30-2015-00811876-CU-MM-CJC.
The physician warned the patient not to drink alcohol while taking the painkiller.
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