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Professional liability expert weighs in on protecting your practice from opioid doc arrest fallout

In our current issue of Part B News we review ways in which your practice can insulate itself from liability if one of your providers is charged with crimes relating to opioid prescribing. Here with some extra analysis is Constance Endelicato, partner with Wood Smith Henning & Berman LLP in Los Angeles, vice chair of the Medical Defense and Health Law Committee of the International Association of Defense Counsel, and a specialist in professional liability claims. 

[Practices] must have policies and procedures in place that specifically address the prescription of opioid medication. The Centers for Disease Control (CDC) Guideline for Prescribing Opiods for Chronic Pain should be used as the model. A Quality Assurance program, including stand-up meetings among  providers to discuss opioid patients, and a care coordinator specifically aimed at conducting monthly audits should be employed to monitor the prescriptions written by each of its members. ... The group must also carefully screen its members with ongoing checks as to disciplinary status, criminal and civil background, status of hospital staff privileges and personal health. 

[But] with all proactive steps in place, the practice will still be subject in most states to exposure to civil liability. Under theories of respondeat superior, vicarious liability, ostensible agency, negligent supervision and hiring, to name a few, the relationship of the provider to the group will come to play. ...  Physician extenders require the signature of a licensed physician to sign off on narcotic pain medications and will therefore share in exposure. 

Most licensed physicians will be independent contractors, [and] in general employers are not liable for the acts of independent contractors unless the work is “inherently dangerous activity.” However, under agency theory, if a third party is injured because of the actions of a non-employee agent, when the agent is acting on behalf of the principal, the principal may be liable as well as the agent. Hence, in a managed care setting, the group will likely face exposure. 

In criminal matters, the wrongdoer will face exposure, but the practice will be insulated as long as there is a lack of knowledge as to the crime. …  In one case, a physician who was working in a prominent managed care group was arrested [after] one of his patients had died of an overdose. The husband of the overdose victim claimed that they both had become addicted to the medication that the accused had been prescribing for years. Records from the medical board and other sources showed a history of disciplinary actions, complaints of his prescribing practices and questions as to his own sobriety while working, which all came into play. The managed care group was not alleged to be criminally responsible in any way for the acts of this physician. 

 [If the charged person is a partner/owner:] in criminal actions, the groups’ mental state (mens rea) and their conduct (actus rea) will be assessed and, with the appropriate policies and procedures in place, even if a provider/owner [who] is alleged to have misappropriated the medications is able to commit a crime, the group should not face any criminal liability. Criminal charges are levied against providers who allegedly distribute drugs while acting outside the usual course of professional practice and without legitimate medical purpose. If the practice has no knowledge or intent of wrongdoing (scienter), those members of the group will not face criminal liability. 

Blog Tags: compliance
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