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DR. SUED FOR PRESCRIBING TOO MANY PAIN KILLERS
Patient's Excessive Use Doesn't Bar LiabilityEven though a patient exceeded her doctor's dosage instructions when taking narcotics that were prescribed for treating her Crohn's disease, the doctor may be sued for medical malpractice by continuing to prescribe the narcotics for the patient, the 6th District Court of Appeals has ruled.
Part of the plaintiff's medical treatment required that she take narcotics, in particular Percocet and Tylenol with codeine. The plaintiff apparently became addicted to the drugs, which the defendant doctor failed to recognize and which ultimately led to the plaintiff undergoing extensive drug rehabilitation.The plaintiff sued the defendant, claiming he was liable for medical malpractice by negligently prescribing the narcotics and failing to recognize her drug addiction.
The trial court granted the doctor's motion for a directed verdict.
But the 6th District reversed.
"Clearly, [the plaintiff] exceeded [the doctor's] instructions regarding the amount of narcotics to use to treat her ailments and exhibited classic drug addicted behavior when attempting to acquire additional narcotics," Judge Richard W. Knepper wrote. "We, however, disagree that such behavior by a patient automatically relieves a physician from any duty to monitor the patient for signs of abuse and ipso facto relieves a physician from any liability for continuing to prescribe narcotics even though abuse or overuse is suspected."
According to Knepper, "[such a finding is against public policy and renders meaningless a physician's statutory obligations to his patients."
The case is Conrad-Hutsell v. Colturi, M.D., et al. Lawyers Weekly No. 106-173-02 (15 pages).
Counsel for the parties could not be reached for comment before deadline.Addictive Behavior
The plaintiff, Jeana Conrad-Hutsell, suffered from Crohn's disease. The defendant, Dr. Thomas Colturi, treated her and, as part of the treatment, prescribed Percocet and Tylenol with codeine.
The plaintiff ultimately became addicted to the narcotics and had to undergo drug rehabilitation.
She then sued the defendant and defendant Digestive Health Care Consultants of Northwest Ohio, Inc. for medical malpractice in the Lucas County Court of Common Pleas. She claimed that, between November 1994 and August 1995, the defendant negligently prescribed dangerous and addictive narcotic drugs to her and failed to recognize her addition to those drugs, which necessitated extensive drug rehabilitation.Following the presentation of the plaintiff's case, the defendant moved for a directed verdict, which the trial court granted.
According to the trial court, the primary assumption of risk doctrine barred the plaintiff's claim.
Statutory Obligations
On appeal, the plaintiff argued that the trial court should not have granted a directed verdict in the defendant's favor because the defendant violated his statutorily prescribed duties and because the primary assumption of risk defense was inapplicable.
The 6th District agreed.
"We find that [the defendant] had certain duties and was required to follow certain procedures when utilizing a controlled substance in the treatment of [the plaintiff]," Judge Knepper said.
According to the judge, the defendant knew that the plaintiff's problems with Crohn's disease were long-standing and that she had previously been treated with narcotics.
"Nevertheless, [the defendant] never sought a complete copy of [the plaintiff's] medical records from the Cleveland Clinic until after he suspected she was addicted to the narcotics he was prescribing," Knepper explained. "Additionally, although [the defendant] suspected overuse and possibly abuse of the narcotics, he neither referred her to a pain management clinic or program, in order to reduce the need for narcotics, nor referred her for drug abuse counseling or rehabilitation."
Rather, the defendant "attempted to work with [the plaintiff] to get her to lessen her use, but continued to prescribe narcotics," the judge stated. "Based on [this], we find there are genuine issues of material fact concerning whether [the defendant] failed to fully consider the possibility that [the plaintiff] could become addicted to the prescribed narcotics as required by Ohio Adm. Code 4731-11 02(C).
Accordingly, "there are genuine issues of fact regarding whether the defendant breached his duties ñ i.e. whether he failed to obtain a complete medical history which would have revealed [the plaintiff's] previous problem with overuse of narcotics, and whether he failed to maintain accurate records concerning the amount of and frequency which he was prescribing her narcotics," Knepper wrote.
Assumption of the Risk
Next, the court addressed the trial court's application of the assumption of risk doctrine.
"[T]he trial court found that [the plaintiff's] action was barred based upon the doctrine of primary assumption of risk," Knepper said, explaining that there are three types of assumption of risk: implied, express and primary."At issue in this case is the doctrine of primary assumption of risk," the judge said, noting that the Ohio Supreme Court has said "the defense of primary assumption of risk is typified by the baseball cases where a plaintiff is injured when a baseball is hit into the stands."
Here, in order for the plaintiff's medical malpractice claim to be dismissed under the primary assumption of risk doctrine, "the trial court had to find that there was no risk created by [the defendant's] actions and that the risk of becoming addicted when taking narcotics was so inherent that it could not be eliminated," Knepper observed.
But the trial court did not make such a finding, the judge stated.
"Rather, the trial court concluded that [the plaintiff] primarily assumed the risk of becoming addicted because she knew of the risk of addition, yet intentionally took the narcotics in excess of the amounts prescribed, lied to [the defendant] concerning her use, lied to obtain additional prescriptions, and sought narcotics from area hospitals," Knepper said.
Despite the plaintiff's failure to follow the defendant's dosage instructions, the court said this behavior did not automatically relieve the defendant of liability.
"Insofar as there is substantial competent evidence to establish that [the defendant] breached his statutory duties regarding the utilization of controlled substances in treating [the plaintiff], reasonable minds could conclude differently regarding whether [the defendant's] actions created a risk of addition," Knepper concluded.
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