Opioid-Related Legislative Foray into the Physician-Patient Relationship Raises Several Questions

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Information about Opioid-Related Legislative Foray into the Physician-Patient Relationship Raises Several Questions

Phil Puccio

Opioid abuse has become a crisis that has made headlines in recent years. The Centers for Disease Control and Prevention estimates that the total “economic burden” of prescription opioid abuse in the United States alone is $78.5 billion per year, including costs in health care, lost productivity, addiction treatment, and criminal justice involvement. At the root of the problem is the abuse of opioids, which are prescribed for chronic pain. It is estimated that 21 to 29 percent of patients prescribed opioids for chronic pain abuse them, and between 8 and 12 percent of people who use opioids for chronic pain will develop an opioid use disorder.

To address this crisis, in 2018 the Nebraska legislature took the unusual step of mandating what healthcare providers must discuss with patients before prescribing Schedule II controlled substances or other opioids to treat acute or chronic pain. Legislators passed legislation requiring prescribers to discuss:

(a) The risks of addiction and overdose associated with the prescribed controlled substance or opiate, including but not limited to:

(i) Controlled substances and opiates are highly addictive even when taken as directed;

(ii) There is a risk of developing a physical or psychological dependence on the controlled substance or opiate; and

(iii) Taking more controlled substances or opiates than prescribed or mixing tranquilizers, benzodiazepines, or alcohol with controlled substances or opiates can result in fatal respiratory depression;

(b) the reasons why the prescription is necessary; and

(c) Alternative treatments that may be available.

Neb. Rev. Stat. Sections 38-1.144.

This legal foray into the doctor-patient relationship raises several questions that become relevant in the context of medical malpractice litigation:

  • Does this law now define the standard of care for informational talks before starting opioid treatment? Usually, the standard of care for the information that must be given to patients is “information that would normally be provided to the patient in similar circumstances by healthcare providers operating in a similar practice nearby or in similar locations.” Neb. Rev .Stat. § 44-2816. This standard must be proven by expert reports. Cerny v. Longley, 270 Neb. 706, 708 NW2d 219 (2005). If Section 38-1.144 defines the standard of care, expert opinion may no longer be required in opioid informed consent cases.
  • What are the penalties for violating this law? The legislation does not define the penalty, if any, for failure to provide opioid patients with the required information. Because the law is contained in the Uniform Credentialing Act, a suspected violation of the law could result in disciplinary action against the provider’s license. But that’s not clear, and the law doesn’t mention possible penalties.
  • By attempting to control communications between a doctor and their patient, does the law address First Amendment concerns? While a violation of the First Amendment seems unlikely, it is at least questionable for the government to interfere in the doctor-patient relationship by mandating the content of conversations between a patient and their doctor.

Practitioners who prescribe opioids should be aware of this law and its requirements. Violation of its regulations could be the basis of a lawsuit or even a disciplinary proceeding. The larger impact of the law remains to be seen. They might be minimal as the law expires in 2029, but that remains to be seen. But the precedent effect of the state, namely the practice of medicine, should not be underestimated.

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Original Source: https://www.ldmlaw.com/2022/02/opioid-related-legislative-foray-into-the-physician-patient-relationship-raises-several-questions/
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