Oncologists and other physicians frequently and appropriately use opioid analgesics to manage cancer pain. Recently, however, in the context of a national opioid epidemic, the use of opioids has become increasingly controversial, and clinicians must consider a number of important legal issues when prescribing opioid pain medication to patients with cancer pain.
Prescribing opioids to cancer patients can create civil liability issues related to overdose, addiction, suicide, inadequate analgesia, and adverse unintended consequences of avoiding opioids in favor of other types of medication. Alleged inappropriate prescribing by physicians can lead to action against a prescriber’s license by state boards of medicine, nursing, or pharmacy. Clinicians can face criminal charges from state governments and can face legal action by the Department of Justice (DOJ) or the Drug Enforcement Administration (DEA) for alleged inappropriate opioid prescribing. Some brief clinical vignettes will help the reader appreciate the various legal issues associated with prescribing opioids.
KEY LIABILITY ISSUES WHEN PRESCRIBING OPIOID ANALGESICS
Civil liability for opioid prescribing
Opioids have long been recognized as a safe and reliable way to treat cancer pain, are easily titrated to the appropriate analgesic effect, and can be administered by multiple routes.1 Nonetheless, more than half of cancer patients experience pain while undergoing treatment, with 39.3% of patients still experiencing pain after curative therapy.2 Among those treated for their pain, approximately one-third of patients report untreated or undertreated pain related to their cancer.2 Cancer patients may experience somatic, visceral, and neuropathic pain, as well as various pain syndromes.3 Opioids have long been appropriately used by clinicians in the management of cancer pain.
Chronic cancer pain has been defined by the International Association for the Study of Pain (IASP) as including “pain caused by the primary cancer itself or metastases (chronic cancer pain) or its treatment (chronic post-cancer treatment pain).”4 While some authors have attempted to make a physiologic distinction between cancer pain and noncancer pain, the distinction has not been recognized by many medical authorities, including the US Food and Drug Administration (FDA), since the physiologic mechanisms for both types of pain are similar.5,6
From the standpoint of civil liability with regard to prescribing of opioids, clinicians may have liability risk for purportedly overprescribing opioids, thereby putting patients at risk for addiction and fatal overdose. Less commonly, physicians may encounter legal risk at the other extreme, by allegedly failing to treat cancer pain appropriately. In the current medical and political environment where the utility of opioids is being widely questioned vis-à-vis the current opioid crisis, the perceived liability for purportedly overprescribing is likely the most significant concern.
For the purposes of professional negligence, the physician is held to the standard as to what a reasonably prudent clinician would have done in the same or similar circumstances. Physicians ...