Iatrogenic narcotic addiction

Another group of malpractice claim cases ia those in which the plaintiff alleged that the prescription of an opiate analgesic caused iatrogenic addiction (Musto 1985). The rate of addiction following the therapeutic use of opioids is very low. As noted above, Porter and Jick found four such cases among 11,882 patients, and Medina and Diamond found only three instances of opioid abuse among 2369 patients treated with opiate analgesics for headache.

Steven (1995) drew attention to what seems to be an increased risk of dependence among patients treated with an opiate analgesic for pain following a work injury, particularly where this caused persistent low back pain. This report highlighted the need for careful evaluation of patients, early rehabilitation and return to work performing modified duties, and the importance of non-pharmacological approaches to chronic pain management.

Although there have been relatively few reported successful claims for iatrogenic addiction, this is probably because most of these cases were settled rather than proceeding to a verdict. In general, reported cases have held that iatrogenic opioid addiction is a legitimate cause of action (Los Alamos Medical Center, Inc. v. Coe 1954; Rigelhaupt 1982). It is imperative for doctors to inform patients about the benefits and risks inherent in management involving opiate analgesic preparations, including the risk of addiction. They must document these warnings in their clinical notes.

Allegations of clinician malpractice can also follow death while the patient was taking long-term opioid analgesic medication.

Rich & Webster (2011) reported on a series of 35 cases ‘of patients with chronic pain who overdosed, 20 of them fatally, while consuming therapeutic opioids, leading to lawsuits against physicians for malpractice’. Ten deaths were related to methadone, whereas the use of hydrocodone was associated with four deaths. The authors commented that a number of ‘knowledge deficits’ were considered to have contributed to the overdoses, including initiating too high a starting dose, titrating doses too rapidly, converting to a different opioid using inadequate guides, and failing to screen and monitor for medical or psychiatric co-morbidities that can compromise opioid therapy.

Failure to provide adequate pain relief

At least since the case of R. v Adams (1957), the courts have declined to impose legal liability for death that may occur following the provision of reasonably necessary pain relief treatment. In this case, an English general practitioner, Dr John Bodkin Adams, was charged with murder when it was discovered that a number of elderly patients who had died were treated by him with high doses of opiate analgesics. Lord Justice Devlin focused on the intention of the physician, which distinguished palliative treatment aimed at enhancing the patient’s well-being by relieving the pain and symptoms of an advanced disease from actions specifically aimed at ending the patient’s life. According to Devlin (1986), a physician ‘is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life’ (at 71).

Conversely, leaving patients in pain may amount to negligence as well as unethical and unprofessional conduct. It is regrettable that, as Cherny & Catane (1995) commented, too many patients with pain due to cancer receive inadequate pain relief because oncologists ‘commonly underestimate the prevalence and severity of pain’ experienced by their patients. They noted that there were oncologists in clinical practice who had inadequate knowledge about pain management and, moreover, ‘in many cases these knowledge deficits are not appreciated by the clinicians involved’.

Angarola & Donato (1991) drew attention to a North Carolina jury verdict in November 1990 that awarded $15 million in damages to the family of a man whose opioid analgesic medication, ordered by his physician for treatment of pain due to terminal cancer of the prostate with bony metastases, was withheld in a nursing home by a nurse and her employer who considered the patient to be ‘addicted to morphine’. As a consequence of withholding of morphine, prior to his death the patient suffered ‘increased pain and suffering, as well as emotional and mental anguish’. During the trial reference was made to the existence of a ‘Patients’ Bill of Rights’ in nursing homes which, the jury agreed, gave the patient ‘a right to appropriate pain treatment’. The jury verdict was appealed, and prior to the matter being reconsidered by the court it was ‘resolved by an undisclosed settlement between the parties’.

In June 2001, a California jury awarded the family of a patient who died of cancer US$1.5 million in damages for pain and suffering of the patient. The treating physician was found liable for recklessness and abuse because he had failed to prescribe adequate pain-relieving medication for the patient (CNN 2001). In this particular case the physician was sued for failure to prescribe sufficient medication to ease the patient’s pain, and for ‘elder abuse’ in not providing adequate treatment.

Drug-specific liability issues

The use of opioid analgesics can give rise to legal claims arising from complications other than addiction.

Several years ago one of us (GM) was asked to undertake a psychiatric assessment of a woman who had been given an excessive dose of morphine for post-operative pain relief following surgery for a fractured hip, then developed respiratory depression. She experienced bizarre ‘out of body’ sensations during the episode of hypoxia (which had been documented) and when evaluated some years later described continuing symptoms of post-traumatic stress disorder arising from that episode. The case was settled out of court.

The use of pethidine (known as meperidine in the USA) in the management of chronic pain can give rise to neurotoxicity due to an accumulation of the toxic metabolite norpethidine (Hermes & Hare 1993). Manifestations of norpethidine neurotoxicity range from agitation to grand mal convulsions. It has also been suggested that pethidine is more likely than other opiate analgesics to give rise to addictive behaviour following therapeutic use. For these reasons, it has been recommended that pethidine only be used on a short-term basis in specific situations, such as during labour. Until relatively recently it was considered that pethidine was the opiate of choice in the management of severe pain in cases of biliary tract and pancreatic disease. Research has shown that parenteral ketorolac produces analgesia equal to that of pethidine and butorphanol in the management of biliary colic (Dula et al 2001; Olsen et al 2008) and renal colic (Sandhu et al 1994), as well as the control of severe acute pain in general (Koenig et al 1994), with fewer side effects. In the treatment of pain due to pancreatitis, it has been argued that morphine is preferable to pethidine because it offers longer pain relief with less risk of seizures (Thompson 2001).

Patients are usually warned about the risk of excessive use of ergotamine, and advised about the upper limit of dosage that may be taken. The risk of gangrene due to excessive use of ergotamine and similar compounds has been known for a considerable time. However, where there is no such warning and the patient develops such a complication legal liability will lie with the prescribing physician and the dispensing pharmacist (Dwyer v. Roderick & Others 1983).

In this case the patient, Mrs Dwyer, was prescribed an ergotamine preparation for treatment of migraine headaches. The prescribing doctor advised the patient to take two tablets every 4 hours, without any further instructions, and failed to warn the patient that no more than four tablets should be taken for any one attack of migraine, and no more than 12 tablets should be taken in a week. The patient was provided with 60 tablets. Over a 6-day period after the tablets were dispensed Mrs Dwyer took 36 tablets, suffered gangrene of the toes and lower limbs, and amputation was required.

In the lower court judgment was given against the defendants for £100,000, that is, against the prescribing doctor, a second doctor who had visited the patient at home and had failed to notice that incorrect instructions had been given to Mrs Dwyer concerning the dosage of the medication, and the two pharmacists who dispensed the medication with incorrect instructions. On appeal, it was held that no liability attached to the second doctor, and ultimately 45% of the damages were apportioned against the prescribing doctor and the remainder against the pharmacists.