Tag Archives: physician negligence

What can the innocent doctor do when audited for drug diversion?

At all ages, there are people who will abuse prescription narcotics one way or another. Some abuse narcotics, causing danger to themselves, and others sell or give them to others, contributing to danger and illegality. When someone goes to the doctor, presenting a condition requiring pain medication, for example, the doctor has no idea or control regarding what the patient can and will do after they leave to get their prescription filled and are on their way. If the patient has a temporary condition that never seems to get better, or despite all reasonable pain management efforts, the patient still needs narcotics, there could be a greater underlying problem such as drug diversion.

What is drug diversion?

Drug diversion is the taking and giving, selling or otherwise using prescribed, controlled narcotics for any purpose other than that which the physician wrote the prescription. State and federal investigators and their agencies have charged many physicians with criminal violations in connection with drug diversion. While some may be guilty as charged and making money off drug diversion, others may be unknowing victims of the bad acts and schemes of others, within and beyond the healthcare facilities and systems within which they practice.

The drug diversion statistics and information collected and shared in the health care community are compelling. As new “tricks of the trade” are discovered, so are more examples of diversion behavior. A 2013 drug diversion awareness conference presentation highlights DEA perspectives on pharmaceutical use and abuse.

How can a physician know if their patient may be engaged in drug diversion?

No matter what the honest physician, assistants and staff do to prevent drug diversion, it may be impossible to spot every bad actor.

Awareness and education are key tools in combatting drug diversion. Not only must prescribing physicians pay attention to this problem, their nurses, staff and those at the pharmacy or dispensing authority should all be part of the conversation and sharing of information when something or someone just does not seem right. Pain medication tracking systems and new technologies make it easier to monitor narcotics and the patients to whom they are prescribed. Despite all the education, awareness and tracking efforts, drug diverters can still slip between the cracks, exposing the physician to liability.

Liability concerns and fear of investigations are making many physicians more careful, but some say they are too careful. Patients with legitimate needs for high-dose of powerful pain narcotics might be denied the painkillers they need to not be in chronic pain, because that patient’s history and prescriptions could trigger an audit in an electronically monitored system.

What can a physician do if they are targeted and accused of running a “pill mill?”

Under a federal standard, physicians face criminal liability if they prescribe controlled narcotics without a “legitimate medical purpose” and outside the “usual course of his professional practice.[i]” State standards vary from one to the next, some being higher than others.

In Illinois, the Medical Practice Act of 1987 enumerates the laws of the State of Illinois with respect to physicians and physician assistants and their legal duties and restrictions with respect to prescribing controlled narcotics. In addition to criminal liability, the Act specifically identifies grounds for discipline by the state for “Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance (designated product) or narcotic for other than medically accepted therapeutic purposes.[ii]

If federal or state investigators receive a tip or independently “audit” (investigate) your practice with a search warrant, they may already suspect there is a violation of law and they simply want proof to charge the physician with crimes. At the very first moment a physician senses or is notified of an audit or investigation of their practice and prescription histories, the physician should immediately contact an experienced healthcare law and licensing attorney with a criminal defense focus.

Michael V. Favia & Associates, P.C. represents Illinois-licensed professionals in actions involving the IDFPR and the federal and state agencies investigating and prosecuting for drug diversion. Physicians are well-advised to obtain proactive advice and counsel to make sure they are well-protected.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent licensed physicians in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please call (773) 631-4850, visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

[i] U.S. DOJ, Office of Diversion Control, Purpose of issue of prescription, 21 C.F.R. § 1306.04(a)

[ii] Illinois Medical Practice Act of 1987, 225 ILCS 60/22 (A)(17).

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On-duty emergency physicians are liable for damages despite the Good Samaritan Act

"To identify the most overlooked risks to physicians, Medical Economics asked several thought leaders to share their insight into strategies for protecting office-based practices."

In Illinois, the Good Samaritan Act protects individuals giving instructions for aid, or rendering aid to others in emergencies, from civil liability for damages resulting in the process. Simply stated, a bystander or passerby who sees someone with an injury or emergency condition does not have a legal duty to stop and give general or medical aid. Moreover, a passerby who stops to assist and render some type of aid, cannot be sued and found liable for civil damages if the endangered individual suffers and injury or dies in the process. The purpose of the Good Samaritan Act is to allow people to try to save a choking victim without worrying about a wrongful death suit if they are not successful.

The Good Samaritan Act includes a physician exemption from civil liability for emergency care. The statute states in pertinent part: “Any person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.[i]

While the language of the statute is clear, there question has arisen, what happens when the emergency care physician is not providing health care for a direct fee, but rather works as an on-duty physician.

The Illinois Supreme Court holds that the Good Samaritan Act does not shield on-duty physicians who do not bill for their services, and on-duty physicians have the same standard of care regardless of whether they bill for their services. The issue arose in a case involving an on-duty emergency room physician, responding to a “code blue” for a patient with trouble breathing and swallowing. The doctor intubated the patient and opened the airway, and nevertheless the patient experienced permanent brain damage.[ii] The doctor working as an emergency room physician when the “code blue” was called for a patient on another floor of the hospital, whom the doctor had never previously met or treated.

The First District Illinois Appellate Court held in the case, the emergency room physician responding to the “code blue” for a hospital patient, the immunity from liability under the Good Samaritan Act did not apply because the doctor’s services were not performed “without fee” where the doctor was paid to work in the emergency room.[iii]

If the facts had been different, this court could have applied the Good Samaritan Act. Assume a different set of facts where the doctor was not on-duty, working as an emergency physician at the time he responded to the “code blue” for the patient on another floor, separate from the emergency room. Assume the same treatment was given, the doctor intubated the patient, who experienced permanent brain damage, there would have been a more likely chance the doctor may have been able to be clear of civil liability under the Good Samaritan Act.

As new events and occurrences give rise to litigation over health care liability, the courts will decide those cases and the health care law and litigation firm of Michael V. Favia and Associates will share those holdings.

Michael V. Favia & Associates are available to assist with analysis and advice on all aspects of physician practice and litigation matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates’ professional licensing work, please visit www.IL-Licensing.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

 

[i] Illinois Good Samaritan Act, Sec. 25 Physicians, 745 ILCS 49/25

[ii] Beckers Hospital Review, Illinois Supreme Court: Good Samaritan Act Doesn’t Shield On-Duty Emergency Physicians, by Ayla Ellison, Apr. 29, 2014.

[iii] Home Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd., 2012 IL App (1st) 112321

Real stories: Medical mistakes and misdiagnosis, some causing death!

Some examples of medical mistakes and misdiagnosis come directly from the stories reported by doctors!

Some examples of medical mistakes and misdiagnosis come directly from the stories reported by doctors!

Everyone! A recent news article, Misdiagnosis Threatens Potentially Everyone[1], and the aptly titled article should cause us all to put our critical thinking caps on for a moment, consider that doctors are people too, and make mistakes. The recent study published in a medical insurance industry journal reports that nearly 12 million people who go to outpatient care clinics are given a false diagnosis.[2] While the numbers are compelling, many people are just fine and receive top quality medical care. The percentage risk of error, however, should cause people to pay attention, ask questions, seek second opinions and do their own follow up research.

Some examples of medical mistakes and misdiagnosis come directly from the stories reported by doctors! The following are a sample of a larger list collectively published on the Thought Catalog blog:

  • Overlooked Gunshot – “We didn’t find it till the chest x-ray.”
  • Misdiagnosed With Epilepsy – “As a very young doctor in training I misdiagnosed a woman with epilepsy.”
  • Guy Didn’t Know He Was Shot – “Scratch on his neck and “feeling drowsy”…turns out the “scratch” was an exit wound of a .22 caliber rifle round.”
  • Life Of A Pathologist – “He also got drunk at work a lot.”
  • Accidental Death – “As an ICU nurse, I’ve seen the decisions of some Doctors result in death. Families often times don’t know, but it happens more than you’d think.”
  • Oops – “I’m a nurse. I’ve given an anticoagulant (blood thinner) to the wrong patient.”
  • Dentist Blunder – “I was performing a simple extraction and preparing for the case when I didn’t realize that I had the x-ray flipped the wrong way the whole time.”
  • Glued Glove To Patient’s Face – “Anyone who has used derma bond before knows that stuff can be runny and bonds very quickly. I glued my glove to her face. Her mum was in the room, and I had to turn to her and say, “I’m sorry, I’ve just glued my glove to her face.””
  • Destroyed Ankle – “Patient here. A doctor tried to put an Ilizarov fixator on me, for limb lengthening, without proper knowledge or experience. He damaged the growth cartilage, dislodged my fibula and destroyed my ankle.”
  • Radiation Horror – “I worked in a radiology department in a trauma center and the amount of “redo” x-rays and CT scans we’d do to a simple careless error was mind boggling. Nobody seemed to care but I would cringe every time. So much needless extra radiation on some patients because the techs were lazy.”

We all wish it was not true, but medical mistakes and diagnosis happens. To learn more, read our blog article, Complex healthcare: Several factors contribute to medical mistakes and deaths

One focus of Michael V. Favia’s law practice is health law, which includes medical negligence/malpractice. He stays current on news and events involving healthcare and is a member of a few boards of advisors/directors including the Chicago Concussion Coalition (Sports Legacy Institute) and Health Leaders (National Center for Healthcare Leadership).

If you are interested in learning more about Michael V. Favia & Associates, serving Chicago and its suburban communities, please visit the Favia Law Firm website for resources and articles of interest. To contact the firm to speak to a lawyer about a healthcare-related concern, you may dial (773) 631-4580. For more information about the firm’s practice areas, you can also visit the firm’s Facebook and Twitter sites. Please “LIke” and “Follow” respectively to keep in touch!

[1] Guardian Liberty Voice: Misdiagnosis Threatens Potentially Everyone. By Lindsey Alexander, Apr. 20, 2014.

[2] Quoted in the Guardian Liberty Voice article cited above, “The study was published in the BMJ Quality and Safety journal.”