Nurse Practitioner Case Study: Narcotic medications prescribed to patient when not medically indicated

This case involves two insured nurse practitioners who owned a primary care medical clinic.

Medical malpractice claims may be asserted against any healthcare practitioner, including nurse practitioners. This case involves two insured nurse practitioners who owned a primary care medical clinic. 

Indemnity/settlement payment: Policy limits
Expense payment: Greater than $330,000
(Figures represent only the payments made on behalf of our insured nurse practitioner & the NP’s office practice and do not include any payments that may have been made from any co-defendants. Amounts paid on behalf of the co-defendants named in the case are not available.)

Two insured nurse practitioners co-owned a primary care medical clinic and employed two other full-time nurse practitioners, where more than half of their clientele were pain patients. 

One of the insured nurse practitioners prescribed oxycodone to her patient for back and neck pain. He in turn sold at least some of his narcotics to his brother, who then sold or in some way distributed the oxycodone to yet another individual, who ultimately sold them to a teenage boy. 

After smoking the oxycodone, the child was later found dead. The patient who was originally prescribed the medication and his brother each served prison sentences for the illegal sale of the drug which caused the overdose.

The parents of the child filed a lawsuit against the clinic, our insured nurse practitioners, and the pharmacy adjacent to the clinic that dispensed the narcotic pain medications alleging:
  • The narcotic medications prescribed to patient were not medically indicated.
  • The narcotic medications were prescribed in grossly excessive amounts.
  • And that our insured knew or should have known that her patient was likely to sell or distribute his medications illegally.
 

Risk Management Comments

The allegations in this case are that the defendants provided controlled substances when:
  • The prescription of such drugs was not medically indicated.
  • The substances were provided in amounts grossly excessive to any legitimate medical need.
  • The nurse practitioner who prescribed the oxycodone failed to inform the patients of the material risks of the controlled substances prescribed. In fact, the plaintiffs alleged that she had made statements minimizing the material risks of the controlled substances prescribed.

At about the same time, the Drug Enforcement Administration (DEA) received reports of excessive prescribing of narcotic pain medication and raided the clinic. No criminal charges were ever filed, but the case remained open. Additionally, the State Board of Nursing began investigating numerous complaints against all four nurse practitioners working at the clinic. The results of the investigation concluded that there were seven patients for whom care fell below the standard of care.

Several expert witnesses were asked to review the healthcare records of the clinic on behalf of the defense team. The experts found that individually, many of the patients’ treatments could be supported. However, when viewed together, defensibility is slim. This is compounded by the fact that neither of our insureds presented well in practice depositions, and their healthcare documentation included unprofessional, unnecessary and inappropriate comments.
 

Resolution

Defense experts deemed the possibility of a defense verdict to be less than 10 percent should the case go to trial. The decision was made to attempt to resolve the claim in mediation, where the parties ultimately agreed to a settlement payment, which exceeded policy limits.

In an agreement negotiated between the Nursing Board, one of the employed nurse practitioner’s license was restricted such that she cannot prescribe Schedule II controlled substances for two years. The second employed nurse practitioner has been unable to find employment as a nurse practitioner and currently works part time at a medical marijuana dispensary.

Although neither nurse practitioner owners’ licenses have been restricted in their state, they both relinquished their DEA licenses that allowed them to prescribe Schedule II narcotics. The total incurred expenses paid to defend the two insured nurse practitioners in totaled over $330,000. 

Risk Control Recommendations

  • Document in the medical record contemporaneously, factually and thoroughly. The medical record should never be altered or destroyed.
  • Refrain from documenting subjective comments, including statements about the patient, family or other members of the healthcare team in the patient’s healthcare record.
  • Closely monitor patient use of controlled drugs to avoid overdependence or potential addiction and refer to chronic pain patients to a pain management center or specialist. 
  • Use an opioid risk tool to screen patients with a high risk of abuse.
  • Know important risk factors prior prescribing narcotics.    
    • Depression
    • Other psychological comorbidities
    • Adults between the ages of 20 and 40 years
    • History of preadolescent sexual abuse
    • Somatization
  • Talk to your patients about their medications, informing them of brand and generic names, does or strength, route frequency and times, realistic expectations of results, potential side effects, signs of adverse reaction and symptoms warranting immediate medical attention.
  • Document all communications with patients/family members, including telephone calls.
  • Discuss the patient’s treatment plan and ongoing response to treatment with your collaborating/supervising physician as required and appropriate and document the interaction.

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