17.6 Million Pounds of Flesh

By Jodi Debbrecht Switalski

The Centers for Disease Control report that 259 million prescriptions for opioids were written in 2012.

Last year, 52,404 people died of a drug overdose surpassing gun homicides and motor vehicle accidents to become the leading cause of accidental death in the United States.

4 out of 5 people who use heroin become addicted to opioids after being introduced to them through a legal prescription and despite efforts around the country – and around the world – to curb prescription writing, increase education and even establish guidelines for medical, dental and other practices, rates of addiction and overdose continue to skyrocket. And finally, FINALLY, a study out of Minnesota confirms what we have been saying all along: the death/overdose statistics are grossly underreported.

For many years, prescription drug addiction was a silent disease. People who are suffering were able to hide it. Or embarrassed to disclose it. Not easily identified and medical practitioners were sold a bill of goods – opioids were not addictive. Let’s not forget about the misleading patient’s bill of rights and reimbursement for positive patient satisfaction scores. Regardless of the process, people began to die. Prescription rates increased. Families were left asking why and clearly saying, “No one told us they were addictive.”

Then they realized. Then they learned. Then, the people dying were affluent and with the means to pursue responsibility.

They want their pound of flesh.

Litigation cases skyrocketed and settlements and verdicts for families of the decedent were in the millions. Just as Harvard Medical School was reporting that 1 in 3 Americans blame doctors for the opioid epidemic, a St. Louis jury verdict on behalf of the plaintiff, who is still alive but nonetheless who suffered unintended consequences, sends a message: “This is a doctor problem… the problem starts with the doctor, and we have to do something to end it.”

The award was for $17.6 million dollars.

The fairness of the issue is not currently relevant. A practice’s failure to monitor a patient for signs of physical dependency, addiction/abuse and the issue of informed consent (you told them they can be addictive) are what matter. We live in an era where 8 out of 10 people who have cancer receive treatment while only 1 in 10 people who suffer from addiction get help. Medical ethics scream nonmaleficence! Do no harm! Harm by omission is included in that mantra. Nowhere in your oath do we find the ability to treat one disease and not another nor do we find the ability to treat one disease and CAUSE another.

Hence, the problem is exacerbated and the eyes of the jury are looking at you, the practitioner.

17.6 million times.

So what do you do?

First, you start with an informed consent document that really informs. And gets consent. Don’t be misled by the typical, one page controlled substance agreement. That just won’t get you there. Set the table; establish the rules of engagement; shift the paradigm. This is not medical policing, this is educating your patient on the purpose, the risks, benefits, alternatives and more on this course of treatment as part of a much bigger plan. Use techniques to ensure understanding and consent. Your concern is treating the source of the pain/anxiety without causing further harm. If a treatment plan does not work, do something different! Implement methods to reinforce the information and responsibilities of the treatment plan.

Second, monitor your patient’s treatment plan. Best practices for compliance clearly detail what is currently required of practitioners with regard to effective monitoring and treatment of their patients. Obtaining a thorough patient history and records, utilizing state prescription drug monitoring programs, pill counts, use of controlled substance agreements, drug screens, referrals, monitoring for aberrant behaviors and more are all imperative to successful treatment and mitigation strategies for risk and liability.

Implementation of both necessities is easy. With the right direction and assistance, it can even be done for you. Think of it, documents, protocols and pathways built around your practice and demographic for better treatment and assessment resulting in improving patient outcomes and mitigating practice liability. The best of all worlds.

Your organization simply cannot afford not to do this. It is a matter of economic efficiency and medical responsibility.

And there are 17.6 million reasons why you should.

Judge Jodi Debbrecht Switalski resigned from the bench in January of 2016 to become a partner with The Stutman Switalski Group LLC and practice law in metro Detroit focusing on malpractice defense. In addition, and due to demand, she formed her own business group, Switalski Consulting LLC, where she provides consulting services and has authored informed consent/controlled substance agreements and corresponding protocols for practices to use on a proprietary basis. The research and clinical support behind the documents is extensive and is based upon the most current caselaw and best practices for compliance. Within only a few months, she has worked with and provided documents and/or consulting for practices of all sizes throughout the United States.

For further information, please do not hesitate to contact Jodi at (248) 224-9482 or