[ Friday, January 20, 2006 ]
HIPAA, Pain Management, and Drug-Seeking Patients:
Got a heads up
from Walter Olson at Overlawyered.com noting the fine line
pain management doctors have to walk: if you give patients the drugs they ask for, you might go to jail
, or you might get sued by the family for aiding the patient's drug dependency; if you don't, you might get sued for failing to relieve the patient's legitimate pain. What's a doctor
to do when a patient shows up in the ER, or in your office, claiming to be in severe pain and needing, say, OxyContin?
The gut reaction of many is to check with other doctors in the community to see if the patient is a known drug seeker. There's a problem with that that's obvious to anyone reading this: it may be a HIPAA violation for the asking doctor to ask, and for the asked doctors to tell. You could try to call it a disclosure for treatment purposes, and you'd probably be justified in relying on that exception. But there's another answer, as one of Dr. Kevin's commenters noted: before writing the script, ask the patient for an authorization to contact other providers in the area to confirm that he's not a drug-seeker. There's a problem with that answer, too (in addition to the "pissing-off-the-patient" problem, which shouldn't stop anyone): you can't condition treatment on receipt of an authorization. I guess I'd tell the patient that I won't prescribe that without asking around town to make sure the patient isn't a drug-seeker, without saying it's an authorization (I'd rely on the treatment purposes exception), and allow the patient to withdraw the request and leave without the prescription. That way, you're not conditioning treatment on receipt of an authorization, but you're also getting implicit consent to the disclosure.
Jeff [9:52 AM]
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