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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the January 1996 issue of the Journal

Question: During an initial visit, a patient requested medication for pain. In that I had reason to believe the patient was in pain, and had mapped out a treatment plan to which he was agreeable, I prescribed a four-day supply of Vicodin and at the same time arranged a subsequent appointment. The patient called the next day and indicated the pill bottle had tipped over and the pills were lost down the drain. I provided the patient with a one-time refill of 16 pills.

The patient failed to show for subsequent appointments, yet continued to call for refills. Realizing that the patient may have a dependency problem, I refused to provide refills. I am concerned that the patient will continue to call various health care professionals in an attempt to secure prescriptions.

What should I do-both in terms of dealing with the request for narcotics as well as future treatment of the patient?

Answer: The dentist's primary duty is to the patient. This duty exists whether the patient is new or long-standing. The limited prescription was correct. Although there is no statute or rule limiting the prescription, it may well fall within the professional standard of care, the breach of which could lead to a malpractice lawsuit.

A dentist is under no legal obligation to report a patient's drug dependency to any agency. On the contrary, if a dentist disclosed information about a patient to a third person without the patient's consent, the dentist would be in breach of the dentist-patient privilege of confidentiality. Under this privilege, codified in the Michigan Public Health Code, a dentist is barred from disclosing any information "relative to the care and treatment of a dental patient acquired as a result of providing professional dental services," unless the patient gives written consent for the disclosure.

Although there is obviously no single best approach, and each case should be considered on its own unique facts, a direct approach with the patient is generally preferable. The dentist should consider informing the patient that he believes that the requested medication is not in the patient's best interest or is simply not medically necessary. Under certain circumstances, it may be advisable for a dentist to confront the patient with the belief that the patient might have a drug dependency problem. The dentist should be prepared to refer the patient to a treatment center or counselor.

A dentist should stand firm in refusing to prescribe narcotics to a patient for whom the dentist feels it is inappropriate or unnecessary. This would likely lead to a termination of the dentist-patient relationship, either by the patient or the dentist, who may determine that the patient simply will not cooperate in obtaining treatment for drug dependency.

In this instance, the legal concept of abandonment should be considered. For a patient to prove abandonment, the patient must show that the dentist discontinued the treatment without the patient's consent or without giving reasonable notice, and the abandonment was the proximate cause of the patient's injuries. The abandonment issue becomes more acute with respect to a patient for whom a treatment plan is in process. For a new patient, this legal risk is lessened.

As with all matters relating to patient care, the facts and conclusions should be well-documented in the patient's records. This would include not only the prescription information, but the statements made by the patient such as losing the pills down the drain and the dentist's advice to the patient. Included in this advice should be any recommendation or referral of the patient to a treatment center or counselor, along with reference to notice of any termination of the patient relationship and recommendations or referrals to other dentists.

In dealing with suspected drug dependency by patients, the laws relating to the standard of practice, confidentiality and abandonment must be considered. Equally important, however, is the law of common sense. Limiting the prescription of narcotic drugs and directly confronting the patient with the problem is generally best for the patient, and is therefore consistent with the dentist's primary duty.

Posted in: Treatment Issues

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