Can Patients Sue Hospitals for Post-Op Opioid Addiction?

By Paul Gaita 11/27/17

Hospitals lack a standard opioid treatment plan for post-operative pain.

 Young woman sleeping in hospital bed with medicines and water in front

An NPR feature highlights a growing concern among medical professionals and patients alike in regard to prescribing opioid painkillers: if an individual becomes dependent on such medication while recovering from surgery or other treatment in a hospital, is the hospital liable for that condition?

For some patients and doctors, the answer is yes—preventing dependency on opioids is a reasonable assumption. But for others, placing the blame on the hospital could open to conflicts based not on treatment, but on patient satisfaction, which in turn could have a negative financial impact on the facility.

In all cases, however, NPR notes that the issue of hospital liability underscores the need for comprehensive guidelines for treating pain in all patients.

The NPR feature cites the case of Katie Herzog, a Boston-based consulting firm president who encountered problems with opioid medication after back surgery. Prescribed Dilaudid, a prescription opioid for moderate-to-severe pain, she took the full dosage per her provider's instructions for two weeks, but found that they had no specific plan for weaning her off the drug after that time period.

Faced with tapering off a powerful opioid with no medical guidance, Herzog was forced to search online for instructions, which she found through a Canadian Medical Association guide.

As NPR notes, Herzog still felt the effects of withdrawal at the end of her self-imposed plan, but at her follow-up visit, both her surgeon and internist believed that the physical response—as Herzog recalled, "I had diarrhea, I was vomiting a lot, I had muscle pains, headache"—was a virus. She then spent a week in acute withdrawal, followed by two weeks of related symptoms. 

"I had every single symptom in the book," she said. "And there was no recognition by these really professional, senior, seasoned doctors at Boston's finest hospitals that I was going through withdrawal." Herzog's doctors did eventually acknowledge that she had endured withdrawal while under their care, but the question remains: should the hospital with which they were associated be held responsible for Herzog's situation?

For some medical professionals and administrators, the problem begins and ends with the facility that treated the patient in question. NPR cites a recent blog and journal post for Health Affairs by a trio of physician-executives—Drs. Michael Schlosser, Ravi Chari and Jonathan Perlin—who suggest just that. "It arises during a hospitalization, is a high-cost and high-volume condition, and could reasonably have been prevented through the application of evidence-based guidelines," they wrote.

Dr. Andrew Kolodny, director of Physicians for Responsible Opioid Prescribing and co-director of the Opioid Policy Research Collaborative at Brandeis University's Heller School, concurs with the authors. "We're in the midst of a severe opioid epidemic, caused by the over-prescribing of opioids," he stated. "Putting hospitals on the hook for the consequences of aggressive opioid prescribing makes sense to me."

But according to NPR, there may be a downside to such punitive measures. Monitoring every single post-op patient for opioid use over the course of weeks and months may tax hospital resources. Also, hospitals receive funding for patient satisfaction surveys, and those that receive low scores may lose money needed to treat all patients, not just those with chronic or severe pain.

Though physicians followed guidelines for pain management, some patients may still feel unhappy with treatment and, as Dr. Gabriel Brat, a trauma surgeon at Beth Israel Deaconess Medical Center noted, they "may take that out in these patient report cards."

According to Dr. Brat, such dissatisfaction may be the result of uncertainty on the part of doctors on how to treat various levels of pain. "Many surgeons are still prescribing opioids for the subset of patients that have higher requirements, as opposed to for the majority of patients who are taking a very small percentage of the pills that they are prescribed," he said.

That lack of a cohesive treatment plan can be traced back to requirements imposed on medical professionals by their own industry: as NPR reports, no concrete guidelines for post-operative opioid prescription exists.

The Centers for Disease Control and Prevention (CDC) issued such guidelines or the treatment of chronic pain, but not for acute or post-operative pain.

Only recently have some guidelines begun to emerge for reference: NPR cites a 2017 study that looked at surgical records for more than 215,000 patients, and determined that opioid prescriptions that lasted between four to nine days did the most good for pain treatment and post-surgery recovery.

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, and The Los Angeles Beat, among many other publications and websites.