Opioid abuse has grown into a crisis that has occupied the headlines in recent years. The Centers for Disease Control and Prevention estimates that the total “economic burden” of prescription opioid misuse alone in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement. The root of the problem is misuse of opioids prescribed for chronic pain. It is estimated 21 to 29 percent of patients prescribed opioids for chronic pain will abuse them, and between 8 and 12 percent of people using opioids for chronic pain will develop an opioid use disorder.
To try to deal with this crisis, the Nebraska Legislature in 2018 took the unusual step of dictating what health care providers must discuss with patients before prescribing Schedule II controlled substances, or any other opioid, for the treatment of acute or chronic pain. The Legislature passed a statute that requires prescribers to discuss:
(a) The risks of addiction and overdose associated with the controlled substance or opiate being prescribed, including, but not limited to:
(i) Controlled substances and opiates are highly addictive even when taken as prescribed;
(ii )There is a risk of developing a physical or psychological dependence on the controlled substance or opiate; and
(iii) Taking more controlled substances or opiates than prescribed, or mixing sedatives, benzodiazepines, or alcohol with controlled substances or opiates, can result in fatal respiratory depression;
(b) The reasons why the prescription is necessary; and
(c) Alternative treatments that may be available.
Neb. Rev. Stat. § 38-1,144.
This legislative foray into the physician-patient relationship raises several questions that become relevant in the context of medical malpractice litigation:
- Does this statute now define the standard of care for informed consent discussions before starting opioid treatment? Ordinarily, the standard of care for what information must be given to patients is “information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities.” Neb. Rev. Stat. § 44-2816. This standard must be proven with expert testimony. Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 ( 2005). If § 38-1,144 defines the standard of care, expert testimony may no longer be necessary in opioid informed consent cases.
- What is the penalty for violating this statute? The legislation does not define the penalty, if any, for failing to provide the required information to opioid patients. Because the statute is contained in the Uniform Credentialing Act, on might presume violation of the statute could result in disciplinary action against the provider’s license. But that is not clear, and the statute makes no mention of potential penalties.
- By attempting to control communication between a physician and his or her patient, does the statute raise First Amendment concerns? While a First Amendment violation seems unlikely, it is at least questionable policy for the government to interfere in the physician-patient relationship by mandating the substance of discussions between a patient and his or her doctor.
Practitioners who prescribe opioids should be aware of this statute and what it requires. Violating its provisions could provide the basis for a lawsuit or even disciplinary action. The larger effects of the statute remain to be seen. They could be minimal, as the statute expires in 2029, but this remains to be seen. But the precedential effect of the government, in effect, practicing medicine should not be underestimated.