The Perils of Prescribing Medication and the Goldilocks Principle: Defending Related Claims of Malpractice.

• Author: Durney, Peter M.

ADVANCES in medical science and pharmaceutical engineering in the United States have given rise to an increasing number of claims of abuse related to the prescription of medication. Regulatory and public scrutiny of prescribing practices have increased, (1) as has patient awareness. As a result, medical practitioners authorized to write prescriptions have come to be exposed to liability for claims not only for their having over-prescribed medication, but also for their having under-prescribed medication; that is, having prescribed less than an adequate dose of an otherwise effective medication. (2) Simultaneously, a rising percentage of such malpractice claims involve troubled individuals exhibiting drug-seeking behavior, (3) or instances of so-called "doctor-shopping" by drug dependent patients. (4) This patient profile presents a real conundrum for treating physicians. A doctor observing that his or her patient is exhibiting drug-seeking behavior, or has been doctor-shopping, may feel conflicted about how best to effectively treat that patient, or be distracted by the need to remain hyper-alert to steering clear of allegations of over-prescription or under-prescription of medication, (5) both of which theories are currently being used as bases for allegations of medical malpractice. (6)

Where pharmaceuticals are concerned, trial and error may ultimately dictate the best course of treatment. But with different prescription regimens comes risk. How much prescription medication is too much? How much prescription medication is too little? This conundrum fits squarely within what has been colloquially referred to as the "Goldilocks Principle," taken from the popular children's story. In essence, the Goldilocks Principle describes the internal tug of war between competing concerns, in an effort to arrive at the best solution for whatever problem one is facing. That sounds innocuous enough. However, where the end of the children's story finds Goldilocks asleep in Baby Bear's bed, having evaluated her options before ultimately choosing which bowl of porridge to eat and where to sleep, the issues addressed in this article are anything but lighthearted. The potential consequences for the prescribing physician or nurse accused of malpractice are much more serious than those faced by the Goldilocks story's young protagonist. In medicine, which all would agree is not a "perfect science," the best choice is rarely immediately apparent, consequently deciding the proper course is not easy. Therein lie the challenges addressed by this article. In the context of prescription medications, finding the optimal dosage of a medication for each individual patient (7)

The essential steps in achieving [balanced prescribing] are (a) careful attention to the history, examination, and investigation of the patient's condition and drug therapy, (b) accurate diagnosis, (c) detailed attention to prescribing the dosage regimen in the light of the therapeutic goal, (d) careful writing of the prescription and (e) regular monitoring of therapy, including attention to beneficial outcomes, adverse reactions, and patient adherence. The two major requirements in determining the dosage regimen are (1) understanding the pathophysiology of a health problem and matching it to the mechanisms of action of the relevant medicines and (2) assessing the benefit to harm balance of the therapy, although the difficulties in doing this in the individual are great. Id. (emphasis added). See also Parker v. Fidelity Security Life Ins. Co., No. CIV F 06-654 AWI DLB, 2007 WL 2688811, at *3 (E.D. Cal. Sept. 12, 2007) (highlighting the difficulty in properly prescribing medication to a person with mental health problems who "regularly took either too much or too little of his medication, and [] was difficult to keep [] on his prescribed level of medication," thus compounding the already present difficulties). mandates an awareness of the balance between over-prescription and underprescription, along with an appreciation for potential addiction and habituation. (8) Drug addiction is a state of periodic or chronic intoxication produced by the repeated consumption of a drug []. Its characteristics include: (1) an overpowering desire or need (compulsion) to continue taking the drug and to obtain it by any means; (2) a tendency to increase the dose; [and] (3) a psychic (psychological) and generally a physical dependence on the effects of the drug... Drug habituation (habit) is a condition resulting from repeated consumption of a drug. Its characteristics include: (1) a desire (but not a compulsion) to continue taking the drug from the sense of improved well-being which it engenders; (2) little or no tendency to increase the dose; [and](3) some degree ofphysic dependence on the effect of the drug, but absence of physical dependence and hence of an abstinence syndrome... Id. The Drug Enforcement Administration ("DEA") recognizes the need to guard the general public against the perils of prescription drug abuse, but also is not so naive as to ignore the fact that drug-seeking patients often try to scam their way into excess amounts of medication. (9) The DEA has alerted medical providers to their "professional responsibility to prescribe controlled substances appropriately, guarding against abuse while ensuring that... patients have medication available when they need it." (10) With that said, the vast differences in people's physiologies and psychologies (11) make finding an appropriate chemical equilibrium alarmingly difficult. Within that framework, this article addresses a much more serious challenge than sensing whether porridge is too hot or too cold, or which bed suits one best. Potential adverse outcomes resulting from claims against prescribing physicians run the gamut from significant jury verdicts to a career-ending loss of license.

I. Background

In order to more fully understand the issues practitioners face in this area, and to appreciate the potential legal exposure to the medical community, it is worth revisiting the underpinnings of any medical malpractice claim. "[M]odern tort law related to medical negligence claims has evolved from the principles of English common law, modified and changed by numerous court decisions and legislative statutes that vary from one state to another." (12) Medical malpractice is generally understood as a legal cause of action occurring when the care and treatment administered by a doctor or medical care provider falls below an applicable standard of care; meaning that...