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Drug-seeker lists are dangerous at best, require tight administrative controls
Attorney says avoid them altogether, others urge limited use
After you have security escort patient Joe Jones out of the ED for causing such a ruckus when he couldn’t get any Vicodin, you’re thinking you’d like to avoid this obvious drug seeker in the future. So maybe you should add his name to the list of frequent flyers or the kook book your staff keep at the nursing station.
Good idea? Not really. Though all EDs struggle with drug seekers and other disruptive patients, keeping a list can be the wrong way to go, say legal and ED experts. The list and how it’s used can create tremendous legal liabilities and may not accomplish much for your ED anyway, they say.
At the very least, you should implement strict controls on how that list is kept and used, says Joel Geiderman, MD, FACEP, co-chair of the ED at Cedars-Sinai Medical Center in Los Angeles. The Cedars-Sinai ED keeps a list but only with tight restrictions.
"There are a lot of ethical problems with the way these lists can be used," he points out. "These things kind of creep into EDs, and you have a list before you realize it. They’re fairly widespread, but people just don’t talk about them much."
Many EDs keep such lists, but it is usually done informally, without official approval or disapproval from management, says Frederick Schiavone, MD, FACEP, professor of clinical emergency medicine and associate dean of clinical education at Stony Brook (NY) University Hospital. Schiavone discourages keeping such lists because of all the difficulties they pose with confidentiality concerns and the potential for distracting providers from proper treatment.
"Any time you label patients, the labeling ends up working against us, because you label someone to deny them resources, not to give them more resources," he explains.
Stony Brook’s ED does not keep lists of drug seekers. Schiavone says the lists tend not to be very useful for EDs anyway, so the risks and difficulties probably aren’t worth the trouble. It is more likely that the list will lead you to deny pain medication to those patients when they really need it or misdiagnose a legitimate complaint just because you have that person on a list.
After all, he points out, drug seekers and frequent flyers can have an aortic dissection or back injury, just like everyone else. If you fail to detect the problem and treat it, you’re not off the hook just because you thought the patient was crying wolf again.
According to Geiderman, the lists probably aren’t needed as much as some people think. Drug seekers and other frequent flyers aren’t as common as most ED staff believe, he says. It’s just that they’re especially frustrating and so they make an impression on staff.
Establish tight controls
Geiderman and Schiavone say they’re not necessarily in favor of keeping lists, but they acknowledge that ED staff tend to keep them informally if management doesn’t say otherwise. That’s why they recommend prohibiting the practice outright or instituting tight controls on how such lists can be kept.
The first rule, they say, is that only physicians can put someone on the list.
The biggest problem with letting staff keep a list is that you lose control of what goes on the list, notes Schiavone.
"All you have to do is have one person put something egregious in the list, and it becomes part of a legal document; and you have tremendous legal and ethical issues that will arise," he says. "Keep it to only physicians, and make it very clear that only factual information can be included — no judgments or personal criticisms."
The list also should be secured in a way that only physicians can consult it, with a computer password, for instance. The goal is to make the list a resource that will help physicians provide better care, not a blacklist that cuts the person off from proper care, Schiavone says.
The list can help improve care if it keeps track of what physicians have already done for the patient, what recommendations and referrals already have been made, and what medications work and don’t work for the patient’s pain.
Those are some of the precautions taken with the list at Cedars-Sinai, Geiderman adds. Any process you establish should be approved by your hospital’s legal counsel, he advises.
Huge legal risk
Lists of drug seekers, or any other type of frequent flyers, can lead to serious legal problems, says Grena Porto, RN, ARM, DFASHRM, a health care risk manager and principal with QRS Healthcare Consulting in Pocopson, PA, and past president of the Chicago-based American Society for Healthcare Risk Management.
Keeping a list is "hazardous at best," she says.
Though such records could, in theory, improve patient care by alerting physicians and staff to a patient’s background and particular needs, they more often will lead to a bias against the patient, she says.
And that situation relates to another problem with lists: You’re creating a record that can be used against you. No one can stop your staff from keeping a mental record of who shows up often asking for drugs, but when you put it on paper or the computer, you create a record that can be subpoenaed.
Defamation is another potential problem. Porto says a plaintiff could make a good case that being on the list amounts to defamation because you are accusing him or her of abusing drugs.
If you decide to keep such a list despite the legal risks, you absolutely never should share that list with anyone else, she advises. Don’t share lists with your sister hospital across town, and don’t confirm to anyone else that someone is on your list.
"It’s bad enough having the list in your own ED, but when you start broadcasting it to the community, you’re just asking for trouble," Porto says.
Though most EDs would not use the list to keep people from even being triaged and examined, Porto points out there still is a risk that the list could lead to violations of the Emergency Medical Treatment and Labor Act (EMTALA) or other charges of discrimination.
Even if your staff are savvy enough to provide the required medical screening examination for drug seekers, just like anyone else, being on the list could give them ammunition if they allege an EMTALA violation.
Geiderman underscores Porto’s point that a list of drug-seeking patients must never be used to keep those people from obtaining a proper evaluation.
Most EDs wouldn’t make that mistake, he says, but it might not be a big leap for a staff member to realize that someone is on the list and then give him or her short shrift during the evaluation.
That’s why educating staff and physicians about proper use of the list, including what it does and doesn’t mean, is so important, he says. But no matter how hard you try to manage the list, don’t expect your hospital’s risk manager to be happy about it.
Porto says her bottom line recommendation is that EDs not keep lists of drug seekers or other frequent visitors.
"Each patient and each case has to be evaluated individually," she says. "Even patients who you know are drug users and trying to get drugs from you, each time they come they are entitled under the law to an unbiased, brand-new assessment of their situation."
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