Migraines, Pain, and Narcotics Contracts

What to Do if You're Terminated

Migraineurs and other chronic pain patients who use narcotics (opioids) are often asked to sign narcotics contracts, or treatment agreements, with their doctors. These contracts establish the rules for the doctor's prescribing narcotic pain medications. They require that the patient submit to random or scheduled drug testing to determine if they are taking the proper amount of the drug and that they are not taking any other pain medications or illicit drugs. If patients fail the test, these contracts allow the doctor to terminate care.

Who do these contracts protect?

Doctors can get into big trouble for over-prescribing controlled substances, or helping people with addiction or substance abuse issues get them. These contracts are an attempt to limit doctor's exposure to prosecution for misuse of controlled narcotics. Research shows that it's not usually chronic pain patients who abuse narcotics. Pain medication is widely under-prescribed, and pain undertreated. Do these contracts help patients at all? There is certainly a danger to narcotic medications, and strictly controlling the prescriptions may help some patients to avoid problems. I don't think the contract's main purpose is to protect patients, however. They do protect doctors, who are risking their professional standing if they prescribe narcotics without having a contract in place. Patients need doctors who are willing to treat them, so narcotics contracts may be a necessary evil.

Typically, the contracts require patients to:

  • have all of their pain medications prescribed by this doctor alone..
  • take the pain medication as directed, at the intervals directed, without variation
  • be subject to some type of drug testing, whether regular or random, to determine if they are taking the prescribed medication(s) as prescribed, and that they aren't using other medications or illicit drugs

Patients who are told they have violated their narcotics contract may be in a difficult position. If they take narcotic pain medication regularly, they may face withdrawal when their care is terminated. We frequently get questions from people who have been terminated without a referral to another treating physician, or without any help in getting ongoing care. What can you do if this happens to you?

What laws govern narcotics contracts?

Doctors are governed by licensing statutes, their own canons of medical ethics, and medical malpractice law. Both the licensing statutes and malpractice law are somewhat different from state to state. Abandonment is a concept of malpractice law that holds that a doctor cannot abandon a patient's care without warning and without giving the patient an opportunity to secure alternate medical care. This concept is common across jurisdictions, but the specifics are different from one jurisdiction to another.

Medical ethics and the law generally hold that once a doctor-patient relationship is established, the patient has a right to expect a certain standard of care, and the doctor cannot terminate the relationship except in certain specific circumstances.

The American Medical Association (AMA), in its Opinion 10.01 - "Fundamental Elements of the Patient-Physician Relationship" states:

"The patient has the right to continuity of health care. The physician has an obligation to cooperate in the coordination of medically indicated care with other health care providers treating the patient. The physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care."1

Case law in many American jurisdictions uses similar language to describe medical abandonment:

California: "[A]bandonment of a case by a physician without sufficient notice or adequate excuse is a dereliction of duty, and if injury results there from, the physician may be held liable in damages."2

District of Columbia: "Abandonment is the termination of the professional relationship between the physician and patient at an unreasonable time or without affording the patient the opportunity to procure an equally qualified replacement."3

New Jersey: "An abandonment consists of 'a failure by the physician to continue to provide service to the patient when it is still needed in a case for which the physician has assumed responsibility and from which he has not been properly relieved."4

Texas: "[A]bandonment generally means unilateral severance of professional relationship between doctor and patient without reasonable notice at time when there is still necessity of continuing medical attention."5

But what is "sufficient notice," "an unreasonable time," "properly relieved," or "reasonable notice?" The specifics vary from state to state, and termination of care under the terms of narcotics contract might be considered abandonment in one state, but not in the next. Doctors are advised to give plenty of notice in many books and articles on ethics and medical practice management. These recommendations typically say something such as:

"It is recommended that if a physician who for whatever reason no longer wishes to see a patient, and there is no emergency condition, give the patient written notice of the termination... The letter should also state that the physician will continue treatment for a reasonable time to allow the patient to find another physician to care for the patient. The physician does not need to find another physician for the patient but it is nice to at least give the phone number of the local medical society where the patient may find another physician."6

It's important to remember that these are recommendations to doctors on how to avoid getting into trouble with the law; they are not law in and of themselves. An often repeated rule of thumb is 30 days notice, with 30 days of emergency treatment. Thirty days should be "sufficient notice" to help a physician avoid a claim of abandonment. Does that mean you have a right to 30 days notice? Not necessarily. Some states define this by statute, most do not.

The danger is that in defining what is "sufficient notice," a contract between the doctor and patient which sets out the terms of that relationship, and gives the patient warning of the conditions for the doctor to terminate the relationship, might be held to be sufficient notice, if there is no statute requiring a certain amount of notice.

What can you do?

If your doctor terminates care without 30 days notice, what can you do about it? A law governing a professional relationship is not like a criminal law - you can't force a doctor change how they deal with you. The doctor may be violating medical malpractice standards, and you might be able to sue them. Is this any comfort? It will not get you the help you need right away.

  1. Start out with the right contract - Your best chance to change the outcome may be at the very beginning of the relationship. Read the narcotics contract carefully. Ask for an explanation of any parts you don't understand. If there are things you feel should be added to the contract, ask for them. Ask:
  • If you think I have violated the contract due to a test result, can I have a second test?
  • If you terminate the relationship because you think I have violated the contract, will you give me treatment for 30 days so I can find another physician?
  • If you terminate the relationship because you think I have violated the contract, will you give a 30 days supply of the medication so I don't go into withdrawal?
  • What steps will you take to make sure I don't go into withdrawal if you terminate the relationship?

If you want something added to the contract, ask for it. The doctor may or may not say yes, but a contract is a voluntary agreement, and both parties have a right to ask for terms they want. It's worth a try.

  1. Follow the contract exactly - Your next chance to avoid problems, is to follow the contract exactly. Karen Lee Richards at Chronic Pain Connection wrote a great article on Treatment Agreements: What You Need to Know Before Signing. There, you will read examples of well-meaning people who violated their narcotics contracts by:
  • giving some of their medication to a family member in pain;
  • cutting their own dosage down because the medication made them sleepy or had side effects;
  • taking medications prescribed by other practitioners (such as a dentist after oral surgery) without informing the pain management doctor, without telling the other practitioner of the narcotics contract, and/or without telling the other practitioner what medications they were already on.

You can avoid these problems. If you have any question about whether or not to take a medication, ask your doctor. Stay in communication with your doctor. Don't ever give your medication to anyone else; this is a federal crime. If you don't like side effects or how the medication makes you feel, discuss it with your doctor and ask him or her to change the dosage. Another potential issue is the use of illicit, so-called "recreational drugs." These will show up in the doctor's random or scheduled testing and are sure to result in the termination of your contract.

  1. If you've already been terminated, what can you do? First, stay calm. Get someone to help you write out what you need to say to the doctor. Even if you are going to speak to the doctor or their staff on the phone, write out the points you need to make ahead of time. For instance:
  • I did not violate the contract, for the following reasons...
  • I want a second test.
  • If you are going to end the relationship, I need 30 days to find alternate treatment and a 30-day supply of medication to keep me from going into withdrawal.
  • I understand that if you don't give me 30 days emergency treatment, it may be malpractice.

What if the doctor terminates the relationship and won't talk to you? If the doctor will not take or return your call:

  • Send them a fax. This gives proof that you communicated with their office, that the communication was received, and what you said.
  • If you still get no response, send a letter by certified mail. Keep a copy of the letter with the certified mail receipt stapled to it.
  • If neither of these gets a response, you may need to get a lawyer. Even without starting a lawsuit, a lawyer's letter or call will get noticed.

You could report the doctor, or threaten to report the doctor, to the state board of medical ethics. This may be enough to get the doctor's attention and have them give you a 30-day period to get alternate care.

If worst comes to worst, and you do go into withdrawal, you can get emergency room treatment for the withdrawal. Don't hesitate to seek emergency care if you need it.

If you sue the doctor for medical abandonment, it won't get you care immediately, but you may make new law for others faced with your situation.


Resources:

1 AMA Report: Issued June 1992 based on the report "Fundamental Elements of the Patient-Physician Relationship," adopted June 1990 (JAMA. 1990; 262: 3/33); Updated 1993.

2 Cole v. Marshall Medical Center, 2007 Cal. App. Unpub. LEXIS 4490 (California Unpublished Opinions 2007)

3 Hill v. Medlantic Health Care Group, 933 A.2d 314 (D.C. 2007)

4 Clark v. Wichman, 72 N.J. Super. 486 (N.J. Appellate Division 1962)

5 Lee v. Dewbre, 362 S.W.2d 900 (Tex. Civ. App. Amarillo 1962)

6 "Patient Selection and Abandonment," www.medicalaw.net, April 2001 newsletter.

This article is legal education, not legal advice. No attorney-client relationship is created.