- Email: [email protected]
Keeping lists and naming names: habitual patient files for suspected nontherapeutic drug-seeking patients
ETHICS/CONCEPTS
Keeping Lists and Naming Names: Habitual Patient Files for Suspected Nontherapeutic Drug-Seeking Patients
Joel Martin Geiderman, MD From the Ruth and Harry Roman Emergency Department, Department of Emergency Medicine, and the Cedars-Sinai Center for Health Care Ethics, Burns and Allen Research Institute, Cedars-Sinai Medical Center, Los Angeles, CA.
Emergency departments commonly keep files of patients who are suspected of frequently visiting them and fabricating symptoms to obtain prescription drugs, usually opioids, for nontherapeutic purposes. Such files have previously been given names such as “frequent flyer file,” “repeater log,” “kook-book,” “problem patient file,” “patient alert list,” or “special needs file.” Little has been written about the ethical, legal, and regulatory considerations that should be taken into account when establishing, maintaining, and using such files. This article explores these issues. The term “habitual patient files” is proposed because it is descriptive without being judgmental. [Ann Emerg Med. 2003;42:873-881.]
Copyright © 2003 by the American College of Emergency Physicians 0196-0644/2003/$30.00 + 0 doi:10.1067/mem.2003.210
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
8 7 3
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
INTRODUCTION
Files of patients who habitually frequent a hospital’s emergency department are commonly maintained in the ED.1 Such files have various names including “frequent flyer file,” “repeater log,” “kook-book,” “problem patient file,” “patient alert list,” and the euphemistic “special needs file.”1-5 In general, the purpose of these is to keep a record, separate from the routine medical record, of patients who are suspected of overusing the ED for nontherapeutic purposes—usually to obtain drugs, such as opioids or benzodiazepines, for feigned illness, recreational use, dependency, resale, or similar indication.3* The contents of these files are intended to be referenced by ED staff when the patient presents to the same ED again in the future. One study that examined such files found that 58% of all EDs in Iowa that were staffed by full-time emergency physicians maintained them, and 97% (37 of 38) reported that they shared information contained in them with each other by telephone on a routine basis.1 Another study found that at least 6 of the 16 hospitals in metropolitan Portland, OR, either “officially or unofficially” maintained such a list.5 Despite their ubiquity, little has been written about these files in either the clinical or administrative literature of emergency medicine.1,2,5,8-10 Whether or not they serve a useful purpose has not been fully studied in the literature, is open to debate, and is not addressed in this article. Nevertheless, the frequency of their use mandates an examination of certain issues surrounding these files. This article describes the ethical, legal, and regulatory considerations that should be considered when
*Individuals
who feign illness or fabricate symptoms to gain drugs for recreational use or resale have previously been termed “fabricating drug-seeking patients” in contradistinction to “drug-seeking patients,” a group that includes both fabricating drug-seeking patients and nonfabricating patients who seek drugs for other reasons.2 Because some patients who “seek drugs” need them for legitimate purposes and because the label “drug-seeking patients” has become pejorative and has sometimes led to the inappropriate treatment of patients,6,7 the author proposes the term “nontherapeutic drug-seeking patients” for the group that includes fabricating drug-seeking patients and those who otherwise seek drugs for abuse or to satisfy an addiction.
8 7 4
establishing, maintaining, and using files of this nature. The term “habitual patient files” is proposed because it is descriptive without being pejorative or otherwise judgmental. E T H I C A L C O N S I D E R AT I O N S
In contemplating habitual patient files, the bioethical principles of beneficence, nonmaleficence, autonomy, distributive justice, confidentiality, and truth telling must all be considered, as must the notion of professionalism.11,12 Physicians are obliged to confer benefit to patients by treating pain and ameliorating suffering. They must also assure that harm does not come to patients as a result of either undertreating or inappropriately labeling them.6 A further obligation is to protect susceptible patients from the consequences of abusing or becoming addicted to drugs. When there is doubt about whether a patient’s pain is real, and this still remains uncertain despite the physician’s best effort to determine this, it is morally superior to administer an analgesic agent to a patient who does not actually need it rather than withhold or unreasonably delay treatment from a person who is truly suffering.6,13 Strict adherence to the principle of patient autonomy might lead one to conclude that patients’ requests for medications should always be honored, but this would run counter to the laws and the prevailing attitudes and norms of the United States. Physicians have a societal duty to be the stewards of limited resources and to allocate them fairly among all members of society.14,15 This obligation arguably extends to preventing improper visits to the ED. It has been estimated that an ED serving a population of 75,000 patients per year may expect up to 262 monthly visits from fabricating drug-seeking patients.2 In the era of severe ED crowding and saturation,16-18 discouraging inappropriate usage will help ensure that those who are most in need will be able to gain access to the ED in the most timely manner.19 The duty to protect patient confidentiality—that is, not reveal to a third party that which is revealed to the physician during a patient encounter—has been recog-
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
nized since antiquity, as summarized in the Hippocratic dictum: “What I may see or hear in the course of treatment or even outside of the treatment in regard to the life of men … I will keep to myself, holding such things shameful to be spoken about.”20 In modern times, it is held that this duty can be overridden by the duty to protect a third party from harm, especially when there is a specific and credible threat to an identified individual.1,21-23 Whether or not this right and obligation to override physician-patient confidentiality extends (on a legal basis) to an action that is viewed as merely benefitting society as a whole is not clear, nor is it clear whether or not doing so is ethically acceptable. The Code of Ethics of the American Medical Association states that: “The physician should not reveal confidential communications without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or the public interest (italics added).”24,25 The American College of Emergency Physician’s ethics code is less expansive, stating that emergency physicians shall “… disclose confidential information only with the consent of the patient or when required by an overriding duty such as the duty to protect others or to obey the law.”14 Veracity is an obligation accorded to both patients and physicians by accepted ethical codes.14,26 Patients have a responsibility to be truthful as to the reasons they are seeking care and what their actual physical and emotional needs are. Physicians must be honest about their suspicions, conversations they may have had with other health care providers, reasons for denying requests for drugs, and plans for sharing this information with colleagues or for entering it into either the medical record or a habitual patient file. It is important to emphasize that these obligations are independent rather than reciprocal (ie, the physician or nurse is obligated to be honest with a patient even when the patient is being deceptive). Finally, professionalism demands that medical personnel treat patients with dignity at all times, regardless of their complaint, disease, hygiene, lifestyle, habits, or circumstances.12 Pejorative and demeaning labels27 that are sometimes used to refer to habitual patients in the ED can be damaging to both patients and to the pro-
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
fession, cannot possibly provide benefit, and must be strongly discouraged and condemned by the medical community.6,28-31 L E G A L A N D R E G U L AT O R Y C O N S I D E R AT I O N S
Common law doctrine recognizes that people have both the desire and right to keep private matters to themselves. Confidentiality of medical information is presently of great concern, as evidenced by recent federal and state debates on patient’s bills of rights and other legislation. At the federal level, there is the Health Insurance Portability and Accountability Act of 1996 (HIPAA), discussed in the following paragraphs. At the state level, most states have passed laws that provide strong incentives to protect medical confidentiality.32 It is reasonable to assume that, in the current environment, states with weak or lacking medical confidentiality laws may pass new laws in the coming legislative periods. In general, federal and state statutes addressing privacy recognize that, in addition to the patients’ right to medical confidentiality, there are competing interests, including the free exchange of medical information among physicians and other providers, the processing of medical claims, and the public’s right to an efficient health care system.32 Additionally, these laws generally recognize the duty to override patient confidentiality under certain circumstances, such as the protection of third parties and to report certain medical conditions or mechanisms of injury.22,23,33 Confidentiality laws usually provide for penalties for the inappropriate release of confidential medical information. Statutes are drafted differently from state to state32 and therefore cannot be exhaustively detailed in this paper. Emergency physicians should be familiar with their state laws. When establishing habitual patient files, it is recommended that a hospital or other health care attorney with expertise in privacy issues be consulted to assure that the process conforms to state as well as federal law. In California, the Confidentiality of Medical Information Act34 (referred to herein as the “Act”) establishes protections to preserve the confidentiality of
8 7 5
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
medical information and specifies that a health care provider may not disclose medical information unless the disclosure is authorized by the Act, by other laws, or by patients in accordance with the requirements of the Act.35 The Act provides for a number of exceptions to the requirement that authorization from a patient be obtained and specifies that the disclosure to other providers be for the “purposes of diagnosis or treatment of the patient.”36 Thus, the model discussed below is careful to collect and document information on habitual patients for the purpose of diagnosis and treatment of patients and to provide that any disclosure to the patient’s primary care physician is made in accordance with the Act and other applicable legal requirements. The risks to a physician of inappropriate disclosure under California law are, as is likely the case in other states, regulatory penalties such as fines, licensure actions, accreditation deficiencies, and suits by the patient. With respect to the regulatory penalties in California, a physician who knowingly and willfully obtains, discloses, or uses medical information in violation of the Act is liable for a fine or civil penalty ranging from $2,500 for the first offense to $25,000 for a third or subsequent violation. If the use is for the purpose of financial gain, these penalties increase to $5,000 to $250,000, respectively.37 It is theoretically possible for a patient to bring a suit against an emergency physician in relationship to the use of a habitual patient file. Whether suits will be successful will depend on applicable state and federal law and whether the implementation of the habitual patient file complied with the law. Additionally, a suit would be more likely to succeed if the patient were able to demonstrate reckless conduct or prejudice on the part of the physician. An online search using Westlaw (West/The Thomson Corporation, Eagan, MN), a legal research tool that accesses 17,000 databases of information and that searched all cases in all states, failed to reveal any cases related to the use of habitual patient files as of November 2002. State laws may also be relevant with respect to requirements for the provision of medications including,
8 7 6
in particular, controlled substances. Again, a complete discussion of these laws is beyond the scope of this article. However, one benefit of habitual patient files may be to reduce prescription fraud. Thus, a brief mention of relevant California laws may be instructive and provide support for the merits of habitual patient files. In California, a patient may be subject to prosecution for prescription fraud if the patient seeks to obtain a controlled substance using fraud or misrepresentation of the patient’s condition to the prescriber. 38 California’s prescription laws go on to provide that physicians may not provide controlled substances to addicts or habitual users, except in limited circumstances. Penalties for violations are substantial. 39 Habitual patient files might, arguably, assist physicians in complying with prohibitions on aiding addicts in obtaining drugs. Finally, California prescribers must maintain a record that shows the “pathology and purpose” of the prescription. 40 Habitual patient files are a tool that might assist physicians in determining whether there is an appropriate purpose for a requested medication. On the federal level, HIPAA, portions of which are scheduled to take effect in 2003, will provide federal regulation of the rights to medical privacy and confidentiality, as well as security of health information.41 EDs should be mindful of HIPAA as they develop policies for habitual patient files. A full discussion of HIPAA is beyond the scope of this article, but a few brief observations are relevant. At the present time, there are generally no restrictions on sharing medical information between physicians for treatment purposes.42,43 Thus, policies establishing and governing habitual patient files should provide evidence that they are created and maintained for treatment purposes. In addition to the treating providers, HIPAA may permit access to patientspecific information by other members of the health care team on a basis that makes available minimally necessary information needed to accomplish a permitted purpose.44,45 Note also that HIPAA may permit a patient to review, and in some circumstances amend, information on him or her contained in the habitual
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
patient file; accordingly, entries should be made with this in mind.46,47 No legal review of ED issues is complete without considering implications of the Emergency Medical Treatment and Labor Act (EMTALA), which has evolved into a complex series of regulations since it was first enacted in 1986.48 At its core, it is designed to guarantee equal and unfettered access to emergency medical care. More specifically, patients are entitled to receive a medical screening examination and stabilization care without unnecessary delay because of financial considerations. No process that is established to deter nontherapeutic drug-seeking behavior, such as the establishment of habitual patient files, should be structured so as to limit access on the basis of patient financial status. In providing stabilization care, however, it must be left to the health care professional, rather than the patient, to choose among the best options for treatment and to assure beneficial rather than harmful care. Nothing in EMTALA requires treatment with opioids. At the current time, the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) does not have a specific standard governing the use of habitual patient files, although patient privacy and confidentiality have been a focus of recent JCAHO surveys, specifically with regard to the visibility of patient names and medical information on “whiteboards” or computer screens. The JCAHO standards manual states that the hospital must “demonstrate respect” for privacy and confidentiality. More specifically, an example of implementation of this standard states that, “Policies and procedures, based on applicable law and regulation, [should] address confidentiality of patient information.”49 The JCAHO standards also state that a patient has the right to “appropriate assessment and management of pain.”50 During a JCAHO survey, it should be demonstrable that “the organization plans, supports, and coordinates activities and resources to assure the pain of all patients is recognized and addressed appropriately.” Maintenance and use of a properly designed habitual patient file may be helpful in this area, whereas a haphazard system could raise concerns.
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
E S TA B L I S H I N G , M A I N TA I N I N G , A N D U S I N G A H A B I T U A L PAT I E N T F I L E
It is essential to have a system of checks and balances when deciding to enter a patient in a habitual patient file. A mechanism should be in place to assure that patients are not entered arbitrarily. High evidentiary standards should exist as demonstrated in the following examples: (1) patients whose private physicians have verified a pattern of drug abuse or nontherapeutic drugseeking behavior; (2) patients with numerous visits for a panoply of subjective painful conditions that are always accompanied by a request for a specific analgesic regimen (along with outpatient prescriptions) and who often claim a long list of undocumented drug allergies (eg, ketorolac, ibuprofen, reglan, dihydroergotamine, and sumatriptan); (3) repeated claims to various physicians of lost or stolen prescriptions; (4) a pattern of making verbal contracts with treating physicians that are not kept, including assurances that the patient has a follow-up appointment with a particular type of specialist on a specific date (eg, “next Tuesday”) and in fact these never occur; or (5) discovery of a patient who is rifling through drawers, evidently to steal needles or syringes. Other scenarios may also strongly suggest, to a reasonable degree of certainty, the existence of nontherapeutic drug-seeking behavior.3,51 Patients should not be entered into the habitual patient file solely on the basis of either a large number of visits or visits that are skewed in frequency to the off hours. For example, patients with recurrent sickle cell crises may have numerous visits to the ED accompanied by requests for analgesia, but the majority would be misserved by terming them fabricating drug-seeking patients (unless there is ample evidence that they were feigning symptoms to satisfy an addiction).52,53 It has been demonstrated that chronically ill patients not only use EDs more frequently than the general population, but that they are also high users of other health care services.54 Because the ED is the venue of last resort and the safety net of the medical system, underinsured patients might logically be expected to rely on the ED as
8 7 7
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
the only venue at which to find care.55,56 Patients who are impoverished, homeless, illiterate, or psychiatrically disturbed may rely on the ED exclusively for care.8,53,57 Finally, because the majority of the week is “after hours” from the private office or clinic perspective, it is logical that patients with chronic diseases might seek care more often at these times. Habitual patient files can also be used to store information about patients who should be treated in a particular manner. For instance, a patient’s private physician may request that a patient be treated with a particular regimen or may verify that a patient’s needs for analgesia are legitimate. Other special instructions may also be conveyed. An accountable, qualified individual or committee should be tasked with approving entries into the habitual patient file. Each and every physician or nurse in a department or hospital should not be allowed to arbitrarily enter patients into the habitual patient file on the basis of personal suspicions or hunches.1 The common practice of a health care worker noting a patient’s number of previous visits and placing this information on the chart, sometimes even before the patient is evaluated by the physician, should also be discouraged. This activity labels patients and prejudices caregivers and could affect the way a patient is addressed or treated.6 The habitual patient file must be stored in a secure location and should be viewed in private. Access should be limited to authorized personnel. It is not permissible for it to be in the open for nonauthorized personnel to see or browse. This should be set forth in an established policy, consistent with state and federal law. Sharing the information contained in the habitual patient file with outside parties without the patient’s consent is not permissible.10,58,59 THE CEDARS-SINAI MEDICAL CENTER MODEL
The following is a model that is used at Cedars-Sinai Medical Center. When a patient is suspected of seeking controlled substances for nontherapeutic purposes on the basis of the type of evidence cited previously, their
8 7 8
name is forwarded to the semi-weekly attending physicians’ meeting. Patients referred to the physician meeting are discussed in a confidential manner. All previous ED charts pertaining to the patient are available for review. After the reason for referral is presented, input is sought from other members of the group, a discussion follows, and a consensus is reached as to whether or not the patient should be entered into the habitual patient file. If a patient is discussed at the physicians’ meeting and the decision is that it is in the patient’s best interest to continue to receive the drug in question, this information is also entered into the electronic habitual patient file so that the file not only proscribes treatment, but also prescribes treatment. The habitual patient file is maintained in an electronic format available for viewing by any of the group’s emergency physicians in a confidential folder on the hospital’s intranet. Access to these files is password protected, limited to the hospital’s emergency physicians, and available from workstations throughout the ED. In addition, a firewall protects the information from outside viewers, and any information that passes beyond the firewall is encrypted in a secure code. Unlike entries into the medical record that may be viewed by any health care professional with appropriate clearance to them (as well as by insurance companies and employers in some cases), access to these files is restricted to emergency physicians with preapproved access. Consultation of the habitual patient file serves as a resource only. Whereas the sending of mixed messages should be discouraged, each physician is free to exercise his or her own judgment in any particular circumstance. In fact, physicians are morally obligated to do what is deemed best for each patient at any moment and must not be bound by any other perceived or actual obligation. Requests from other providers or institutions for information from the habitual patient files are not honored (an exception may be made for a private medical physician with an established relationship with the patient). Generally, medical information from the chart can only be shared with the permission of the patient.
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
DISCUSSION
The maintenance and use of habitual patient files appears to be common, according to both anecdotal accounts and as evidenced by a published survey that demonstrated that the majority of EDs in a small Midwestern state used them.1 The authors of that study also note that, in their rural state, most habitual patients are well known to ED staff without a file, and they postulate that “problem patient” files may be even more common in larger states. This study also found that information from these files was shared with outside hospitals frequently and freely (97% of respondents), and policies governing their use was rare (5% to 14% of respondents).1 It is probable that widely used habitual patient files exist without any formal approval and that their existence is generally unknown to medical staffs, ethics committees, hospital administrators, and others with a legitimate interest in knowing about them. Policies and procedures governing the use of these files are unlikely to exist at most institutions. It is suggested that any process that is established to maintain habitual patient files should be transparent to the aforementioned stakeholders and subject to both an approval process and quality assurance review. Habitual patient files should not remain a “dirty little secret” kept in a dark corner of the ED, known only to specialty insiders. It is also recommended that a hospital attorney be consulted to assure that the process conforms to state and federal law. Our ED uses a committee (of the whole) of emergency physicians to approve or disapprove of entries into the habitual patient file on the basis of evidence gleaned from medical records, treating clinicians, and other sources. In especially difficult cases, usually involving patients with complex medical diseases who may also be drug addicted or suffer from a psychiatric illness or personality disorder, multidisciplinary input is also sought from psychiatrists, addictionologists, social workers, case managers, risk management personnel, or other relevant parties who are invited to attend the meeting. Routinely involving these individuals at meetings might appear desirable but is logistically
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
difficult. Additionally, in many cases these parties would have little to add outside of approval of the process as a whole. An advantage of an electronic system is that the file can be viewed in private at any of the department’s computer terminals and, unlike the traditional notebook, cannot get lost or misplaced. In our system, storage of information is organized on the basis of internal memos detailing the decisions that were reached by the committee regarding these patients. One reason that patients are entered into our system in this manner is that, because decisions are made outside of the process of providing care, entering the information directly into the medical record is awkward. However, if requests for medications are refused at the time of later ED visits, the denial is recorded in the medical record for that date. Currently, many hospitals have robust information systems that store medical records that are easily retrievable. Such systems may also be suitable for storing information about nontherapeutic drug-seeking patients. In fact, some would argue that medical records reflecting information about nontherapeutic drugseeking patients that can be viewed by subsequent treating physicians are more desirable. Furthermore, such storage would allow physicians who practice in multifacility hospital systems to access these files from any location in which the patient might seek care. A shortcoming of routinely using the medical record for this activity is that it provides a wider range of access to those who may not be authorized to share this information. Sharing information from habitual patient files with other providers should be approached with great caution. If we believe that our actions are in the best interests of the patient and society, sharing is desirable. However, given the nonroutine nature of sharing such information, each party should recognize that the sharing of patient information may be held up to special scrutiny, and thus a compelling clinical need for treatment purposes should be documented by the physicians. In addition, this can only be done within the limits of federal and state law. If a patient consents to inquiries by one ED to another ED or the patient’s usual
8 7 9
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
physician, most risk-management and legal concerns would be addressed. In California, sharing information for the purposes of treatment is permissible, and disclosure to a primary care physician that a patient has been entered into a habitual patient file would be permitted in some circumstances. Policies on sharing information from habitual patient files should be carefully scrutinized and approved by a hospital attorney. L I M I TAT I O N S A N D F U T U R E Q U E S T I O N S
It has never been demonstrated that habitual patient files are effective in reducing ED visits by suspected nontherapeutic drug-seeking patients or that the treatment regimen for these patients is subsequently altered. One small retrospective study (24 patients in 6 hospitals) conducted in 1990 suggests just the opposite.5 Further study in this area is warranted. Other unanswered questions include the following: Does the use of these files have any effect on the care of patients seeking care for legitimate complaints? Are patients who have been told that their name has been placed in the habitual patient file reluctant to return to the same ED for other illnesses or other treatment regimens? If the file is routinely queried when patients either require large doses of analgesic agents, carry certain diagnoses, or appear “suspicious,” how does the presence of the habitual patient file alter provider attitudes toward the entire universe of patients requiring pain relief in that ED? How do subsequent health caregivers even know to query the habitual patient file for a particular patient? And is there bias regarding which patients come under suspicion? All of these questions deserve study. Finally, even if the use of habitual patient files reduces visits by nontherapeutic drug-seeking patients to the index ED, it is likely that this will do little toward resolving the abuse and addiction problems of most of these patients. It is more probable that they will simply go elsewhere to satisfy their needs or desires. As a result, the net burden to society will remain unchanged. It would seem that what is necessary to help solve the scourge of drug abuse and addiction is a coordinated
8 8 0
and comprehensive program of education, identification, and treatment.60 Legislative, regulatory, and other (eg, organized medicine ethics committees) assistance and guidance on how information could and should be shared would also be useful. In the meantime, if EDs use habitual patient files, they are obligated to ensure that they are used ethically, legally, and humanely and do not result in harm to patients. I thank Robin Prendergast, Esq., of K&R Law Group (Los Angeles and Sacramento, CA) for her review and guidance with respect to the legal issues discussed in this manuscript. Received for publication May 28, 2002. Revisions received August 11, 2002; October 25, 2002; and November 27, 2002. Accepted for publication November 30, 2002. The author reports this study did not receive any outside funding or support. Address for reprints: Joel M. Geiderman, MD, Department of Emergency Medicine, Cedars-Sinai Medical Center, 8700 Beverly Boulevard, Room 1110, Los Angeles, CA 90048; 310-423-8780, fax 310-423-0424; E-mail [email protected].
REFERENCES 1. Graber MA, Gjerde C, Bergus G, et al. The use of unofficial “problem patient” files and interinstitutional information transfer in emergency medicine in Iowa. Am J Emerg Med. 1995;13:509-511. 2. Trotter G. Calling other emergency departments about suspicious patients. In: Iserson KV, Sanders AB, Mathieu D, eds. Ethics in Emergency Medicine. 2nd ed. Tucson, AZ: Galen Press; 1995:180-186. 3. Longo LP, Parran T, Johnson B, et al. Identification and management of the drugseeking patient. Am Fam Physician. 2000;61:2401-2408. 4. Schaulis MD, Snoey ER. Three years, a thousand visits: a case study of the ultimate frequent flyer. Ann Emerg Med. 2001;38:87-89. 5. Zechnich D, Hedges JR. Community-wide emergency department visits by patients suspected of drug-seeking behavior. Acad Emerg Med. 1996;3:312-317. 6.
Geiderman JM. Sympathetic dystrophy. Ann Emerg Med. 2001;37:412-414.
7.
Greengold NL. A piece of my mind. By the numbers. JAMA. 1994;271:890.
8. Purdie FR, Honigman B, Rosen P. The chronic emergency department patient. Ann Emerg Med. 1981;10:298-301. 9. Saarmann L. Is it live or is it Memorex? Dealing with patients with somatoform or factitious disorders in the emergency department. Top Emerg Med. 1992;14:43-57. 10. Larkin GL, Moskop J, Sanders A, et al. The emergency physician and patient confidentiality: a review. Ann Emerg Med. 1994;24:1161-1167. 11. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. 4th ed. New York, NY: Oxford University Press; 1994. 12. Adams J, Schmidt T, Sanders A, et al. Professionalism in emergency medicine. Acad Emerg Med. 1998;5:1193-1198. 13. Geiderman JM. Geiderman’s rules for emergency physicians. Top Emerg Med. 1986;8:viii. 14. American College of Emergency Physicians. Code of ethics for emergency physicians. Dallas, TX: American College of Emergency Physicians; 2002.
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
15. Larkin GL, Moskop J, Weber JE. Resource utilization in the emergency department: the duty of stewardship. J Emerg Med. 1998;16:499-503. 16. Derlet RW, Richards JR. Overcrowding in the nation’s emergency department: complex causes and disturbing effects. Ann Emerg Med. 2000;35:63-67. 17. Derlet RW, Richards JR, Kravitz RL. Frequent overcrowding in US emergency departments. Acad Emerg Med. 2001;8:151-155. 18. Viccello P. Emergency department overcrowding: an action plan. Acad Emerg Med. 2001;8:185-187. 19. Thornquist L, Biros M, Olander R, et al. Health care utilization of chronic inebriates. Acad Emerg Med. 2002;9:300-308. 20. Microsoft Encarta [database online]. Hippocratic oath. Redmond, WA: Microsoft Corporation; 1994. 21. Davis D. Legal trends in bioethics. J Clin Ethics. 1992;6:187-192. 22. Tarasoff v Regents of the University of California, 17 Cal. 3d. 425 (1976). 23. Lundgren v Schultz, 345 N.W. 2d, 25 (Minn) 1984.
49. Joint Commission on Accreditation of Healthcare Organizations. Confidentiality. In: Comprehensive Accreditation Manual for Hospitals: The Official Handbook. Oakbrook Terrace, IL: Joint Commission on Accreditation of Healthcare Commissions; 1999:Standard RI 1.3.6.1.1. 50. Joint Commission on Accreditation of Healthcare Organizations. Patient rights and organization ethics. In: Comprehensive Accreditation Manual for Hospitals: The Official Handbook. Oakbrook Terrace, IL: Joint Commission on Accreditation of Healthcare Commissions; 1999:Standard RI 1.2.9. 51. Parran T. Prescription drug abuse. A question of balance. Med Clin N Amer. 1997;8:967-978. 52. Kne T, Young R, Spillane L. Frequent ED users: patterns over time. Am J Emerg Med. 1998;7:648-652. 53. Mandelberg JH, Kuhn RE, Kohn MA. Epidemiologic analysis of an urban public emergency department's frequent users. Acad Emerg Med. 2000;6:637-646. 54. Hansagi H, Olsson M, Tomson Y. Frequent use of the hospital emergency department is indicative of high use of other health care services. Ann Emerg Med. 2001;37:561-567. 55. Spillane LL, Lumb EW, Cobaugh DJ, et al. Frequent users of the emergency department: can we intervene? Acad Emerg Med. 1997;4:574-580.
24. Council on Ethical and Judicial Affairs, American Medical Association. Fundamental elements of the patient-physician relationship [Opinion 10.01]. American Medical Association Web site. Available at: http://www.ama-assn.org/ama/pub/category/2510.html. Accessed March 31, 2003.
56. Lucas RH, Sanford SM. An analysis of frequent users of emergency care at an urban university hospital. Ann Emerg Med. 1998;32:563-568.
25. American Medical Association. Code of Medical Ethics: Current Opinions. Chicago, IL: American Medical Association; 2000:xliv.
57. Philossoph-Gelb S, Mower WR, Ajaelo I, et al. Psychosocial difficulties and emergency department use. Acad Emerg Med. 1997;4:589-592.
26. American Medical Association. Code of Medical Ethics: Current Opinions. Chicago, IL: American Medical Association; 2000:110-11.
58. Siegler M. Confidentiality in medicine: a decrepit concept. N Engl J Med. 1982;307:1518-1521.
27. Kresovich R, Krome R, Sellman G. The emergency department groupies. JACEP. 1974;3:81-84.
59. Welch CA. Sacred secrets: the privacy of medical records. N Engl J Med. 2001;345:371-372.
28. Simon JR, Dwyer J, Goldfrank LR. The difficult patient. Emerg Med Clin N Amer. 1999;17:354-371.
60. Ovens HJ, Chan BTB. Heavy users of emergency services: a population-based review. CMAJ. 2001;165:1049-1050.
29. Nelson AR. Medicine: business or profession, art or science? Am J Obstet Gynecol. 1998;178:755-758. 30. Geiderman JM. Physician complicity in the Holocaust: historical review and reflections on emergency medicine in the 21st century, Part II. Acad Emerg Med. 2002;9:232240. 31. Geiderman JM. Requiem for a repeater. Ann Emerg Med. 2002;39:688-690. 32. George JE. Confidentiality and reporting. In: Salluzzo RF, Mayer TA, Strauss RW, et al, eds. Emergency Department Management. St. Louis, MO: Mosby; 1997. 33. Knopp RK, Satterlee PA. Confidentiality in the emergency department. Emerg Med Clin N Amer. 1999;17:386-396. 34. California Civil Code, Section 56 et seq. 35. California Civil Code, Section 56.10. 36. California Civil Code, Section 56.10(c)(1). 37. California Civil Code, Section 56.36. 38. California Health and Safety Code, Section 11173(a). 39. California Health and Safety Code, Section 11371. 40. California Health and Safety Code, Section 11190. 41. 45 CFR Part 164. 42. 45 CFR Section 164.502(a). 43. 45 CFR Section 164.506(c)(2). 44. 45 CFR Section 164.502(b)(1). 45. 45 CFR Section 164.506(c)(1). 46. 45 CFR Section 164.524. 47. 45 CFR Section 164.526. 48. 42 USC Section 1395dd, 42 CFR Section 489, et seq.
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
8 8 1
Keeping Lists and Naming Names: Habitual Patient Files for Suspected Nontherapeutic Drug-Seeking Patients
Joel Martin Geiderman, MD From the Ruth and Harry Roman Emergency Department, Department of Emergency Medicine, and the Cedars-Sinai Center for Health Care Ethics, Burns and Allen Research Institute, Cedars-Sinai Medical Center, Los Angeles, CA.
Emergency departments commonly keep files of patients who are suspected of frequently visiting them and fabricating symptoms to obtain prescription drugs, usually opioids, for nontherapeutic purposes. Such files have previously been given names such as “frequent flyer file,” “repeater log,” “kook-book,” “problem patient file,” “patient alert list,” or “special needs file.” Little has been written about the ethical, legal, and regulatory considerations that should be taken into account when establishing, maintaining, and using such files. This article explores these issues. The term “habitual patient files” is proposed because it is descriptive without being judgmental. [Ann Emerg Med. 2003;42:873-881.]
Copyright © 2003 by the American College of Emergency Physicians 0196-0644/2003/$30.00 + 0 doi:10.1067/mem.2003.210
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
8 7 3
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
INTRODUCTION
Files of patients who habitually frequent a hospital’s emergency department are commonly maintained in the ED.1 Such files have various names including “frequent flyer file,” “repeater log,” “kook-book,” “problem patient file,” “patient alert list,” and the euphemistic “special needs file.”1-5 In general, the purpose of these is to keep a record, separate from the routine medical record, of patients who are suspected of overusing the ED for nontherapeutic purposes—usually to obtain drugs, such as opioids or benzodiazepines, for feigned illness, recreational use, dependency, resale, or similar indication.3* The contents of these files are intended to be referenced by ED staff when the patient presents to the same ED again in the future. One study that examined such files found that 58% of all EDs in Iowa that were staffed by full-time emergency physicians maintained them, and 97% (37 of 38) reported that they shared information contained in them with each other by telephone on a routine basis.1 Another study found that at least 6 of the 16 hospitals in metropolitan Portland, OR, either “officially or unofficially” maintained such a list.5 Despite their ubiquity, little has been written about these files in either the clinical or administrative literature of emergency medicine.1,2,5,8-10 Whether or not they serve a useful purpose has not been fully studied in the literature, is open to debate, and is not addressed in this article. Nevertheless, the frequency of their use mandates an examination of certain issues surrounding these files. This article describes the ethical, legal, and regulatory considerations that should be considered when
*Individuals
who feign illness or fabricate symptoms to gain drugs for recreational use or resale have previously been termed “fabricating drug-seeking patients” in contradistinction to “drug-seeking patients,” a group that includes both fabricating drug-seeking patients and nonfabricating patients who seek drugs for other reasons.2 Because some patients who “seek drugs” need them for legitimate purposes and because the label “drug-seeking patients” has become pejorative and has sometimes led to the inappropriate treatment of patients,6,7 the author proposes the term “nontherapeutic drug-seeking patients” for the group that includes fabricating drug-seeking patients and those who otherwise seek drugs for abuse or to satisfy an addiction.
8 7 4
establishing, maintaining, and using files of this nature. The term “habitual patient files” is proposed because it is descriptive without being pejorative or otherwise judgmental. E T H I C A L C O N S I D E R AT I O N S
In contemplating habitual patient files, the bioethical principles of beneficence, nonmaleficence, autonomy, distributive justice, confidentiality, and truth telling must all be considered, as must the notion of professionalism.11,12 Physicians are obliged to confer benefit to patients by treating pain and ameliorating suffering. They must also assure that harm does not come to patients as a result of either undertreating or inappropriately labeling them.6 A further obligation is to protect susceptible patients from the consequences of abusing or becoming addicted to drugs. When there is doubt about whether a patient’s pain is real, and this still remains uncertain despite the physician’s best effort to determine this, it is morally superior to administer an analgesic agent to a patient who does not actually need it rather than withhold or unreasonably delay treatment from a person who is truly suffering.6,13 Strict adherence to the principle of patient autonomy might lead one to conclude that patients’ requests for medications should always be honored, but this would run counter to the laws and the prevailing attitudes and norms of the United States. Physicians have a societal duty to be the stewards of limited resources and to allocate them fairly among all members of society.14,15 This obligation arguably extends to preventing improper visits to the ED. It has been estimated that an ED serving a population of 75,000 patients per year may expect up to 262 monthly visits from fabricating drug-seeking patients.2 In the era of severe ED crowding and saturation,16-18 discouraging inappropriate usage will help ensure that those who are most in need will be able to gain access to the ED in the most timely manner.19 The duty to protect patient confidentiality—that is, not reveal to a third party that which is revealed to the physician during a patient encounter—has been recog-
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
nized since antiquity, as summarized in the Hippocratic dictum: “What I may see or hear in the course of treatment or even outside of the treatment in regard to the life of men … I will keep to myself, holding such things shameful to be spoken about.”20 In modern times, it is held that this duty can be overridden by the duty to protect a third party from harm, especially when there is a specific and credible threat to an identified individual.1,21-23 Whether or not this right and obligation to override physician-patient confidentiality extends (on a legal basis) to an action that is viewed as merely benefitting society as a whole is not clear, nor is it clear whether or not doing so is ethically acceptable. The Code of Ethics of the American Medical Association states that: “The physician should not reveal confidential communications without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or the public interest (italics added).”24,25 The American College of Emergency Physician’s ethics code is less expansive, stating that emergency physicians shall “… disclose confidential information only with the consent of the patient or when required by an overriding duty such as the duty to protect others or to obey the law.”14 Veracity is an obligation accorded to both patients and physicians by accepted ethical codes.14,26 Patients have a responsibility to be truthful as to the reasons they are seeking care and what their actual physical and emotional needs are. Physicians must be honest about their suspicions, conversations they may have had with other health care providers, reasons for denying requests for drugs, and plans for sharing this information with colleagues or for entering it into either the medical record or a habitual patient file. It is important to emphasize that these obligations are independent rather than reciprocal (ie, the physician or nurse is obligated to be honest with a patient even when the patient is being deceptive). Finally, professionalism demands that medical personnel treat patients with dignity at all times, regardless of their complaint, disease, hygiene, lifestyle, habits, or circumstances.12 Pejorative and demeaning labels27 that are sometimes used to refer to habitual patients in the ED can be damaging to both patients and to the pro-
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
fession, cannot possibly provide benefit, and must be strongly discouraged and condemned by the medical community.6,28-31 L E G A L A N D R E G U L AT O R Y C O N S I D E R AT I O N S
Common law doctrine recognizes that people have both the desire and right to keep private matters to themselves. Confidentiality of medical information is presently of great concern, as evidenced by recent federal and state debates on patient’s bills of rights and other legislation. At the federal level, there is the Health Insurance Portability and Accountability Act of 1996 (HIPAA), discussed in the following paragraphs. At the state level, most states have passed laws that provide strong incentives to protect medical confidentiality.32 It is reasonable to assume that, in the current environment, states with weak or lacking medical confidentiality laws may pass new laws in the coming legislative periods. In general, federal and state statutes addressing privacy recognize that, in addition to the patients’ right to medical confidentiality, there are competing interests, including the free exchange of medical information among physicians and other providers, the processing of medical claims, and the public’s right to an efficient health care system.32 Additionally, these laws generally recognize the duty to override patient confidentiality under certain circumstances, such as the protection of third parties and to report certain medical conditions or mechanisms of injury.22,23,33 Confidentiality laws usually provide for penalties for the inappropriate release of confidential medical information. Statutes are drafted differently from state to state32 and therefore cannot be exhaustively detailed in this paper. Emergency physicians should be familiar with their state laws. When establishing habitual patient files, it is recommended that a hospital or other health care attorney with expertise in privacy issues be consulted to assure that the process conforms to state as well as federal law. In California, the Confidentiality of Medical Information Act34 (referred to herein as the “Act”) establishes protections to preserve the confidentiality of
8 7 5
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
medical information and specifies that a health care provider may not disclose medical information unless the disclosure is authorized by the Act, by other laws, or by patients in accordance with the requirements of the Act.35 The Act provides for a number of exceptions to the requirement that authorization from a patient be obtained and specifies that the disclosure to other providers be for the “purposes of diagnosis or treatment of the patient.”36 Thus, the model discussed below is careful to collect and document information on habitual patients for the purpose of diagnosis and treatment of patients and to provide that any disclosure to the patient’s primary care physician is made in accordance with the Act and other applicable legal requirements. The risks to a physician of inappropriate disclosure under California law are, as is likely the case in other states, regulatory penalties such as fines, licensure actions, accreditation deficiencies, and suits by the patient. With respect to the regulatory penalties in California, a physician who knowingly and willfully obtains, discloses, or uses medical information in violation of the Act is liable for a fine or civil penalty ranging from $2,500 for the first offense to $25,000 for a third or subsequent violation. If the use is for the purpose of financial gain, these penalties increase to $5,000 to $250,000, respectively.37 It is theoretically possible for a patient to bring a suit against an emergency physician in relationship to the use of a habitual patient file. Whether suits will be successful will depend on applicable state and federal law and whether the implementation of the habitual patient file complied with the law. Additionally, a suit would be more likely to succeed if the patient were able to demonstrate reckless conduct or prejudice on the part of the physician. An online search using Westlaw (West/The Thomson Corporation, Eagan, MN), a legal research tool that accesses 17,000 databases of information and that searched all cases in all states, failed to reveal any cases related to the use of habitual patient files as of November 2002. State laws may also be relevant with respect to requirements for the provision of medications including,
8 7 6
in particular, controlled substances. Again, a complete discussion of these laws is beyond the scope of this article. However, one benefit of habitual patient files may be to reduce prescription fraud. Thus, a brief mention of relevant California laws may be instructive and provide support for the merits of habitual patient files. In California, a patient may be subject to prosecution for prescription fraud if the patient seeks to obtain a controlled substance using fraud or misrepresentation of the patient’s condition to the prescriber. 38 California’s prescription laws go on to provide that physicians may not provide controlled substances to addicts or habitual users, except in limited circumstances. Penalties for violations are substantial. 39 Habitual patient files might, arguably, assist physicians in complying with prohibitions on aiding addicts in obtaining drugs. Finally, California prescribers must maintain a record that shows the “pathology and purpose” of the prescription. 40 Habitual patient files are a tool that might assist physicians in determining whether there is an appropriate purpose for a requested medication. On the federal level, HIPAA, portions of which are scheduled to take effect in 2003, will provide federal regulation of the rights to medical privacy and confidentiality, as well as security of health information.41 EDs should be mindful of HIPAA as they develop policies for habitual patient files. A full discussion of HIPAA is beyond the scope of this article, but a few brief observations are relevant. At the present time, there are generally no restrictions on sharing medical information between physicians for treatment purposes.42,43 Thus, policies establishing and governing habitual patient files should provide evidence that they are created and maintained for treatment purposes. In addition to the treating providers, HIPAA may permit access to patientspecific information by other members of the health care team on a basis that makes available minimally necessary information needed to accomplish a permitted purpose.44,45 Note also that HIPAA may permit a patient to review, and in some circumstances amend, information on him or her contained in the habitual
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
patient file; accordingly, entries should be made with this in mind.46,47 No legal review of ED issues is complete without considering implications of the Emergency Medical Treatment and Labor Act (EMTALA), which has evolved into a complex series of regulations since it was first enacted in 1986.48 At its core, it is designed to guarantee equal and unfettered access to emergency medical care. More specifically, patients are entitled to receive a medical screening examination and stabilization care without unnecessary delay because of financial considerations. No process that is established to deter nontherapeutic drug-seeking behavior, such as the establishment of habitual patient files, should be structured so as to limit access on the basis of patient financial status. In providing stabilization care, however, it must be left to the health care professional, rather than the patient, to choose among the best options for treatment and to assure beneficial rather than harmful care. Nothing in EMTALA requires treatment with opioids. At the current time, the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) does not have a specific standard governing the use of habitual patient files, although patient privacy and confidentiality have been a focus of recent JCAHO surveys, specifically with regard to the visibility of patient names and medical information on “whiteboards” or computer screens. The JCAHO standards manual states that the hospital must “demonstrate respect” for privacy and confidentiality. More specifically, an example of implementation of this standard states that, “Policies and procedures, based on applicable law and regulation, [should] address confidentiality of patient information.”49 The JCAHO standards also state that a patient has the right to “appropriate assessment and management of pain.”50 During a JCAHO survey, it should be demonstrable that “the organization plans, supports, and coordinates activities and resources to assure the pain of all patients is recognized and addressed appropriately.” Maintenance and use of a properly designed habitual patient file may be helpful in this area, whereas a haphazard system could raise concerns.
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
E S TA B L I S H I N G , M A I N TA I N I N G , A N D U S I N G A H A B I T U A L PAT I E N T F I L E
It is essential to have a system of checks and balances when deciding to enter a patient in a habitual patient file. A mechanism should be in place to assure that patients are not entered arbitrarily. High evidentiary standards should exist as demonstrated in the following examples: (1) patients whose private physicians have verified a pattern of drug abuse or nontherapeutic drugseeking behavior; (2) patients with numerous visits for a panoply of subjective painful conditions that are always accompanied by a request for a specific analgesic regimen (along with outpatient prescriptions) and who often claim a long list of undocumented drug allergies (eg, ketorolac, ibuprofen, reglan, dihydroergotamine, and sumatriptan); (3) repeated claims to various physicians of lost or stolen prescriptions; (4) a pattern of making verbal contracts with treating physicians that are not kept, including assurances that the patient has a follow-up appointment with a particular type of specialist on a specific date (eg, “next Tuesday”) and in fact these never occur; or (5) discovery of a patient who is rifling through drawers, evidently to steal needles or syringes. Other scenarios may also strongly suggest, to a reasonable degree of certainty, the existence of nontherapeutic drug-seeking behavior.3,51 Patients should not be entered into the habitual patient file solely on the basis of either a large number of visits or visits that are skewed in frequency to the off hours. For example, patients with recurrent sickle cell crises may have numerous visits to the ED accompanied by requests for analgesia, but the majority would be misserved by terming them fabricating drug-seeking patients (unless there is ample evidence that they were feigning symptoms to satisfy an addiction).52,53 It has been demonstrated that chronically ill patients not only use EDs more frequently than the general population, but that they are also high users of other health care services.54 Because the ED is the venue of last resort and the safety net of the medical system, underinsured patients might logically be expected to rely on the ED as
8 7 7
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
the only venue at which to find care.55,56 Patients who are impoverished, homeless, illiterate, or psychiatrically disturbed may rely on the ED exclusively for care.8,53,57 Finally, because the majority of the week is “after hours” from the private office or clinic perspective, it is logical that patients with chronic diseases might seek care more often at these times. Habitual patient files can also be used to store information about patients who should be treated in a particular manner. For instance, a patient’s private physician may request that a patient be treated with a particular regimen or may verify that a patient’s needs for analgesia are legitimate. Other special instructions may also be conveyed. An accountable, qualified individual or committee should be tasked with approving entries into the habitual patient file. Each and every physician or nurse in a department or hospital should not be allowed to arbitrarily enter patients into the habitual patient file on the basis of personal suspicions or hunches.1 The common practice of a health care worker noting a patient’s number of previous visits and placing this information on the chart, sometimes even before the patient is evaluated by the physician, should also be discouraged. This activity labels patients and prejudices caregivers and could affect the way a patient is addressed or treated.6 The habitual patient file must be stored in a secure location and should be viewed in private. Access should be limited to authorized personnel. It is not permissible for it to be in the open for nonauthorized personnel to see or browse. This should be set forth in an established policy, consistent with state and federal law. Sharing the information contained in the habitual patient file with outside parties without the patient’s consent is not permissible.10,58,59 THE CEDARS-SINAI MEDICAL CENTER MODEL
The following is a model that is used at Cedars-Sinai Medical Center. When a patient is suspected of seeking controlled substances for nontherapeutic purposes on the basis of the type of evidence cited previously, their
8 7 8
name is forwarded to the semi-weekly attending physicians’ meeting. Patients referred to the physician meeting are discussed in a confidential manner. All previous ED charts pertaining to the patient are available for review. After the reason for referral is presented, input is sought from other members of the group, a discussion follows, and a consensus is reached as to whether or not the patient should be entered into the habitual patient file. If a patient is discussed at the physicians’ meeting and the decision is that it is in the patient’s best interest to continue to receive the drug in question, this information is also entered into the electronic habitual patient file so that the file not only proscribes treatment, but also prescribes treatment. The habitual patient file is maintained in an electronic format available for viewing by any of the group’s emergency physicians in a confidential folder on the hospital’s intranet. Access to these files is password protected, limited to the hospital’s emergency physicians, and available from workstations throughout the ED. In addition, a firewall protects the information from outside viewers, and any information that passes beyond the firewall is encrypted in a secure code. Unlike entries into the medical record that may be viewed by any health care professional with appropriate clearance to them (as well as by insurance companies and employers in some cases), access to these files is restricted to emergency physicians with preapproved access. Consultation of the habitual patient file serves as a resource only. Whereas the sending of mixed messages should be discouraged, each physician is free to exercise his or her own judgment in any particular circumstance. In fact, physicians are morally obligated to do what is deemed best for each patient at any moment and must not be bound by any other perceived or actual obligation. Requests from other providers or institutions for information from the habitual patient files are not honored (an exception may be made for a private medical physician with an established relationship with the patient). Generally, medical information from the chart can only be shared with the permission of the patient.
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
DISCUSSION
The maintenance and use of habitual patient files appears to be common, according to both anecdotal accounts and as evidenced by a published survey that demonstrated that the majority of EDs in a small Midwestern state used them.1 The authors of that study also note that, in their rural state, most habitual patients are well known to ED staff without a file, and they postulate that “problem patient” files may be even more common in larger states. This study also found that information from these files was shared with outside hospitals frequently and freely (97% of respondents), and policies governing their use was rare (5% to 14% of respondents).1 It is probable that widely used habitual patient files exist without any formal approval and that their existence is generally unknown to medical staffs, ethics committees, hospital administrators, and others with a legitimate interest in knowing about them. Policies and procedures governing the use of these files are unlikely to exist at most institutions. It is suggested that any process that is established to maintain habitual patient files should be transparent to the aforementioned stakeholders and subject to both an approval process and quality assurance review. Habitual patient files should not remain a “dirty little secret” kept in a dark corner of the ED, known only to specialty insiders. It is also recommended that a hospital attorney be consulted to assure that the process conforms to state and federal law. Our ED uses a committee (of the whole) of emergency physicians to approve or disapprove of entries into the habitual patient file on the basis of evidence gleaned from medical records, treating clinicians, and other sources. In especially difficult cases, usually involving patients with complex medical diseases who may also be drug addicted or suffer from a psychiatric illness or personality disorder, multidisciplinary input is also sought from psychiatrists, addictionologists, social workers, case managers, risk management personnel, or other relevant parties who are invited to attend the meeting. Routinely involving these individuals at meetings might appear desirable but is logistically
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
difficult. Additionally, in many cases these parties would have little to add outside of approval of the process as a whole. An advantage of an electronic system is that the file can be viewed in private at any of the department’s computer terminals and, unlike the traditional notebook, cannot get lost or misplaced. In our system, storage of information is organized on the basis of internal memos detailing the decisions that were reached by the committee regarding these patients. One reason that patients are entered into our system in this manner is that, because decisions are made outside of the process of providing care, entering the information directly into the medical record is awkward. However, if requests for medications are refused at the time of later ED visits, the denial is recorded in the medical record for that date. Currently, many hospitals have robust information systems that store medical records that are easily retrievable. Such systems may also be suitable for storing information about nontherapeutic drug-seeking patients. In fact, some would argue that medical records reflecting information about nontherapeutic drugseeking patients that can be viewed by subsequent treating physicians are more desirable. Furthermore, such storage would allow physicians who practice in multifacility hospital systems to access these files from any location in which the patient might seek care. A shortcoming of routinely using the medical record for this activity is that it provides a wider range of access to those who may not be authorized to share this information. Sharing information from habitual patient files with other providers should be approached with great caution. If we believe that our actions are in the best interests of the patient and society, sharing is desirable. However, given the nonroutine nature of sharing such information, each party should recognize that the sharing of patient information may be held up to special scrutiny, and thus a compelling clinical need for treatment purposes should be documented by the physicians. In addition, this can only be done within the limits of federal and state law. If a patient consents to inquiries by one ED to another ED or the patient’s usual
8 7 9
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
physician, most risk-management and legal concerns would be addressed. In California, sharing information for the purposes of treatment is permissible, and disclosure to a primary care physician that a patient has been entered into a habitual patient file would be permitted in some circumstances. Policies on sharing information from habitual patient files should be carefully scrutinized and approved by a hospital attorney. L I M I TAT I O N S A N D F U T U R E Q U E S T I O N S
It has never been demonstrated that habitual patient files are effective in reducing ED visits by suspected nontherapeutic drug-seeking patients or that the treatment regimen for these patients is subsequently altered. One small retrospective study (24 patients in 6 hospitals) conducted in 1990 suggests just the opposite.5 Further study in this area is warranted. Other unanswered questions include the following: Does the use of these files have any effect on the care of patients seeking care for legitimate complaints? Are patients who have been told that their name has been placed in the habitual patient file reluctant to return to the same ED for other illnesses or other treatment regimens? If the file is routinely queried when patients either require large doses of analgesic agents, carry certain diagnoses, or appear “suspicious,” how does the presence of the habitual patient file alter provider attitudes toward the entire universe of patients requiring pain relief in that ED? How do subsequent health caregivers even know to query the habitual patient file for a particular patient? And is there bias regarding which patients come under suspicion? All of these questions deserve study. Finally, even if the use of habitual patient files reduces visits by nontherapeutic drug-seeking patients to the index ED, it is likely that this will do little toward resolving the abuse and addiction problems of most of these patients. It is more probable that they will simply go elsewhere to satisfy their needs or desires. As a result, the net burden to society will remain unchanged. It would seem that what is necessary to help solve the scourge of drug abuse and addiction is a coordinated
8 8 0
and comprehensive program of education, identification, and treatment.60 Legislative, regulatory, and other (eg, organized medicine ethics committees) assistance and guidance on how information could and should be shared would also be useful. In the meantime, if EDs use habitual patient files, they are obligated to ensure that they are used ethically, legally, and humanely and do not result in harm to patients. I thank Robin Prendergast, Esq., of K&R Law Group (Los Angeles and Sacramento, CA) for her review and guidance with respect to the legal issues discussed in this manuscript. Received for publication May 28, 2002. Revisions received August 11, 2002; October 25, 2002; and November 27, 2002. Accepted for publication November 30, 2002. The author reports this study did not receive any outside funding or support. Address for reprints: Joel M. Geiderman, MD, Department of Emergency Medicine, Cedars-Sinai Medical Center, 8700 Beverly Boulevard, Room 1110, Los Angeles, CA 90048; 310-423-8780, fax 310-423-0424; E-mail [email protected].
REFERENCES 1. Graber MA, Gjerde C, Bergus G, et al. The use of unofficial “problem patient” files and interinstitutional information transfer in emergency medicine in Iowa. Am J Emerg Med. 1995;13:509-511. 2. Trotter G. Calling other emergency departments about suspicious patients. In: Iserson KV, Sanders AB, Mathieu D, eds. Ethics in Emergency Medicine. 2nd ed. Tucson, AZ: Galen Press; 1995:180-186. 3. Longo LP, Parran T, Johnson B, et al. Identification and management of the drugseeking patient. Am Fam Physician. 2000;61:2401-2408. 4. Schaulis MD, Snoey ER. Three years, a thousand visits: a case study of the ultimate frequent flyer. Ann Emerg Med. 2001;38:87-89. 5. Zechnich D, Hedges JR. Community-wide emergency department visits by patients suspected of drug-seeking behavior. Acad Emerg Med. 1996;3:312-317. 6.
Geiderman JM. Sympathetic dystrophy. Ann Emerg Med. 2001;37:412-414.
7.
Greengold NL. A piece of my mind. By the numbers. JAMA. 1994;271:890.
8. Purdie FR, Honigman B, Rosen P. The chronic emergency department patient. Ann Emerg Med. 1981;10:298-301. 9. Saarmann L. Is it live or is it Memorex? Dealing with patients with somatoform or factitious disorders in the emergency department. Top Emerg Med. 1992;14:43-57. 10. Larkin GL, Moskop J, Sanders A, et al. The emergency physician and patient confidentiality: a review. Ann Emerg Med. 1994;24:1161-1167. 11. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. 4th ed. New York, NY: Oxford University Press; 1994. 12. Adams J, Schmidt T, Sanders A, et al. Professionalism in emergency medicine. Acad Emerg Med. 1998;5:1193-1198. 13. Geiderman JM. Geiderman’s rules for emergency physicians. Top Emerg Med. 1986;8:viii. 14. American College of Emergency Physicians. Code of ethics for emergency physicians. Dallas, TX: American College of Emergency Physicians; 2002.
ANNALS OF EMERGENCY MEDICINE
41:6
JUNE 2003
HABITUAL PATIENT FILES FOR SUSPECTED NONTHERAPEUTIC DRUG-SEEKING PATIENTS Geiderman
15. Larkin GL, Moskop J, Weber JE. Resource utilization in the emergency department: the duty of stewardship. J Emerg Med. 1998;16:499-503. 16. Derlet RW, Richards JR. Overcrowding in the nation’s emergency department: complex causes and disturbing effects. Ann Emerg Med. 2000;35:63-67. 17. Derlet RW, Richards JR, Kravitz RL. Frequent overcrowding in US emergency departments. Acad Emerg Med. 2001;8:151-155. 18. Viccello P. Emergency department overcrowding: an action plan. Acad Emerg Med. 2001;8:185-187. 19. Thornquist L, Biros M, Olander R, et al. Health care utilization of chronic inebriates. Acad Emerg Med. 2002;9:300-308. 20. Microsoft Encarta [database online]. Hippocratic oath. Redmond, WA: Microsoft Corporation; 1994. 21. Davis D. Legal trends in bioethics. J Clin Ethics. 1992;6:187-192. 22. Tarasoff v Regents of the University of California, 17 Cal. 3d. 425 (1976). 23. Lundgren v Schultz, 345 N.W. 2d, 25 (Minn) 1984.
49. Joint Commission on Accreditation of Healthcare Organizations. Confidentiality. In: Comprehensive Accreditation Manual for Hospitals: The Official Handbook. Oakbrook Terrace, IL: Joint Commission on Accreditation of Healthcare Commissions; 1999:Standard RI 1.3.6.1.1. 50. Joint Commission on Accreditation of Healthcare Organizations. Patient rights and organization ethics. In: Comprehensive Accreditation Manual for Hospitals: The Official Handbook. Oakbrook Terrace, IL: Joint Commission on Accreditation of Healthcare Commissions; 1999:Standard RI 1.2.9. 51. Parran T. Prescription drug abuse. A question of balance. Med Clin N Amer. 1997;8:967-978. 52. Kne T, Young R, Spillane L. Frequent ED users: patterns over time. Am J Emerg Med. 1998;7:648-652. 53. Mandelberg JH, Kuhn RE, Kohn MA. Epidemiologic analysis of an urban public emergency department's frequent users. Acad Emerg Med. 2000;6:637-646. 54. Hansagi H, Olsson M, Tomson Y. Frequent use of the hospital emergency department is indicative of high use of other health care services. Ann Emerg Med. 2001;37:561-567. 55. Spillane LL, Lumb EW, Cobaugh DJ, et al. Frequent users of the emergency department: can we intervene? Acad Emerg Med. 1997;4:574-580.
24. Council on Ethical and Judicial Affairs, American Medical Association. Fundamental elements of the patient-physician relationship [Opinion 10.01]. American Medical Association Web site. Available at: http://www.ama-assn.org/ama/pub/category/2510.html. Accessed March 31, 2003.
56. Lucas RH, Sanford SM. An analysis of frequent users of emergency care at an urban university hospital. Ann Emerg Med. 1998;32:563-568.
25. American Medical Association. Code of Medical Ethics: Current Opinions. Chicago, IL: American Medical Association; 2000:xliv.
57. Philossoph-Gelb S, Mower WR, Ajaelo I, et al. Psychosocial difficulties and emergency department use. Acad Emerg Med. 1997;4:589-592.
26. American Medical Association. Code of Medical Ethics: Current Opinions. Chicago, IL: American Medical Association; 2000:110-11.
58. Siegler M. Confidentiality in medicine: a decrepit concept. N Engl J Med. 1982;307:1518-1521.
27. Kresovich R, Krome R, Sellman G. The emergency department groupies. JACEP. 1974;3:81-84.
59. Welch CA. Sacred secrets: the privacy of medical records. N Engl J Med. 2001;345:371-372.
28. Simon JR, Dwyer J, Goldfrank LR. The difficult patient. Emerg Med Clin N Amer. 1999;17:354-371.
60. Ovens HJ, Chan BTB. Heavy users of emergency services: a population-based review. CMAJ. 2001;165:1049-1050.
29. Nelson AR. Medicine: business or profession, art or science? Am J Obstet Gynecol. 1998;178:755-758. 30. Geiderman JM. Physician complicity in the Holocaust: historical review and reflections on emergency medicine in the 21st century, Part II. Acad Emerg Med. 2002;9:232240. 31. Geiderman JM. Requiem for a repeater. Ann Emerg Med. 2002;39:688-690. 32. George JE. Confidentiality and reporting. In: Salluzzo RF, Mayer TA, Strauss RW, et al, eds. Emergency Department Management. St. Louis, MO: Mosby; 1997. 33. Knopp RK, Satterlee PA. Confidentiality in the emergency department. Emerg Med Clin N Amer. 1999;17:386-396. 34. California Civil Code, Section 56 et seq. 35. California Civil Code, Section 56.10. 36. California Civil Code, Section 56.10(c)(1). 37. California Civil Code, Section 56.36. 38. California Health and Safety Code, Section 11173(a). 39. California Health and Safety Code, Section 11371. 40. California Health and Safety Code, Section 11190. 41. 45 CFR Part 164. 42. 45 CFR Section 164.502(a). 43. 45 CFR Section 164.506(c)(2). 44. 45 CFR Section 164.502(b)(1). 45. 45 CFR Section 164.506(c)(1). 46. 45 CFR Section 164.524. 47. 45 CFR Section 164.526. 48. 42 USC Section 1395dd, 42 CFR Section 489, et seq.
JUNE 2003
41:6
ANNALS OF EMERGENCY MEDICINE
8 8 1