I have never considered myself a Michael Jackson fan. I grew up in the Elvis era. I couldn’t sing a lick, was a fair dancer, and my drug of choice was “Miller Lite.” But because of the fanfare and media coverage, I have been watching with interest how the situation with M.J. (only his close friends call him Mike) and his “in-house” physicians is developing.

Although the pressures on a physician treating the rich and famous must be tremendous, most people—including me—do not see this as an excuse for the physician’s catering to a star’s—or, for that matter, any other patient’s—“need” for drugs, whether the drugs are used to help the patient sleep, or lose weight, or perform. Without excusing the physician, however, we should make at least some case for patient responsibility.

Instances in which physicians are sued for writing excessive prescriptions, leading to the patient’s overuse of drugs, are increasing. But another phenomenon in which physicians become “soft targets” has recently been identified. It’s called third-party responsibility and goes something like this: the physician prescribes a drug for his patient; the patient, allegedly due to the effects of the drug, harms or kills a third party; and the prescribing physician is then held responsible for the death—even though he had no relationship with the third party.

“Wait a minute. That’s not medical malpractice,” you say. That’s correct! Murray J. Goodman, MD, described this scenario in a case in Massachusetts in which the judge ruled for the plaintiff against the doctor, not for medical malpractice but for negligence. (See “How far does your obligation go?” AAOS Now, December 2008) Although the physician had no relationship with the third party, the higher courts ruled that he had an obligation to the third party because he should have foreseen that his patient might injure or kill someone as a result of the treatment prescribed.

The case against the doctor is that of a negligence suit such as in an automobile accident. It is similar to holding the bartender responsible for serving the customer too much alcohol after the inebriated customer has an accident while driving under the influence of alcohol.

I, like most physicians, believe that we have an obligation to inform our patients of side effects and complications of medications we prescribe—and to document that conversation. We have a responsibility to ask about other drugs the patient may be taking that could interact with those we are prescribing—and to document that conversation.

But the patient also has a responsibility. The patient—or the patient’s family—must be honest in informing a new physician about drugs prescribed by other physicians. The patient must follow the doctor’s instructions and take responsibility for his or her actions. The courts, however, may not necessarily see it that way and may rule in favor of the plaintiffs, placing the responsibility on the physician.

Although life often is difficult and unfair, it is what it is! So, what can we do about it? We can continue to try to change the medical libaility laws through advocacy methods, but we also can go down a more personal road. I have always hated the term “defensive medicine.” I think it is costly and not always in the best interest of the patient. Even though I don’t like practicing defensive medicine, I have resurrected three old rules (Rule of 3s) in prescribing that I share with our residents. They are a way to serve the best interests of your patients as you “cover your back.”

1. Use only a small number of drugs and know those drugs very well. There’s an old joke that the difference between a carpenter and an orthopaedist is that the carpenter knows more than one antibiotic. Well, that may not be all bad! I use four drugs—a perioperative cephalosporin such as Keflex®, a nonsteroidal anti-inflammatory such as Celebrex® or Mobic®, a steroidal such as Medrol Dose Pack or cortisone injection, and a narcotic such as Lortab®. Each of these has its own set of problems, but I know all there is to know about these four drugs. I know what to expect in the way of side effects and complications and what to counsel patients about when they take these drugs. That leads to the next rule.
2. Know and discuss with the patient the side effects and complications of the prescribed medication and document this discussion. Make a note in the chart, even if it is a standardized drug-risk paragraph to “cover your back.” Too often, doctors delegate this onerous, time-consuming task to someone else, only to find out later that the discussion never took place. If you do it, you know it was done.
3. Don’t overprescribe; avoid too much medication and too many refills. The old adage that “orthopaedists don’t treat chronic arthritis with long-term addictive analgesics” is a good one to remember. Have a good process or method in your office to “flag” controlled substances and prescription refills. If long-term pain relief is necessary, almost every community has a “pain clinic” to deal with these problems daily.

Although I don’t have much in common with M.J., his death has made me—and hopefully all of us who prescribe medication—more aware of our prescribing obligations to our patients. The sad circumstances of his untimely death should serve as a reminder to all of us to prescribe carefully and to cover our backs when we do.