How Legal Liabilities And Skewed Decision-Making Plague Clinical Encounters


By Jay K. Joshi, MD

The opioid crisis continues to ravage communities, and everyone, including politicians and federal agents, has a plan. However, no one has an actual solution.

It’s time to examine the crisis from a more detailed perspective: the clinical perceptions that form during a clinical encounter between a physician and a patient. It is here that we see the true effects of opioid policy and understand why they are so ineffective.

At the end of 2022, the DEA eliminated the X-waiver restriction on DEA licenses for physicians prescribing opioid abuse medications like methadone and buprenorphine. This change aimed to increase access to medications that could prevent overdoses. However, nearly seven months after the policy change, the intended increase hasn’t materialized.

Physicians are not considering the clinical benefits of expanding access to care for substance use dependencies. Instead, they are focused on the increased legal liability associated with treating patients who are perceived as high-risk due to prescribing another controlled substance.

When physicians start prescribing opioid abuse medications in addition to traditional opioid medications for chronic pain patients, it results in a higher number of overall controlled substance prescriptions. The DEA monitors these numbers based on a system that categorizes controlled substances into different schedules, ranging from one to five. Schedule I drugs are illegal substances, Schedule II drugs are legal medications with high abuse potential, and higher schedule drugs have lower abuse potential.

A physician may choose to prescribe both opioids and opioid abuse medications to address legitimate clinical needs for different patients within the same practice. However, from a legal standpoint, the DEA perceives such a physician as a high-risk prescriber simply due to the combined prescription count.

This conflicting perception affects clinical decision-making. To understand this clearly, we can use a common framework employed in game theory, which describes decisions in terms of outcomes. Positive outcomes have payoffs with positive numbers, while negative outcomes have payoffs with negative numbers. The magnitude of the payoff indicates its significance.

Outcomes influence the game being played. In zero-sum games, decision-makers have opposing interests, whereas in non-zero-sum games, decision-makers have some shared interests. When decision-makers agree on a plan of action, the game is cooperative; when they cannot agree, the game is noncooperative. The behavior of the players and the payoffs are ultimately influenced by the nature of the game and the level of uncertainty involved.

According to this logic, uncertainty is a discrete factor that determines the outcome of any clinical decision. Every physician responds to uncertainty differently, leading to different types of errors. A false negative is an error that arises from missing something present or failing to detect a disease that was actually present. In response to the heightened perceived liability associated with this error, physicians tend to order excessive tests and procedures as a safeguard against lawsuits.

During the opioid crisis, physicians now face liability due to the diversion of prescription medications, even when patients have good intentions. This further distorts the game by introducing new rules that make the risk of diversion a part of the uncertainty and an active player in decision-making. Eventually, the error of a false positive becomes more significant than the risk of a false negative. As a result, physicians become hesitant to prescribe opioids even when they are medically necessary. This also explains why physicians are not eager to prescribe opioid abuse medications despite the policy change.

Figure 1 illustrates a clinical encounter in a two-by-two matrix. On top is the presenting patient, who may either be a patient in legitimate pain or an addict with malicious intent. On the left is the presenting physician, who may choose to trust the patient and provide opioids as medically necessary or not trust the patient and refrain from prescribing opioids.

The top-left box displays the payoffs for an outcome where a legitimate pain patient receives medically necessary opioids from their physician. Both the physician and the patient benefit in this scenario, as indicated by the positive payoffs for both. In the top-right box, the physician experiences a negative payoff, while the patient has a positive payoff. Notice the significant negative payoff for the physician, often resulting in well-meaning physicians who prescribe opioids facing criminal charges and severe sanctions from state medical licensing boards.

The bottom two boxes provide further insights. Both outcomes have negative payoffs for the patient since neither results in the patient receiving prescription opioids. The physician’s payoff in the bottom-right box is positive, indicating that the patient did not merit medication. However, the bottom-left box is noteworthy. In this scenario, the physician receives a positive payoff, implying that the physician benefits from not trusting the patient, despite the patient having a legitimate medical need.

Consider the two scenarios where the physician makes incorrect assumptions. The top-right box represents a false positive, where the physician incorrectly assumes the patient has legitimate pain and prescribes opioids. The bottom-left box represents a false negative, where the physician incorrectly assumes the patient is malingering and does not prescribe opioids despite genuine pain. In the mind of a physician, the liability associated with a false negative is less compared to that of a false positive, making it a preferable outcome. Indeed, the average payoff for the physician in the bottom two boxes is higher than in the top two boxes, skewing clinical decisions away from prescribing opioids and towards defaulting to a lack of trust in the patient.

As long as the negative payoff of a false positive exceeds the negative payoff of a false negative, policy measures aimed at increasing access to care will not produce the desired effect. The current game structure pits physicians against patients by incentivizing clinical decisions to be predominantly based on legal considerations. The clinical encounter becomes a zero-sum game with payoffs influenced by the most severe legal consequences.

Jay K. Joshi is a family physician.


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    • Editor-in Chief:
    • Theodore Massey
    • Editor:
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    • Musaba Dekau
      Lin Takahashi
      Thomas Levine
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      Ronald Harvinger
      Lisa Andonis

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