Many of us have weighed in on the “Meds in the Woods” issue with the competing moral and legal issues keeping the industry from making a uniform statement as to the best practice. With Good Samaritan and epinephrine laws varying from state to state, the discussion becomes even more complicated. At the Wilderness Risk Management Conference recently, people were very passionate about what medications could be acquired, possessed and administered in remote areas during an emergency. Some stated that because the risk of harm is low and the risk of death is high (such as in the case of epinephrine) having the meds is worth the cost if it means saving a life, the moral argument. Others wanted to place the entire burden of medical care squarely on the participant, the inherent risk argument. In certain circumstances, both positions expose organizations and their staff to potential liability.
I suggested to several people at the conference that while organizations may worry this issue will arise when a participant is injured and treated (or not treated), the more likely scenario will have nothing to do with a participant. Instead, a physician or pharmacist will be investigated as part of a civil, criminal or administrative proceeding, and the professional’s prescription drug records will be reviewed. A physician or pharmacist who has prescribed or filled meds to an organization and not an individual patient, for example, will then be investigated and possibly charged. If those meds crossed state lines, Federal agencies will be contacted prompting additional investigations, and soon. They will all follow the chain as far as it goes – directly to the organizations and staff that have the meds in their backpacks or first aid kits. While courts have not yet addressed a “Meds in the Woods” case, they have held physicians, pharmacists and others liable for the misuse, mislabeling, etc. of prescription drugs stemming from an independent investigation. I have seen it in my own practice, and I believe that as agencies become more aggressive and technologies become more sophisticated, it will continue.
In a recent issue of the Wall Street Journal, there was a front-page story about the states’ prescription tracking programs and how they are being used in civil and criminal proceedings against physicians and pharmacists.
Here’s the link:
There is a graphic showing the states that use tracking programs. Ironically, one of the states that doesn’t have a tracking program, Missouri, has a very aggressive Board of Pharmacy, in which, one of my former clients spent almost 10 years inlitigation stemming from a physician’s unlawful prescribing of a common prescription pain medicine. The board simply followed the chain. Because of the recordkeeping required by state and Federal laws, finding out where a single drug has travelled is not much more difficult than locating a book ordered from Amazon. The tracking programs discussed in the Journal story show how easy it is for states to conduct broader searches of physicians, pharmacies, patients and pharmaceuticals. While privacy protections imposed by the law still exist to protect against investigative mining of data, once an investigation begins, it will be difficult for agencies to decide whose privacy is entitled to protection, especially if it appears that people down the chain are not acting in a lawful manner.
The Meds in the Woods issue is serious, but not only because of the moral issues the industry faces every time it takes people into remote areas. It is important, because despite an organization’s best intentions, it may find itself and its staff with legal issues brought about by physicians, pharmacists and others who had little to do with the program. These are very real risks that, as legal professionals and risk managers working toward a best practice, we should continue to thoughtfully consider and discuss.
— Paula Colman, Attorney at Law