Medical Malpractice and Personal Injury Law Blog

Expensive Medications Create Risks to Patient Safety and Potential Physician Liability

Posted by Briggs Bedigian | Jan 15, 2019 | 0 Comments

It is estimated that approximately 8% of U.S. patients fail to take prescribed medications because of the cost. This problem persists although about 80% of prescribed products are generic. For certain medical conditions, there is no generic alternative available or the generic product is determined to be ineffective for a particular patient. An American Pharmacist Association report suggested that failing to take prescription medications causes nearly 11% of admissions to hospitals and roughly 125,000 deaths annually. Those with chronic conditions are particularly at great risk. The highest priced prescription products are generally “branded” products that are still under the manufacturer's patent protection.

Brand vs Generic Medications

Drug manufacturers are afforded patent protection that essentially results in only having one source for the product without competition. In addition, there is an opportunity for existing medications to be reformulated allowing additional patent protection. For example, an oral pharmaceutical (tablet or capsule) may be reintroduced in the form of an inhaler. The prescription drug market is further complicated by differing prescription drug coverage by the many health insurance providers, contracted wholesale and retail pricing differences and other factors.

The U.S. System

The prescription drug market in the U.S. has many critics. Dr. Ashish Jha, who has conducted research for Harvard's School of Public Health, explains that many other countries have adopted pricing requirements or created more competitive market structures. He says the U.S. essentially employs methods that result in the “worst of both”. Prescription drugs in other countries have per capita costs of between $466 and $939; meanwhile, the U.S. cost is approximately $1,443. Dr. David Nash of Jefferson Medical College also recognizes how prescription costs lead to patient noncompliance and ultimately to a rise in hospital admissions and worsening of medical conditions.

Consequences of Noncompliance

When pricing prevents patients from receiving necessary medications the results can be dangerous. The problem also can negatively impact physician reimbursement. Increasingly, the Centers of Medicare and Medicaid are adopting more “outcome” based or performance-based reimbursement. When patients are unable to afford the medications they are prescribed, overall physician performance scores will fall. C. Everett Koop, a former U.S. Surgeon General, summarized it by saying “drugs don't work if patients don't take them”.

Best Practices Regarding Expensive Medications

  • Physicians should remain aware of the more costly prescription products
  • Knowledge of costly medications is critical when treating those with low income or those who are uninsured or underinsured
  • Providers may need to think of ways to tactfully and empathetically determine if a patient may have difficulty paying for higher-priced medications
  • Providers should consider prescribing products that are listed as “preferred” under a patient's insurance plan
  • Encourage patients to “shop around” to find better prices
  • Advocacy programs exist within many foundations that provide assistance to those unable to afford their medication
  • There are dozens of prescription discount cards available that are generally free to obtain

Potential for Liability

It is possible that cost-prohibitive medications can ultimately result in claims of medical malpractice. When patients have poor medical outcomes such as worsening or fatal outcomes, their medical provider's adherence to the proper standards of care could be questioned. Claims of malpractice are generally based on negligence. This negligence involves evidence that the provider failed to provide care that was consistent with the quality standards of others currently in the profession. Providers are encouraged to properly document their discussions with patients regarding why a prescribed medication is critical. The patient should clearly understand the risks of not taking the medication.

About the Author

Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm's litigation practice.  Briggs' legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 

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