Be vigilant with controlled veterinary drugs

One of my colleagues recently reminded me that in 2011 I wrote about drug abuse in the workplace and promised a follow-up article. Apparently I forgot to write that second missive. (Possibly due to some brownies I ate on my last trip to Fort Collins?) Nevertheless, based on calls and e-mails we receive at my law office, the subject keeps expanding, so I will opine further on the topic.

When I field inquiries from veterinarians and technicians around the country with concerns about possible workplace controlled substance abuse, the worried caller is almost never the person perpetrating the abuse—at least that's what they say. Rather, what usually happens is that a staff member notices consistent irregularities in the process of ordering, cataloguing, dispensing or recording the use of one or more substances controlled by state or federal law. While these workers are nervous about the impact of drug improprieties on the practice, what they're more concerned about is the possibility of becoming involved in an investigation of the problem.

Enforcing the law

The laws concerning the oversight of a controlled substance once it arrives at a legal wholesale purchaser, such as a medical clinic or pharmacy, are all over the place depending on the jurisdiction. In some states the recordkeeping laws are very strict, but enforcement of those rules is so lax that a doctor can go a lifetime without fielding a single inquiry about who ends up with the controlled products.

Other states are basically providing a free service to the federal Drug Enforcement Administration (DEA) by conducting spot-checks at veterinary hospitals to make sure they're complying with state veterinary practice laws. While state inspectors are carrying out a clinic visit to make sure the facility is clean and that all veterinarians wear gloves while performing surgery, they also peek at the phenobarbital and hydrocodone records to be sure they're up to snuff. In this way, states bolster the DEA's woefully underfunded compliance efforts.

Regardless of how pharmaceutical records are policed in your state, what veterinarians and technicians really need and want to know is how they can protect themselves when discovering—or even just suspecting—that controlled medications are leaving the clinic in a way that violates the law.

And the concern is certainly legitimate. Every year private medical, dental and veterinary practices are sanctioned for prescription drug law violations. I'm reminded of this fact every time I renew my license to practice veterinary medicine in Florida. That state is so concerned about pharmaceutical abuse that it requires a mandatory continuing education class on the topic as a prerequisite to actually renewing a license.

Signs of trouble

Veterinary staff members who've never witnessed a potential drug abuse problem in the workplace are usually surprised when the indications do show up. They may not realize that these signs indicate anything more than sloppy inventory management or haphazard recordkeeping.

Here's a brief list of some red flags that a genuine problem exists:

> Pages missing from the controlled substance manifest

> A claim that a bottle of a controlled substance has been "lost," "destroyed" or "thrown away by mistake," especially if this occurs with suspicious frequency

> A doctor or technician insisting that he always log in certain pharmaceutical deliveries when it's not one of his usual clinic tasks

> Refusal by management to upgrade, or even initiate, a controlled substance log

> Missing prescription pads

> Associates or partners who hold veterinary distributor accounts with delivery addresses other than the veterinary practice location.

Areas of concern

In an earlier era, concerns expressed by an associate veterinarian, staff member or per diem doctor who hinted at controlled drug improprieties might have been met with a polite "none of your business," and that'd be the end of it. Today, newly developed legal theories of vicarious civil and criminal liability can ensnare even the innocent. Workers with no malicious intent can become involved in unwelcome investigation-related hassles—even implications of alleged complicity with unprofessional or illegal activity of coworkers.

Those most at risk, of course, are people who hold professional licenses: veterinarians and credentialed technicians. Due to their higher level of training in the field, licensees may be held to a higher standard of care in instances where the diversion or abuse of addictive medication is, or "should have been," apparent in the workplace.

Also at increased risk is the practice owner, whether a veterinarian or, in places where it is legally permitted, a layperson or corporation. If negligence or inattention to reasonable substance management guidelines results in the harm or death of an employee or another person through tolerated controlled substance diversion, a business or its ownership may have to answer for damages, face criminal sanctions or possibly both.

Protecting yourself

Potential workplace misconduct is a touchy and perilous subject. This is especially the case for nonveterinarian employees at a clinic. For example, if a technician or receptionist feels compelled to alert the boss to concerns that controlled substance abuse may be going on, her job might be placed in jeopardy. The risk is especially great if the boss is either personally involved in illegal behavior or shielding an employee who is.

But doctors in the practice are at risk too. There are student loans to repay and reputations to be protected—becoming known in the professional community as a scheduled-drug Buttinsky may not be the best way to hold onto or obtain a new associate position. The same goes for per diem or relief veterinarians. Those who raise too much of a stink about drug inventory anomalies may scare off future relief clients. Potential customers might start to wonder whether they want a whistle-blower filling in for them while they're away on vacation or attending a conference.

So other than making a huge issue at work about sloppy controlled substance logs and potentially incurring the wrath of higher-ups, what can the innocent licensee or other veterinary clinic employee do to protect herself from getting caught up in workplace drug woes? One or more of these ideas might be worthy of consideration:

> Licensees can mention in an offhanded way to management that they attended a professional continuing education class about drug inventories and felt it was appropriate to mention that some "firming up" might be needed to bring the clinic into compliance. Providing a written list of specific ideas is a good idea as well. (Keep a copy to show investigators if a certain something eventually hits the fan.)

> Licensees who spot recordkeeping flaws may want to ask upper management if it'd be possible to have a second team member shadow them when monthly inventories of scheduled substances are conducted. This helps eliminate the licensee—usually a technician—from being included in a list of suspects should drugs be found missing during a site visit by state or federal inspectors.

> Written prescriptions should be photocopied twice—one copy should be kept in the medical record and the other kept in a chronologically catalogued binder or other permanent record. Remember that prescription mistakes happen all the time and these copies are key to protecting the prescription writer and the clinic from liability for pharmacist error.

> Veterinarians who witness something they're concerned about may want to ask a second person to assist them when taking controlled substances out of inventory for a procedure that requires anesthesia or when dispensing medications to a client. If that request is routinely made, it's a signal to management that the staff or relief veterinarian is nervous about a lax existing protocol or wants to distance himself or herself from something suspicious.

> Veterinarians always have the option of prescribing all scheduled drugs rather than dispensing them.

So while no one's immune from the implications of a drug abuse debacle in veterinary practice, just a little bit of prudence and watchfulness can be your best friend—and ultimately protect the business.

Dr. Christopher Allen is president of Associates in Veterinary Law PC, which provides legal and consulting services to veterinarians. Call (607) 754-1510 or e-mail info@veterinarylaw.com.