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Can a doctor prove that I am not in pain if I keep telling/screaming that I am in pain? Can I sue him for not giving me dilaudid

Sacramento, CA |

Other ER docs and hospital docs had no problem giving me my IV dilaudid in the past when I complained of pain. My vital signs were fine, I have never had any reaction to it in the past and I had no medical/physiological reason not to get dilaudid but he told me that this is typically reserved for surgery patients and that it was not appropriate for me to get it. He proposed some other pain meds that never touched me in the past. If I complain of ongoing pain must he not treat my pain with what works until I tell him the pain is gone?

Attorney Answers 6


  1. Best answer

    While the refusal to prescribe highly potent and extremely addictive medications to a patient will very very very rarely land a doctor in the defendant chair of a successful malpractice suit, there are a growing number of doctors who are ending up in the hot seat for overprescribing or prescribing without medical necessity said medications. I have a few O.D. cases on my roster right now... and I fully expect to take on more in the next few years as the Medical Board of California starts taking this issue more seriously and sheds publicity on this deadly doctor-caused "epidemic."

    - Paul

    Paul J. Molinaro, M.D., J.D.
    Attorney at Law, Physician, Broker
    Fransen & Molinaro, LLP
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    Paul J. Molinaro, M.D., J.D. ... Attorney at Law, Physician, Broker... Fransen & Molinaro, LLP... 980 Montecito Drive, Suite 206... Corona, CA 92879... (951)520-9684... www.fransenandmolinaro.com / www.888MDJDLAW.com... "When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW." ... * This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy... ** Fransen & Molinaro, LLP practices in the areas of personal injury, medical malpractice, and real estate law.


  2. No, you cannot sue a doctor for refusing to give you this medication. There may be a ton of reasons why the doctor did not give it to you including potential addiction, the doctor not believing you need such a potent drug, etc...It is the doctor's call...Sorry.

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  3. Pain relief and what the doctor prescribes is clearly a medical judgment. You can sue anyone for anything, but unless another doctor testifies that the doctor deviated from accepted medical standards of care, and his deviation caused you damages, you don't have a case. I never advise people not to pursue, since I do not have all the relevant facts, but on what you have described, it would be a difficult case to pursue, and win. You are always free to consult with a local attorney who handles medical malpractice cases.


  4. No. Best bet is to find a doctor to provide the treatment you require.


  5. It is within the realm of professional discretion to prescribe or not prescribe any given medication. That alone is rarely enough to substantiate a medical malpractice claim.

    I am licensed in California, therefore, my answers are based on general prinicpals of law or California law, which may not be applicable in your jurisdiction. Answers posted to Avvo are for general information only. Do not conclusively rely on any information posted online when deciding what to do about your case. Every case depends is fact dependent, and responses are limited to and is based on the information you posted. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.


  6. By law, physicians must prescribe based on the individual physician's medical judgment. It is not professional malpractice for a physicians to differ in the judgment of necessary pain meds. The patient is always free to shop around for a different physician.

    What you are proposing would completely override the physician's judgment process. The law does not compel a specific judgment call from the physician.

    I am unaware of any medical malpractice case EVER in any state where a physician was found to have committed professional malpractice solely on the basis of refusing to prescribe a specific patient-demanded medication.

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