Drug overdose is a nationwide crisis that claimed the lives of more than 63,000 Americans in 2016. The majority of these deaths involved opioids such as heroin, prescription painkillers, and, increasingly, illicitly produced fentanyl.
Many of these deaths are preventable with the timely administration of the overdose reversal drug naloxone and the provision of related emergency care. However, in many cases, overdose bystanders do not have ready access to naloxone. Most states, including Michigan, have moved to address this issue by passing legislation that expands who can obtain and administer naloxone.
Municipalities are also looking at ways in which they can increase access to naloxone among community members and family members of loved ones at risk of overdose. A Michigan local health professional recently contacted the Network to inquire about potential liability issues for health educators who have been certified as naloxone trainers and conduct community trainings and distribute naloxone kits to the public.
In Michigan, a program involving lay education and distribution of naloxone kits would likely be based on MCL 333.17744b(1)(d). This statute allows prescribers and pharmacists to prescribe and dispense naloxone to organizations (not individuals) to dispense or administer naloxone as long as the following requirements are met: the organization must (1) act at the direction of the prescriber or dispensing prescriber; (2) store the naloxone in compliance with the law; (3) dispense or administer the naloxone under a valid prescription issued to an individual or patient; and (4) perform these requirements without charge or compensation. Thus, health educators must be sure to act as directed by the prescriber or dispensing prescriber when providing the training, as well as complying with the other statutory requirements. With regard to distributing naloxone kits, MCL 333.17744b(3) states that “[n]otwithstanding any provision of this act to the contrary, a person that is acting in good faith and with reasonable care may possess and dispense an opioid antagonist.”
The statute provides protection from liability for prescribers and pharmacists involved in programs established under and operated in compliance with the section noted above. See MCL 333.17744b(5). Health educators involved in these programs are unlikely to face liability risks greater than those they ordinarily face as health educators. Health educators who are employees of a local health department would likely be protected from liability by governmental immunity as long as they are acting within the scope of their job duties and are not acting with gross negligence (MCL 691.1407(2)) (applicable to government employees generally) or with willful or wanton misconduct (MCL 333.2465) (providing additional protection for public health department employees).
Two articles, “Co-prescribing naloxone does not increase liability risk” and “Engaging Law Enforcement in Overdose Reversal Initiatives: Authorization and Liability for Naloxone Administration,” co-authored by Corey Davis, Deputy Director of our Southeastern Region office, provide additional information on liability issues associated with naloxone prescribing and administration. Though not specifically addressing liability risks for health educators, these articles describe how a court would likely analyze a tort claim relating to naloxone administration. In particular, the article on engaging law enforcement in overdose reversal initiatives includes a systematic review of U.S. case law relating to naloxone administration in out-of-hospital settings. The article reports that the authors did not uncover “any cases regarding the prescription, distribution, or administration of naloxone via community distribution programs, which have been operating for more than a decade and have been involved in more than 10,000 reversals.
Network attorneys are available to answer questions on this and other public health topics at no cost to you, and can assist you in using law to advance your public health initiatives. Contact a Network Attorney in your area for more information.
The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.