Legal Pain Management for Physicians

A potential client called recently. He wanted to sue his doctor. In the first telling, he said that his doctor had called him a "drug addict" and wouldn't treat him any longer.   The first telling of the story, usually isn't the whole story.  So I asked him to tell me exactly what happened.

The client related that he had been prescribed Oxycontin for two years following unsuccessful hip replacement surgery, until his doctor stepped into the examining room, closed the door and said, "Son you look like an addict. We must wean you off the opioids."   All the client heard was "drug addict."

As opioid prescriptions skyrocketed in the 1990s, so too did death by accidental overdose.  According to published reports in 2015, 52,000 Americans died from drug overdoses, and in 2016 the numbers increased another 19 percent, to approximately 62,000.  Half of those deaths are from prescription drugs.

According to The New York Times, the increased number of deaths has led to erroneous  prosecutions, leaving "many doctors between a rock and a hard place when it comes to working with their patients."  This problem is compounded by the fact that many times, the doctor is not notified that his patient has died of a suspected overdose.

Until recently, the question of over-prescribing was usually a matter for state licensing boards, where it usually belongs.  Then in February 2016, a California doctor, Hsiu-Ying Tseng was convicted of second degree murder in the deaths of three patients.  More ominous was the sentence of 30 years to life. 

So exactly when does negligent conduct, falling below the standard of care, become criminal?  The answer is, "it depends."  At the lowest end of the spectrum, the worst of the worst, is the rare case, in which patients have been recruited at a homeless shelter, given $200 to pay the doctor, and are returned to the shelter with $25 in their pockets, while the prescribed drugs are diverted to the black market.  This type of conduct violates nearly ever law on the books applicable to prescribing.  And the book that will be thrown at this type of practitioner includes money laundering, tax evasion, violations of mail fraud, wire fraud, racketeering, healthcare fraud, and possibly murder.

In the ordinary case, however, it is the degree to which the practitioner has deviated from the standard of care, the "legitimate medical purpose," as set forth in applicable medical board regulations. Additionally, signs that you might be targeted as a pill mill, include these hallmarks of questionable conduct: (1) you have a safe full of cash, because you accept mostly cash pay, (2) you have a lot of patients in your lobby, who are seen only briefly (3) opioids are frequently prescribed in the first visit (4) you pick up patients after other physicians have refused to prescribe them opioids (5) a large number of patient overdose deaths (6) patients travel long distances to see you and (7) you have prior disciplinary actions, which should have been a wake-up call, but the lesson wasn't learned.

In my practice, I usually find overdose death prosecutions among the easiest to defend. The burden of proof is not only extremely high, usually the patient also has other intoxicants in their system, including street drugs and alcohol. For this reason, it may be possible to negotiate a lesser penalty, including surrender of a license, but no jail time.

Prosecutors have learned, however, questionable practices, usually include exposure to some other offense. As with the government's case against Al Capone, you may be charged with something as simple as tax evasion, for failure to report income, because it is too difficult to prove criminal prescribing behavior.

 This brings me to my original point. When you suspect drug-seeking behavior, the best way to stay out of trouble, is to close the door, turn to the patient and tell him, "We need to talk."