Legal Action on Opioid Prescribing Overblown, But Documentation Still Needed to Avoid Arrest

A panel of three experts from the legal side of pain management said investigations into prescribers after patient deaths resulting from opioid overdose are rare and overblown.

Although the US Drug Enforcement Administration’s investigation into American Academy of Pain Medicine President Lynn Webster, MD, for patient deaths resulting from opioid overdose has created a chilling effect among prescribers, a panel of three experts from the legal side of pain management said the reality is that those cases are rare and overblown.

“There will always be isolated cases where a good prescriber gets investigated or sued, but it’s a relatively rare event,” Stephen J. Ziegler, PhD, JD, an associate professor in the College of Education and Public Policy at Indiana University—Purdue University Fort Wayne, said during the “Avoiding the Pitfalls of Rumor-Based Medicine” session of PAINWeek 2013. “Even when a case reaches criminal prosecution, there’s no such thing as a slam dunk, as cases are very much fact driven and, unfortunately, there’s very limited information” across prosecutors, regulators, and investigators within law enforcement and state medical boards, Ziegler added.

Commander John Burke, president of the National Association of Drug Diversion Investigators, continued to relieve fears among pain physicians in the audience — some of whom have undergone investigation for potentially improper opioid prescriptions — by pointing out that “the people who need to be here (in the session) right now are the people who probably aren’t here.”

To stress that point, Burke highlighted four egregious prescriber cases, including one instance where a physician wrote CII prescriptions in exchange for automatic weapons, and another occasion where a female patient’s records contained nothing but her bra and panty sizes and colors.

Still, physicians need to thoroughly and properly document complete patient histories, appropriate physical exam results, random urine testing outcomes, and opioid treatment plans and objectives — which encompass “the key to avoiding trouble and discipline” and reducing the likelihood of investigations through good practice, according to Joseph P. Furman, JD, of Furman Healthcare Law in Beverly Hills, CA.

“(State medical boards and prosecutors) scrutinize all aspects of your care. In that regard, every doctor faces vulnerability,” Furman said.

Even so, Furman emphasized that “the ones who get into trouble either have a knowledge base that’s not up to date, or dabble in prescribing painkillers.”

“Although criminal cases are publicized, they’re rare and they do have chilling effect, but what’s interesting is that they’re designed to have chilling effect, because criminal law’s goal is deterrence,” Furman said. “The irony is, look at what we’re deterring. It’s a lot of appropriate and lawful prescribing that should not be deterred. That’s the tension in this.”

Expanding upon that point, Burke noted the distinction the police make between investigating illegal street dealers and investigating prescribers who legally prescribe controlled substances.

“You sit at the top of the public’s trust list, and you should be. And that’s why I never take any of these cases lightly, because not only is this a big task, but this is also taking someone with a great reputation and then going to sever that reputation by going forward with a case,” Burke said. “It’s not a simple task to overcome formidable hurdles to provide overwhelming evidence to the prosecution, and it shouldn’t be a simple task.”

For more advice on prescribing opioids appropriately, watch this YouTube clip of Dr. Ziegler.