Pain Relief, Prescription Drugs, and Prosecution: A Four-State Survey of Chief Prosecutors

Abstract

The experience of having to suffer debilitating pain is far too common in the United States, and many patients continue to be inadequately treated by their doctors. Although many physicians freely admit that their pain management practices may have been somewhat lacking, many more express concern that the prescribing of heightened levels of opioid analgesics may result in closer regulatory scrutiny, criminal investigation, or even criminal prosecution.Although several researchers have examined the regulatory environment and the threat of sanction or harm it poses to physicians and patients, few have examined the likelihood of investigation or prosecution stemming from the aggressive use of opioids in physician-directed pain management. Accordingly, in an effort to assess whether the fear of prosecution is realistic and, if so, what factors contribute to its likelihood, we surveyed chief prosecutors in four states about their knowledge, opinions, and attitudes concerning opioids and the prosecution of physicians stemming from the treatment of patients who were either terminally ill or suffering from chronic noncancer pain.

The Risk of Action by the Drug Enforcement Administration Against Physicians Prescribing Opioids for Pain

“…A limitation of our work is that in addition to state medical boards and the DEA, state and county authorities [19,20] can initiate legal actions against physicians who prescribe opioids. A survey of chief prosecutors from Connecticut, Maryland, Oregon, and Washington found that given a scenario of opioid treatment of a patient with chronic nonmalignant pain, some of the prosecutors would recommend a police investigation to determine whether diversion were occurring while most said they probably would not [21]. Additional reviews of state and county officials activities are needed for a more thorough assessment of the physician’s risk of a punitive action by government for prescribing opioids for patients in pain.…”

Do Physicians’ Legal Duties to Patients Conflict with Public Health Values? The Case of Antibiotic Overprescription

“…Yet, it is the perceived, not the actual, risk that is likely to drive behavior. In the area of pain management, for example, physicians commonly cite fear of criminal liability as a barrier to aggressively prescribing narcotics (Ziegler and Lorich 2003), despite the fact that criminal actions against physicians who prescribe narcotics appropriately are fairly rare events (Meier 2008).…”

Between a Rock and a Hard Place: Can Physicians Prescribe Opioids to Treat Pain Adequately While Avoiding Legal Sanction?

“…241 The agency has stated that the “types of cases in which physicians have been found to have dispensed controlled substances improperly under federal law generally involve facts where the physician’s conduct is not merely of questionable legality, but instead is a glaring example of illegal activity.” 242 While isolated examples of overreaching prosecutors exist, 243 there are no recent data regarding prosecutors’ decisions to charge physicians. A 2003 study revealed a number of prosecutors surveyed understood the complexity of misprescriber situations; 244 however, the majority of prosecutors did not regard physicians as effective self-regulators. 245 The prosecutors ranked deceptive patients as the largest source of diversion, followed by impaired, dated, and dishonest doctors, respectively.…”