PAINKILLER LAW BLOG: “Meds Not Working? Good, Have Some More.”

A new study cited in the journal Pain Medicine shows that pain patients not prescribed opioids experience lower disability and higher physical function than those prescribed opioids, and that patients receiving opioids do not necessarily show improvement in physical function. In broad terms, the study is another in a growing series questioning the efficacy of opioids for chronic pain. Doctors who prescribe opioids and whose patients don’t show improved function are potentially violating state prescribing guidelines, and risking criminal prosecution for unsafe prescribing.


Of course, the study doesn’t find that every patient suffering pain but not prescribed opioids gets better, faster. We know that some pain patients don’t need opioids, for instance, and that those patients may show improvement more quickly because their underlying medical condition is less severe, or more amenable to non-narcotic medical treatment. Further, some patients receiving opioids do show improvement in physical function, which is great.   But with successive studies, or at least those not sponsored by the pharmaceutical industry, there is an accumulating body of evidence fundamentally questioning whether opioids are safe and effective. The answer so far, according to no less than the CDC in its proposed prescribing guidelines, is that opioids can be very easily addictive, and they often don’t work.


This doesn’t mean every doctor prescribing these controlled drugs should never write another chronic pain patient’s prescription, or turn patients to the street, or close a practice’s doors, or hang up the medical license and open a coin laundromat.   It means instead that when a state’s prescribing guidelines say something like, “Don’t keep prescribing if your patient shows insufficient improvement in physical function,” a doctor should not routinely and without one heck of a good written explanation write refill after refill, or increase a dose or summarily change to a more powerful painkiller. To blithely up a dose or switch to a bigger drug is to violate the prescribing guidelines in place in almost every state in the nation. And, to have medical records devoid of detailed evaluation and decision-making about each patient is to expose one’s self to criminal prosecution. I’ve seen it so many times in my criminal defense practice: Authorities from Medical Board investigators to sheriff’s detectives to DEA agents to prosecutors seize charts, run prescription monitoring reports, see no evidence of a doctor’s decisionmaking in the chart, and equate poor recordkeeping with pill-mill, assembly line moneymaking devoid of medical judgment and patient safety.


Of course, some doctors keeping poor records while prescribing to hundreds of pain patients ARE committing crimes. But in the majority of cases, doctors merely do not know their state’s guidelines well enough to realize that a patient’s improved physical function is a key LEGAL TEST of whether a certain medical treatment should continue. Read that again. A patient’s improved physical function is a key LEGAL TEST of whether a certain medical treatment should continue. Proper pain management practice today involves a careful combination of medical judgment and legal compliance.   Neglect just one, and you risk being prosecuted. Neglect both, and you virtually guarantee it.   Careful practice, good judgment, and thorough recordkeeping help build a viable defense if you are ever under criminal investigation or in the crosshairs of an eager prosecutor.   Get competent legal advice before trouble hits, and you’ll be better off.


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