PAINKILLER LAW blog post: Consumer Reports Agrees

An excerpt from Consumer Reports’ September edition:

Misconception #2: Opioids are not addictive when used to treat pain.

And the quote from a doctor interviewed for the article: “That’s what I and a lot of other doctors learned in medical school. But we now know that’s just not true.”

The caption and quote are telling and important to anyone who thinks doctors should routinely be criminally targeted and prosecuted for prescribing opioids to their chronic pain patients. As I’ve written many times before, doctors should not ordinarily be dealt with by the criminal justice system when the medical provider has prescribed approved drugs within the scientific standards that were available at the time the drugs entered the market and when the prescribers were instructed in the drugs’ use. This is for two reasons:

First, our system of continuing medical education (for already licensed physicians) does a poor job of disseminating critical data to doctors a lot of the time. We can’t guarantee that the critical new data always reaches the doctors it needs to reach, and we shouldn’t count on profit-motivated pharmaceutical manufacturers to objectively tell doctors how to prescribe drugs which earn the manufacturers billions of dollars a year.

Second, our justice system does not treat as a crime an act which was legal at the time it occurred, even if the law has since changed. We don’t retroactively declare things illegal and punish past actions; that would violate the Constitution’s Ex Post Facto Clause and be fundamentally unfair.

In my view, charging doctors on the basis of today’s science as applied to yesterday’s actions is a potential violation of the Ex Post Facto Clause and should not be a tool in a prosecutor’s toolbox.

Prosecutors could respond by saying that the crime of, say, unlawful distribution of narcotics, has been on the books forever, and they would be right. But they’d be wrong in saying that a person deserves to be brought up on felony charges if the physician’s prescribing was based on the science which existed at the time. With the science of these matters rapidly advancing, and the idea of what is and is not safe in significant flux, it’s simply unfair to declare past actions criminal based on knowledge which has only recently been acquired.

The Consumer Reports article is an interesting and very accessible read on a complicated subject. If you ask me, it should be required reading for any law enforcement agency — from the DEA to Medical Boards to local law enforcement — prior to a criminal investigation of this nature being initiated.

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