PAINKILLER LAW BLOG: You Whine, You Win

Recently, the author Salman Rushdie remarked that today in the world, “so many people are upset about everything all of the time.”  Complaining does seem to be in great supply these days in all types of places and circumstances.  The idea of whining as a winning tactic comes to mind in light of last week’s decision by the New Hampshire Board of Medicine to hold off adopting emergency opioid-prescribing rules, after NH doctors voiced loud objections (read:  whined) about what an imposition the new emergency rules would be.  This story is significant for three reasons:   (1) The opioid crisis is becoming a presidential campaign issue in first-to-vote New Hampshire; (2) the doctors protesting the emergency rules won the day, when they should not have; and, (3) complying with opioid prescribing guidelines is not an option, it’s a legal requirement, it’s not that difficult, and if you don’t comply with legal requirements, you get busted and have no one to blame but yourself.

First, New Hampshire, like many other states, is experiencing a terrible problem with opioid prescribing, unintended addiction, accidental fatal overdoses, and legitimate pain patients’ turning to heroin as a pill-substitute just as pain sufferers are doing nationwide.  But what makes New Hampshire different is that all the presidential candidates really want to win there.  So, the prescription drug issue is being talked about by candidates Democratic and Republican.  Expect more attention to be paid to the issue in the coming weeks and months, and let’s hope the issue doesn’t get tossed out along with campaign posters when the politicians move on to the South Carolina and Nevada primaries.

Second, in this environment of urgency and political and media attention, you’d think the New Hampshire Board of Medicine would have an easier time adopting proposed emergency rules about opioid prescribing.  Its proposed rules, on which it held hearings last week, would have required prescribers to take a biannual (every two years) course in pain management and controlled substances; check the state’s automated prescription drug monitoring program before starting a patient on opioids; limited ER-written prescriptions to five days; and required annual or sometimes more frequent urine tests for patients taking opioid prescriptions.  Let’s face it:  Those aren’t onerous requirements; they’re reasonable, restrained, in line with other guidelines around the country, they’re limited in scope, and they’re not too tough, too time-consuming, or too expensive to comply with.

But they failed to pass.  The Board killed them after lobbying by doctors.  The doctors testifying before the Board in opposition to the proposed rules said ER docs would simply “ignore” requirements to collect information on substance abuse and mental health history before prescribing.  To understand how galling a statement this is, remember that opioid prescribing guidelines are the law; they are what DEA agents and other law enforcement officers look to in judging the legality/legitimacy of a prescriber’s work, and failure to follow guidelines is prima facie evidence of a criminal violation.  Against this backdrop, ponder the audacity of a licensed professional threatening to “ignore” a legal requirement, much less glibly declare in public his or her intention to flout the law.  That, my friends, is chutzpah.  Then there was the threat by NH docs that if the rules passed, doctors would simply stop treating patients who are prescribed opioids.  The refrain of “I’m going to take my marbles and go play somewhere else” is getting a little old, and if doctors don’t understand that prescribing guidelines are the law, not just a bunch of words to be ignored or attended to if one is in the mood, then the complaint and threat is going to soon be the medical profession’s equivalent of crying wolf.  Besides, if ignoring the guidelines will make more prescribing easier, then why would a doctor content to ignore the guidelines be worried about the burden of compliance, anyway?

Third and finally, the trick is to teach certain doctors to stop whining when their position lacks credibility, and instead show them that guideline compliance is much easier, takes much less time, and costs much less money than they think.  It’s not rocket science; it’s not even medicine.  It’s law, and if you don’t know the law and don’t follow it, you’re breaking it, and then you’ll need someone like me to help you, assuming you haven’t painted yourself into a corner with your public declarations about how little the law matters to you.

 

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