PAINKILLER LAW: Fear the Climate of Fear

President Franklin Delano Roosevelt once sought to reassure the American public with the advice that “the only thing we have to fear is fear itself.” While today’s aggressive enforcement environment against healthcare providers who prescribe controlled substances is not as universally perilous as the Great Depression, the rise of fascism or the winds of war, these are still dangerous times for MD’s, osteopaths, physician’s assistants and nurse practitioners, not to mention pharmacists. Everyone who plays a role in providing potentially addictive medication to patients – legal medication, prescribed under lawful circumstances – is at greater risk because of the government’s desperation to “do something” about what has been called an epidemic of prescription drug abuse. And in my experience, government investigators are stoking the flames of fear, unfairly, and it needs to stop.

Consider: A client writes a prescription for a Schedule III painkiller, for a patient who’s been seeing the doctor for a long time. Suddenly, the pharmacist down the street from the doctor’s office won’t fill the scrip; the same pharmacist has filled scrips from this doctor for years. Why this sudden change?

This happened to a client of mine recently (my client is the healthcare provider; she has not been charged with any crime). The client wrote the pharmacist, who is a friend of hers, and asked what was going on. The pharmacist’s response shocked my client: A Board of Pharmacy investigator had recently shown up, unannounced, to the pharmacy and questioned the pharmacist about my client. The pharmacist replied that my client is a good doctor, and that her scrips have been honored by the pharmacy for a long time. The investigator couldn’t issue any orders, but he did “suggest” that the pharmacist no longer honor any scrip from my client. This scared the pharmacist very profoundly.

The pharmacist ultimately decided not to barricade the pharmacy doors against my client’s patients. Will this anger the Board of Pharmacy? Perhaps. But was it right for the Board’s investigator to make that “suggestion?” I say strongly no – it was wrong. It’s reckless, it’s potentially defamatory, it’s unprofessional, and I think it’s an unethical pressure tactic bordering on extortion. It’s completely inappropriate for the investigator to have done this.

And I have no doubt it happens frequently, and likely ever more often, given today’s enforcement environment, the pressure on regulators and law enforcement to “crack down,” and given the general liberties I’ve seen even upstanding law enforcement officials take when they have the room to maneuver freely. Today they are creating a climate of fear. While steps to combat prescription drug abuse by patients, and to move against corrupt providers are in theory legitimate and appropriate, in practice these law enforcement excesses must be exposed and battled against. Fear is a potent weapon, and today, it seems it’s being wielded with alarming frequency and ease by the government against law-abiding citizens and legitimate medical professionals, in the latest iteration of the War on Drugs. MEISTER LAW OFFICES 213.293.3737

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