PAINKILLER LAW: Legislative Carelessness Results in Law Enforcement Abuse of Providers

California legislators want to do what they can to stem the tide of prescription drug abuse, and they’re targeting healthcare providers in 2013. State Senator Darrell Steinberg recently told the Los Angeles Times he wants to give the Medical Board of California “more authority to stop physicians who overprescribe medications.” But so far he hasn’t defined what “more authority” or “stop” mean here. And notably, California law does not define “overprescribing.” So what exactly are we talking about? The Legislature needs to think this through very carefully and act only after careful deliberation, because legislative carelessness creates room for law enforcement abuse.

For example, “more authority” could mean broader powers to suspend a provider’s practice; the Times article in which Steinberg was quoted seems to advocate this. Today, the Medical Board must obtain a court order to suspend a practice pending an investigation. Does Steinberg want the courts taken out of this? With the Medical Board already under the gun to “crack down” on prescription drug abuse, isn’t it wiser to keep a judicial check in place, to make sure the Board doesn’t act arbitrarily, inconsistently, or for its own political benefit?

Next, what does “stop” mean? Are all prescribing privileges curtailed? Could a provider still write for an asthma inhaler, just not for Vicodin? Would a suspension be for a month, two months, for the pendency of an investigation? If the investigation resolves in the provider’s favor, what then of lost reputation and income as a result of the “stop” order? Is it a no-harm, no-foul situation where the Board claims absolute immunity from being sued, even though its actions were in retrospect mistaken or unfounded?

Finally, why should we trust the Medical Board to appropriately investigate “overprescribing,” if no one can define overprescribing to begin with? There is no definition in California law, believe it or not, yet my clients are under investigation for it as I write this. Someone wants to give this Board more power to interpret new laws any way it desires? That’s a scary thought.

U.S. Supreme Court Justice Potter Stewart was once asked, in a First Amendment case before the Court, how he’d define “obscenity.” The best he could come up with was, “I know it when I see it.” Heaven forbid anyone’s license or livelihood should ever hinge on that kind of litmus test.

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