PAINKILLER LAW: With the Toothpaste Out of the Tube, Now What?

Now that hundreds of millions of prescriptions have been written across the U.S. for opioid painkillers, with all kinds of patients becoming addicted because the drugs’ addictive potential was likely underestimated or understated at the time of FDA approval, with new studies showing the drugs don’t often work, the toothpaste is definitely out of the tube on this public health crisis. You can’t put toothpaste back in a tube. We can’t just wish prescription drug abuse away, and if we want to prevent our loved ones and fellow Americans from going into potentially life-threatening drug withdrawal, we can’t just magically take away the drug supply and ask people to “deal with it.” So what do we do about this epidemic that is killing 16,000 people a year in our nation alone, even as drug manufacturers continue to insist that the problem is not the pills, but rather the people prescribing and taking them? The answer: Demand accountability from wherever it lies, and demand the presumption of innocence for everyone being unfairly targeted and accused – including many doctors and many patients. Here are the key issues as the year draws to a close:

1. As a criminal defense lawyer, I tell my doctor clients to stay current on all changing science and to change their practices to reflect it. You can’t alter the past in terms of what prescriptions you already wrote, but if you in good faith believed what the FDA and drug companies told you the science was when those scrips were written, then you have a strong argument that you should not be held criminally liable now for what was previously viewed as medically appropriate.

2. In the public policy arena, the FDA and CDC recognize the possible inefficacy of long-term opioid treatment, and are aware of the drugs’ powerful addiction potential no matter how careful a patient or doctor may be. And there are congressional investigations underway into the staggering financial and political influence of drug manufacturers, and how that may have contributed to the mess in which we find ourselves. Good for the members of Congress who are not content to fill their campaign coffers with Pharma contributions and look the other way.

3. Law enforcement continues to “crack down” on doctors for prescription writing, and pharmacists for prescription filling. The ongoing risk to healthcare professionals, as I’ve talked about many times before, is law enforcement’s “black and white” approach to an issue which is at best gray, and the terrible price innocent people pay when the government acts before it thinks.

4. Provider advocacy groups keep scheduling exciting annual conferences at sunny resorts, and ultimately defend the status quo. Along with golf and an open bar, members get persuasive-sounding but medically dubious assurance that a few minor tweaks in screening protocol will lead to vast improvements in patient safety. These groups are starting to look like nothing but shills for Big Pharma and echo chambers for continued high prescription rates. Consider that the head of one of the largest of these organizations is under DEA investigation for 22 patient deaths and counting, and his only public explanation so far is that his physician assistants must have done something wrong in those cases.

5. As for patients, they are still being stigmatized by industry and law enforcement as “drug seekers,” if the patient becomes addicted to prescription drugs. This is despite the fact that most patients never would have dreamed of becoming addicted to anything except a bar of chocolate and a late-afternoon cup of coffee. It is a testament to the awesome power of the pharmaceutical industry, and the naivete of even battle-tested DEA agents, that the “blame the patient” argument has not been completely discredited. It’s not a credible argument; it’s typically not a patient’s fault. But patients – and the doctors who law enforcement likes to blame for creating the problem – are held responsible.

Anyone who cares about healthcare providers and anyone who cares about the simple truth must keep fighting to be heard, and to ensure fair treatment under the law. Here’s to a good new year and all the hope it holds for important progress on holding responsible parties accountable, and protecting the innocent.

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