PAINKILLER LAW: Yet More Evidence That the Drug is the Problem

Yet more evidence has emerged that long-acting extended release opioids for chronic pain should never have been marketed as safe, effective and generally non-addictive. To avoid criminal liability, malpractice suits or Medical Board actions, medical providers who prescribe opioids for their patients have to change with the changing science. To ignore the changing science – major developments emerge pretty much weekly now – is to risk imperiling patients with outdated information, and to consequently put your liberty and livelihood in great danger. If you’re out of the loop on information that could save your patients’ lives, when you had the chance to come up to speed and you ignored or passed on the opportunity, imagine how easy you’ll have made it for the DEA, or your licensing board, to nab you. I’ve said this before, and I say it again because there’s more important news to share about this.

Here’s what we know so far:

-The Centers for Disease Control believe that too many doctors are prescribing too many opioids to too many patients;

-The AMA concurs, to the great disappointment of pharmaceutical manufacturers;

-The FDA has ordered new labeling for long-acting extended release opioids to better warn providers and patients of the dangers of addiction and abuse;

-Johns Hopkins Medical School has concluded that even though opioid prescriptions have skyrocketed, fewer patients are actually experiencing pain relief.

And now, Exhibit 5: The National Pain Report on September 23, 2013 says that “a drug increasingly being used to treat opioid addiction may be fueling a new epidemic of diversion, overdose, addiction and death in the U.S.” The article talks about buprenorphine, known by its brand name, Suboxone, and how it is not only being prescribed by some doctors who don’t know what they’re doing, but that it’s also being sold on the street by heroin dealers because it reportedly softens any withdrawal symptoms between doses or highs.

And still, pharmaceutical manufacturers would have patients and physicians believe that the problem is not with the drugs themselves. Instead we see the same old acronyms like “the 5 R’s, or “S.A.F.E. N.A.R.C.” or other catchy phrases that do what they can, but which ultimately miss the point, in favor of the idea that the patient and the doctor can be in complete control in any prescribing or treatment scenario. Patients and doctors can’t be, because the drugs are too powerful. The nation’s prescription drug abuse epidemic and the weekly scientific bombshells prove this.

So what to do, if you are a medical provider? First, if you’re not in pain management, don’t get into it unless you are Board certified and fully trained by a body other than a self-interested, profit-motivated provider advocacy group. Such groups will sell you on taking the easy way, and that will ultimately disserve your patients and you. Second, if you already have a pain management practice, read and incorporate all the new scientific data into your practice without delay, so that you can show any law enforcement investigators that when the science changed, you changed with it. And third, even though the current assessment, treatment, monitoring and other compliance/patient safety tools are valid and should continue to be utilized, know that they’re increasingly being revealed as inadequate. They are no match for the immense power of the drugs they seek to keep in check. So relying on them alone will, as the science continues to advance, leave you high and dry when it comes to defending yourself against criminal, malpractice, or Medical Board scrutiny. MEISTER LAW OFFICES 213.293.3737

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“The Warm Blanket” is how many opioid users describe the feeling of being under the drugs’ influence.  Orally or injected, and regardless of the reason(s) the drugs may be taken, this description has been documented across the user spectrum.  PAINKILLER LAW’s position on prescription drug abuse is that even if a patient or an addicted person – or an addicted patient – needs the warm blanket, that does not necessarily mean criminal or civil liability should rest with a prescribing healthcare provider.  In other words, in all but the most extreme cases, the blanket is warm, but the trail back to the ultimate question of “why?” is appropriately cold.

And speaking of “cold,” I don’t mean to sound cold or heartless saying that.  Grieving parents of deceased addicted children need comfort, not a lecture.  None the less, it is true that healthcare providers are generally NOT to blame for prescription drug abuse.  Here’s an example:

This past Thanksgiving Day in Minneapolis, two teens broke into a man’s home to steal prescription medication.  They weren’t looking for iPads or a flatscreen TV or even cash; they wanted pills.  The homeowner shot both teens dead.  For reasons not yet fully disclosed by police, he’s being charged with murder.  But my focus is the teen burglars.

Let’s assume the teens were addicted to prescription pills, let’s say opioids.  They committed the crime to feed their habit one way or another, either by planning to ingest the drugs themselves, or by selling them to buy other drugs for personal use.  Let’s further assume that the teens were first prescribed opioids by a legitimate healthcare provider.  They became addicted over time; to not feed the habit now would bring on the days-long agony of withdrawal.

Who is liable for the burglary?  The teens; they did it.  Who, if anyone, is liable for the act of killing them?  The homeowner, if he can’t claim self-defense, which you’d expect he’d be able to do.  But if the homeowner is charged, can he defend himself by blaming the doctor who prescribed the opiates to the teens?  Is there a causative link between the prescriptions, and addiction-fueled criminal behavior, sufficient to excuse the homeowner from killing them?  Should the healthcare provider be sued by the teens’ parents for wrongful death at the hands of the homeowner?  Should the healthcare provider’s act of prescribing be criminalized, independent of the burglary or murder case?  Should the very act of having written scrips for these teens end up with a doctor, or osteopath, or physician’s assistant, or nurse practitioner, stripped of their license and doing hard time?  Would a healthcare provider still be liable if the teens had not committed a crime?

There are already some states, like Florida, which criminalize “overprescription,” if anyone can define it, and I’d challenge you to come up with a durable, scientific and constitutional definition.  Then there’s my state, California, whose law conveniently doesn’t define “overprescribing” but whose law enforcement agencies still try and charge it.  And there’s a national law enforcement drumbeat to “do something” about prescription drug abuse by targeting legitimate healthcare providers writing reasonable prescriptions for approved drugs.

What are your answers to the questions above?  My answer to all of them is an emphatic “no.”  And even if reasonable people can disagree, that only means the issues are too complicated for law enforcement agencies to handle prescription drug abuse as though this were a straightforward issue with an easy remedy.  As the old saying goes, “For every complex problem, there’s a simple solution, and it’s wrong.”

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PAINKILLER LAW: Triple Murder Case Against L.A. Doctor in Court Today

While in L.A.’s famed Criminal Courts Building handling a client’s case today, I stopped by Department 107, where the triple murder prosecution against Los Angeles-area osteopath Lisa Tseng is moving forward, albeit slowly. Department 107 is the courtroom of Judge Michael Pastor, a very well regarded judge and a favorite of prosecutors and defense attorneys alike throughout Los Angeles County. I have been in 107 before Judge Pastor both as a prosecutor and as a defense lawyer, and earlier this year I did nightly TV news commentary on the Michael Jackson/Dr. Conrad Murray manslaughter trial – another high profile case over which the judge presided.

Dr. Tseng is charged with three counts of second degree murder, stemming from the overdose deaths of opiate-addicted patients for whom she wrote multiple Schedule II through Schedule V painkiller prescriptions. She is also charged with various other related felonies. The theory of homicide is “implied malice” – that she was so reckless and unreasonable in writing for these patients, she so failed to see that they were headed for destruction, that she may as well have wished or intended them dead. To my knowledge, this is the only murder prosecution against a healthcare provider today. If convicted, Tseng faces 15 years to life in prison on each murder count alone. Today in the Tseng case, the defendant was a “miss out” – she was not transported on time to court from the County Jail where she is being held in lieu of $3 million bail. The case is still in the pretrial discovery phase, and will not likely go to trial imminently, though I am sure a trial will occur.

The prosecution has a powerful emotional and storytelling “hook” for a jury: Dr. Feelgood, writing opioid scrips like they were going out of style, getting rich while fecklessly feeding the insatiable addiction of three young, formerly healthy kids who had their whole lives in front of them. But how, and why, charge murder – murder! – against someone who obviously didn’t want her patients to die, and who presumably didn’t tell them to down a whole bottle in one sitting – and who wasn’t present when the overdoses occurred? The charges are either groundbreaking, or crazy, or both.

Healthcare providers, drug manufacturers, patient safety advocates, and law enforcement agencies are keeping a close eye on this case. Providers want reassurance that they’re not going to be targeted as the next Lisa Tseng. Manufacturers fear a corporate criminal indictment down the road on various experimental theories of liability. Patient safety advocates see this as a test case against prescription drug abuse. And of prime concern to Painkiller Law, law enforcement is desperately looking for guidance or a template for going after physicians, osteopaths and physician’s assistants in this latest iteration of the War on Drugs.

As this case goes forward I will write about it frequently on the Painkiller Law Blog. If you’re a healthcare provider writing prescriptions for pain medication, your doing so doesn’t mean you’ll be charged with murder if a patient fatally overdoses. What we are seeing every day, though, is that anyone – even if they’re not Lisa Tseng – can be targeted. Be ready, by being in compliance today. Learn how to fully comply with the criminal law of prescription painkillers, through Painkiller Law.

Painkiller Law: Criminal Law Compliance for Healthcare Providers.

213.293.3737 The Meister Law Offices

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