PAINKILLER LAW: Old Habits Die Hard, but Die They Must

The unmistakeable, tectonic shift in the medical establishment’s thinking about opioid prescribing continues to reverberate across the country. The medical community and law enforcement are starting to be of one mind, with the CDC‘s recent game-changer of a statement that too many doctors prescribe too many opioids to too many patients for too many things. As I have been writing, medical providers and insurance carriers and risk managers and medical malpractice lawyers need to change with the changing science, or get run over by the oncoming train of opioid-prescribing reform. Today’s post is a case in point of who could get pulverized.

NPR has reported that according to recent studies, many primary care doctors prescribe opioids for back pain when the accepted normal beginning course of treatment should be ibuprofen and physical therapy. The studies cite a number of possible reasons for tossing aside other treatments in favor of narcotics: Economics, insurance-reimbursement pressures facing doctors, online ratings by patients and the need to keep patients happy (or face online criticism and fewer referrals), and other factors. The studies note that with 1 in 10 primary care visits scheduled because of patient back pain, that’s a lot of opioids being prescribed when they shouldn’t be.

Medical providers who even a few months ago would have treated with opioids now need to wake up and smell the coffee, Mrs. Bueller. It’s no longer sufficient justification in light of the CDC’s new position on opioid prescription rates. As it is written:

“You want to be able to say, ‘When the science changed, so did I.’”

I wrote that two posts ago; I just wanted you to think I was quoting Scripture. I will continue to urge providers and the professionals who support and defend them to immediately and thoroughly evaluate all aspects of their opioid prescribing, in light of the CDC’s new position – which has since been cited favorably by the AMA. Any professional association, medical society or advocacy group that tells you times haven’t changed is not keeping up with current events, and may as well be directing you to stand on the train track and not move, no matter what. Stay up to speed, seek help in evaluating your practice or the advice you give your insureds or clients, and modify accordingly — today. MEISTER LAW OFFICES 213.293.3737

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Do you know of a medical provider who has been summarily and without recourse dropped from a retail pharmacy‘s list of approved prescribers? I do. I know a lot of legitimate, caring professionals who are in this predicament, and know of many more nationwide feeling the unjust squeeze of tremendous, invisible power. Retail pharmacies, both independent and chain stores – let’s call them “Little Pharma” – are so scared of the DEA that they’re cutting off MD’s, DO’s, and PA’s without notice, without any specifics, and without any means of redress, all in a desperate attempt to try and keep the Feds off their backs. There’s a new blacklist in town, and it’s yet another kneejerk, excessive and unfair response to the problem of prescription drug abuse.

Typically, a medical provider gets a letter out of the blue and that…is…that. The pharmacy or its corporate attorney tells the provider that the pharmacy’s responsibility is patient safety first, and that it is obligated under federal and state law to make sure it doesn’t dispense scrips written by “problem” prescribers. But no details are offered, no specific instances of conduct or prescribing are cited, and no basis for the pharmacy’s decision, other than vague references to statutory language, is provided. You as a medical provider have been branded a problem. You don’t need to have been red-flagged, you don’t need to be under investigation, and you can’t do anything about it unless you decide to go public. Or you can sue, if you feel like devoting the next several years and all of your financial resources to fighting a major corporation, its mountains of money and its legions of lawyers.

On the surface, the pharmacy or its corporate counsel is in charge. But beneath the surface is where the true power is being invisibly, silently exercised. It’s beyond the reach of the legal process; it’s immune to the presumption of innocence, and it’s happening to people we know. Pharmacies are either being leaned on by federal agents to nix a certain provider from the pharmacy’s approved prescriber list, or the pharmacies are afraid of attracting attention by continuing to fill a provider’s scrips if, say, the provider is in the news in a less than flattering way. Fear quickly prevails: Years-long business relationships and friendships evaporate in the time it takes to generate a form letter; patients are needlessly harassed and embarrassed at pharmacy counters, and all the while, no one will say why. This is something out of McCarthyism; it’s something out of Franz Kafka. It’s government overreach is what it is, and it’s real.

What to do about it? I say stand up and fight back. We are, after all, Americans. The idea of government thinking it can push law-abiding citizens around is so at odds with everything in our national DNA, that eventually public objections will build sufficiently and law enforcement agencies will either voluntarily or under judicial compulsion have to take a giant chill pill. Let’s just hope that when that day comes, the pharmacy can still dispense to the government agent in need of a step back.

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2012 has seen the nation’s Medical Boards come under relentless scrutiny for allegedly dropping the ball on regulating healthcare providers who write prescriptions for opioids and other potentially addictive drugs.  2013 will see the Boards react in full.  We all know that when a Medical Board gets hit with criticism by Legislator A or Media Outlet B, the Board reflexively lashes out at Doctor C.   For you as a healthcare provider to know how to protect yourself from biased and careless official investigation, you need to know what your regulatory overseer is thinking, and how you could be at risk no matter how ethically and safely you do your job.  Here’s what is on Medical Boards’ “wish lists” nationwide for 2013:

1)  Criminal investigations, in addition to administrative inquiries, for any patient overdose death.  An excellent recent LA Times article roundly criticized the California Medical Board for what the paper viewed as lax oversight of doctors who lose patients to prescription drug overdoses.  The Medical Board’s first reaction will be to raise the stakes by initiating a more clearly criminal inquiry against a healthcare provider when any patient fatality is even partly attributable to prescription drugs.  The Board is out to vindicate itself.  Providers who underestimate the Board’s desire for vindication are operating at their own peril.

2)  Tightening up communication between coroners’ offices and Medical Boards.  It’s good policy for coroners to immediately notify Medical Boards whenever a death is attributed even partly to prescription drugs.  The danger, though, is what Medical Boards will do with the information as new reporting requirements become operative.  In the hands of Medical Boards desperate to rebuild their tarnished reputations, this could easily become a 1-800-WHO TO TARGET NEXT hotline.  That’s not what these new reporting laws intend, but I’m confident it will be their effect.


3)  Finding criminal and administrative liability when a provider gives prescription drugs to an addict.   Wait a minute:  Isn’t it permissible under federal and state law to prescribe controlled substances to an addicted person?  Yes.  In fact, doesn’t the law of many states expressly prohibit discipline against healthcare providers who do this?  Yes again.  But in the recent LA Times article cited above, a Medical Board investigator said that a patient’s death was “the inevitable result” of giving narcotics to an addict.  That sounds like a new theory of liability to me.  Take it from a defense lawyer:  An incorrect interpretation of the law does not always stop police from acting.  Healer beware.

I will have more to say on these particular topics, as well as what I think 2013 will bring for the broader issue of prescription drug abuse.  For now, take heed and make sure you’re in compliance with all the federal and state laws governing prescription painkillers and other drugs.  Remember that PAINKILLER LAW is here to help you.              213.293.3737               Meister Law Offices

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