PAINKILLER LAW: When Crime’s All You Look For, You See Too Many Criminals

If you wake up every morning, strap on a badge and gun and go fight the War on Drugs, you come to view the world in a certain way. If your goal for each workday is to go in peace and not come back in pieces, your perspective on society, people, crime and your role in combating evil are invariably shaped by your experience. That’s why it’s a mistake for the DEA to bring its ordinary approach against drug crime to the issue of prescription drug abuse. But that is just what the agency is doing. It is basically treating like a criminal any healthcare professional who shows up on its radar.

At the recent joint conference sponsored by the California Medical Board and Board of Pharmacy, I heard the DEA speak about rampant drug diversion, pharmacists’ widespread complicity in prescription drug abuse, doctors wantonly prescribing outside the standard of care, drug dealers in white coats, and the DEA’s determination to crack down. The problem is, no one can quantify the degree of “complicity” by the nation’s pharmacists, or durably judge when a provider is prescribing outside the standard of care. The DEA says it’s happening, and its agents are the ones with the guns, and so, well, it must be happening.

The sense of things that I had coming into the conference was unfortunately not at all changed by what I heard there. The DEA’s talk was dominated by war stories of pharmaceutical distributors selling Oxy out the back door, of pharmacists ordering more than they need and keeping lousy records of where it all went, of doctors making megabucks writing scrips for no reason, and patients visiting websites devoted to the celebration of hallucinogens. Seriously, that’s what the speaker talked about. That’s clearly not the entire scope of the issue, and those characterizations don’t fairly define all medical providers or pharmacists or patients. None the less, the DEA is bringing its habitual mindset to a new class of cases and investigations – and a new “target” population – and that’s the wrong approach.

Clearly, the DEA is in reaction mode, just as Medical Boards nationwide are, and it’s being blamed for missing the early signs of what became a prescription drug abuse crisis. In reaction to the blame, the DEA is redirecting the pressure onto doctors, pharmacists and others who the DEA thinks are responsible for whatever the agency is supposed to be trying to stop. And what exactly is to be stopped? Who should decide whether a patient needs the drugs he or she is given: The prescriber, or the federal agent? If a doctor prescribes a lot of pills to a lot of patients, does it mean he or she is operating a pill mill? If a pharmacist fills prescriptions, is the pharmacist automatically part of the problem? And if the meaning of “outside the standard of care” can’t even be succinctly articulated in the law, how are law enforcement agents to know where the line is, BEFORE they decide a practitioner or pharmacist is dirty?

These are the questions all of us must vigilantly continue asking, persistently and if need be peskily, in this latest iteration of the War on Drugs. There is no easy answer, no matter what the DEA might think.

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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 info@painkillerlaw.com The Meister Law Offices

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PAINKILLER LAW: ARE ABUSE STATS THE NEXT “YELLOW CAKE” SPEECH?

The National Center on Drug Abuse, affiliated with the U.S. Government’s National Institutes of Health, compiled and put out a statistic awhile ago that 5.1 million Americans had taken prescription painkillers in the past month for “nonmedical reasons.” The statistic, released in 2010, is still being turned to today by the USG and others as calls to action against healthcare providers who prescribe Schedule II through V pain medication. The government’s argument then and now is fundamentally flawed, and unless it’s confronted, it threatens to become the government’s next “Yellow Cake” speech and recklessly target and penalize innocent and ethical healthcare professionals. The Yellow Cake speech, delivered to the United Nations by former Gen. Colin Powell during the George W. Bush administration, was the 16-word pronouncement that Iraq possessed weapons of mass destruction as a result of obtaining nuclear material, or “yellow cake,” from an African nation. The intel, of course, turned out to be wrong, and Gen. Powell has repeatedly said that delivering that speech is the biggest regret of his entire career.

First, the Center’s statistic itself is dubious. Who are these 5.1 million Americans? Patients? People with current, valid prescriptions? People whose dose has been monitored by their doctors? How do those surveyed draw the line between “medical use” and “nonmedical use,” and was there a static definition of “nonmedical” utilized as a standard measure from person to person? Or was “nonmedical use” a completely subjective notion, varying widely from person to person surveyed? The statistic is a compelling read, but its foundation, upon the most rudimentary examination, is shaky.

Second, the statistic says nothing about whether the source of the “nonmedical” painkillers is the user’s healthcare provider. Were these lawfully prescribed pills? Black market resells? Internet Oxy? There is no connection made between user and healthcare provider.

Third, and most importantly, the government mistakenly draws this connection in its current pronouncements about the need to “crack down” or “do something” about prescription drug abuse. The Office of National Drug Control Policy, the DEA, states’ Medical Boards and other powerful agencies are looking for someone to blame, and they’re focusing “like lasers,” to borrow from former president Clinton, on doctors, osteopaths, physician’s assistants, and pharmacists. No doubt there are some corrupt providers, pill mills do exist, drug diversion onto the black market is real, and a lot of people are addicted to prescription painkillers. But government at all levels nationwide is taking a hamfisted, impulsive, under-informed and careless approach to complaints, investigations, license revocation proceedings, lawsuits and criminal prosecutions. And with the pressure coming from legislators, patient advocates and vocal critics of prescription painkillers, the ethical healthcare provider should expect to come under investigative scrutiny even if in a different enforcement environment no official attention would be warranted.

Amid the swirling turbine of subpoenas, search warrants, legislation that second-guesses or replaces medical judgment, and other risks, healthcare providers must ensure that they are in full compliance with all criminal laws affecting and regulating prescription painkillers.

The Meister Law Offices has pioneered a critical new area of criminal defense – PAINKILLER LAW: CRIMINAL LAW COMPLIANCE FOR HEALTHCARE PROVIDERS. We are here to help. We help you verify, achieve and maintain compliance, so you can practice knowing you’re doing right by your patients and the law, and so if the law comes knocking anyway, you’re ready and able to stand up for yourself.

Call us today at 213.293.3737 for a free consultation, or write to us at info@painkillerlaw.com.

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PAINKILLER LAW: The Provider’s Dilemma, Part Two

Healthcare providers writing legitimate prescriptions for pain medication today swim in shark-infested waters.  Every provider needs to protect herself or  himself from the crusading law enforcement agencies that presently are happy to shoot first and ask questions later in the new effort to “crack down on” or “do something about” prescription opioid abuse.  In previous posts I have coined the phrase, “The Provider’s Dilemma,” to describe the conflict faced by physicians, osteopaths and physician’s assistants in prescribing Schedule II through V medication for patients with severe, chronic or debilitating pain, on the one hand, and providers’ being subjected to unwarranted or impulsive administrative or criminal scrutiny for prescribing pain medication, on the other.  Today I elaborate on The Provider’s Dilemma, with special attention to two news releases which, ironically, came out within hours of one another.

The first release was from Virginia Commonwealth University’s Spine Center, which in a recent study found that long-term intrathecal opioid treatment can be beneficial for pain management and reduction.  The study cited concerns about tolerance, absence of relief, or development of dependency which can occur with patients taking oral opioids, but the study did nothing to undermine or debunk the notion that these drugs can bring much needed relief to patients suffering from real pain.  The science continues to be in line with patient-care policy in states like California, and with the instructional and philosophical approach taught in the nation’s medical schools for the past few decades:  That good medicine includes treating pain patients in need.

But then, in the second news release, the White House Office of National Drug Control Policy (“ONDCP”) boasted of the recent summit it had with a dozen or so other federal agencies, including the Justice Department, on the Office’s #1 priority:  Fighting what it once again called the “Prescription Drug Abuse Epidemic.”  Just the issuance of this release by the ONDCP should be enough to give pause even to the most scrupulous and conservative healthcare practitioner, mid-signature on the prescription pad.  This is because the awesome power of the White House, the D.E.A, and the rest of the federal government is today arrayed and ready for what the government considers the latest iteration of the War on Drugs.  Only this time, they’re pursuing healthcare providers instead of cartel kingpins, and the scourge they’re deploying against is for legitimate and lawful prescriptions, not street drugs.

What should you do?  On the one hand, the people who tell you it’s still OK to use your best medical judgment in writing painkiller prescriptions carry the wise words of Hippocrates.  But the people on the other side of the issue carry badges and guns, and the blessing of federal, state and local government to come after you if in the “considered” opinion of a prosecutor or cop with not one day’s medical training, you’ve crossed the line in prescribing opioids for pain.

What are your options?  You can stop writing prescriptions for any opioid painkiller and hope for the best, not only for yourself but for your patients whose medical needs you may end up neglecting.  Or, you can carefully and thoroughly incorporate best practices into how you assess, diagnose, treat and monitor anyone who needs pain relief, and be in compliance with federal and state criminal laws about writing for these medications.

That is where Painkiller Law: Criminal Law Compliance for Healthcare Providers comes in.  Painkiller Law is a comprehensive legal service offered by the Meister Law Offices.  We provide a top-to-bottom review of your practice to enable you to verify, achieve and maintain compliance with applicable laws, incorporate best practices into all you and your staff do, know where the red flags might be, and stand with you if you ever find yourself under investigation.  In the current enforcement environment, you cannot control whether the D.E.A. or F.D.A., or your state’s Medical Board, start looking at you.  You do not, however, need to be at their mercy.  Be in compliance, be ready, and thereby be best positioned to prevail.

Call Painkiller Law today for a free consultation, at 213.293.3737, or email info@painkillerlaw.com

 

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PAINKILLER LAW: THE NEW “BLAME GAME” IN Rx ABUSE

Did you as a medical doctor, osteopath, physician’s assistant or pharmacist know that YOU are to blame for Rx abuse nationwide?  The White House Office of National Drug Control Policy is placing new emphasis on treatment and prevention of Rx abuse and urging a new, more “compassionate” model be adopted when it comes to how patients abusing prescription painkillers should be approached.  But blame for Rx abuse has to be placed somewhere.  And so it has been placed on healthcare providers who write painkiller prescriptions, and the pharmacists who fill them.

Look no further than an article in Wednesday’s Wall Street Journal for proof.  The article, “Making the Pharmacy Crawl,” explains that patients in many states have to travel to several pharmacies to fill legitimate prescriptions, as a result of new laws’ making “doctors criminally liable and revok[ing] their licenses for writing prescriptions for painkillers that lead to overdoses.”  This, in combination with pharmacies’ being subject to stricter limits on how many opioids they can dispense in a given period, has led, says the article, to a reduction in the number of doctors writing prescriptions, and in pharmacies’ not being able to fill what even a legitimate patient with a legitimate scrip might need. Is this really helping people? Or is it placing doctors’ judgment under a microscope, allowing if not requiring scrutiny of medical judgment, by government agents with no medical training or experience?  Is it substituting pharmacists’ judgment, discretion and ethics for hard and fast marching orders from the DEA?  Is it going to do anything to crack down on what the government calls the prescription painkiller epidemic, or will it just make people’s lives harder, subject them to more unwanted bureaucracy, and punish ethical practitioners and legitimate patients along with a few corrupt practitioners and drug addicts?

Ham-fisted governmental action that creates unintended consequences for good and law-abiding people abound, especially in an environment like this where the government is basically feeling its way as it goes.  When government treats a public health problem as a law enforcement problem, there is going to be a lot of collateral damage behind every press release or high profile arrest.  Don’t be the collateral damage.  Protect yourself and your practice from governmental heavyhanded behavior, by being in compliance now with all applicable criminal laws about prescribing painkillers.  Compliance goes a long way; it makes for ethical and sound patient care; it gives you peace of mind that if you’re ever investigated you will be ready; it helps persuade law enforcement that you are practicing appropriately and properly; and it acts as a foundation for a defense if you ever need.

Call Painkiller Law, a service of the Meister Law Offices, today for a free consultation on how to verify, achieve and maintain criminal law compliance in writing prescriptions for pain medication.  It’s good preventative medicine.  213.293.3737, or write us at info@painkillerlaw.com.

 

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PAINKILLER LAW: DOCS AFRAID, SAYS LA TIMES

An important article in today’s Los Angeles Times raises important questions and doubts about the appropriateness of prosecuting healthcare providers when a patient fatally overdoses on prescription painkillers.  In Los Angeles County now, Dr. Hsiu-Ying “Lisa” Tseng has been charged with triple murder – murder! – in the overdose deaths of three patients to whom she prescribed pain medication.  I have always thought these charges are excessive, and I think it’s a dangerous precedent to start prosecuting MD’s, DO’s and PA’s for something as grave as murder.  The theory of murder is that the patient was addicted, the doctor knew it, the doctor kept writing prescriptions, the patient overdosed fatally, and the doctor was so reckless and indifferent to human life by writing the scrips that the doctor may as well have wanted or intended to kill the patient.  The theory is ridiculous, and shame on the District Attorney’s Office for leading the grieving families of the patients to believe “justice will be done” in the form of a murder conviction.  I predict the DA will fail at trial; whether a lesser theory of homicide will succeed, I don’t know.  But murder?  That’s way over the top.

Don’t let anything close to this happen to you.  Call the Meister Law Offices at 213.293.3737 for a free consultation about Painkiller Law:  Criminal Law Compliance for Healthcare Providers, or email us at info@painkillerlaw.com.

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