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Perception Versus Reality: The Facts Regarding Prosecutions and Disciplining of Doctors For Abuses Involving Controlled Substances
Judy McKee, End of Life Health Care Project Coordinator and Counsel
In the July-August 2008 issue of the NAAGazette, the article, “Finding the Proper Balance,” introduced readers to the Balanced Pain Project Initiative (BPPI) in which NAAG has partnered with the Center for Practical Bioethics and the Federation of State Medical Boards. The partnership was formed to answer questions involving the extent and types of criminal prosecutions of doctors for violating state and/or federal controlled substances laws and to examine the extent and types of violations handled by state medical boards. One of the results of the more than three-year project is an article that was published this month by Pain Medicine, titled, “Physicians Charged with Opioid-Analgesic Prescribing Offenses.”
NAAG participated in the research for the article by examining 335 criminal cases—and their affiliated state medical board and the U.S. Drug Enforcement Administration (DEA) administrative actions—brought by state and federal authorities during the study time period, 1998 to 2006. Of the criminal prosecutions, 178 were brought by state authorities and 157 were brought by federal authorities. The number of doctors prosecuted represents less than .05 percent of the number of practicing physicians active in 2003. When one adds the state and DEA administrative cases against physicians who were not criminally charged, an additional 390 physicians, the research found only .1 percent of physicians that were involved in all types of proceedings.
One of the criticisms by the pain patient advocate community is that researchers use the wrong “denominator” when analyzing these types of cases. For instance, in an article in American Medical News concerning the Pain Medicine article, Dr. Alex DeLuca, a senior consultant to the Pain Relief Network, stated that researchers should “only count doctors who could possibly come to the attention of authorities, not doctors who don’t prescribe opioids or who occasionally prescribe them.”1 Since there is no current methodology for discovering how many physicians fall into this category,2 the study also broke out the specialties, both board-certified and self-identified, of the doctors who had been subject to prosecutions and/or administrative proceedings. Contrary to conventional wisdom,3 only 3.5 percent of the doctors involved self-identified as, or were certified as, pain management specialists. By far the largest group of doctors —39.3 percent — practiced as general or family medicine doctors. The second largest specialty group was internal medicine doctors who comprised 23.7 percent of the study group. Thus, those doctors who are generally on the “front line” of patient care made up 60 percent of the doctors who had been subject to adverse proceedings. Unfortunately, many of these doctors lack specific training in pain and/or addiction medicine.
Another interesting way to look at the criminal prosecutions is the behavior that prompted the criminal charges. Nearly 90 of the doctors charged were involved in prescribing for themselves or for family members who were not patients or in sharing pills with patients. Another 19 were charged and found guilty of sexual misconduct in connection with their prescribing of opioids. More than 20 were involved in prescribing controlled substances in connection with rogue Internet pharmacies. If these 130 doctors, whose conduct cannot be considered acceptable under any standard, are taken out of the calculation, then only .03 percent of doctors in practice were criminally charged with prescribing outside the realm of normal medical practice.
The research also looked at the gender, age range and type of degree obtained. More of the study’s physicians were male, age 55 or over, and had doctor of osteopathy degrees than did the total number of physicians in the active patient-care workforce. Study physicians were also less likely to be board certified in any of the specialties.
Of particular interest to the BPPI partners was the outcome of the criminal prosecutions. Of the doctors criminally charged, 79.5 percent pled guilty or no contest to at least one of the criminal charges. Subsequently, of the 20.5 percent who did not initially plead guilty to the charges, 90.6 percent eventually pled or were found guilty on at least one count.
The study has its shortcomings. The primary problem is that it is extremely difficult to find all of the criminal prosecutions that have occurred at the state and local level because there is no systematic methodology for listing these. Also, although DEA cooperated in the identifying of physicians charged federally, the FBI also handles some of the investigation in those cases when they involve significant healthcare fraud. Although the researchers feel confident that the vast majority of criminal prosecutions was identified and analyzed, there were undoubtedly other cases that were not found.
Another shortcoming of the study is the unavailability of data from states and localities as to the number of investigations launched yearly. Some of physicians’ concerns are focused on the disruption of one’s practice, finances and life from criminal and administrative investigations for violations of controlled substances laws, regardless of whether those investigations eventually result in prosecutions or medical board sanctions. Although the DEA provided data on the number of investigations that it has conducted through the years, there is no similar source of information for the number of state and local investigations taking place against doctors.
There were a handful of cases (13), deemed the “outlier,” cases that were examined more closely. These involved situations where sentences were overturned on appeal because the trial court did not appropriately apply the sentencing guidelines, where jury instructions were faulty, where charges were eventually dismissed, and where physicians were found “not guilty” at trial.
The BPPI partners undertook this study because of the frequent concern expressed by pain patient advocates that prosecutions of physicians for violations of the controlled substances laws are placing a severe “chilling” effect on physicians in their treatment of those in chronic pain. The research indicates, however, that physicians need not fear official scrutiny if they follow established, acceptable procedures in prescribing for chronic pain patients. Hopefully, the study’s well-researched facts will help to change any faulty perception by the medical community that prosecutors are “gunning” for doctors who prescribe opioids. Instead, it is the hope of the BPPI partners that the research will open up dialogue among doctors, law enforcement officials and those who advocate for patients in pain so that steps can be taken by each group to achieve the balance that is so vital in addressing both a doctor’s duty to medically help those in chronic pain and law enforcement’s obligation to stem the increased illegal diversion of prescription drugs.
 Kevin V. O’Reilly, Legal Risk for Prescribing Painkillers is Small, Study Says, amednews.com (Sep. 8, 2008) http://www.amaassn.org/amednews/2008/09/prsb0908.htm.
 O’Reilly’s article, id., also quoted Ronald T. Libby, author of The Criminalization of Medicine: The War on Doctors, as saying that “DEA could provide data about the highest opioid prescribers in each area and then researchers could investigate how many of them faced charges.” However, the only means by which DEA could obtain such data is through the various states’ prescription monitoring program databases that are generally not accessible to law enforcement unless there is probable cause to suspect that criminal behavior is occurring.
 “The government is waging an aggressive, intemperate, unjustified war on pain doctors.” Ronald T. Libby, Treating Doctors as Drug Dealers, The DEA’s War on Prescription Painkillers, Cato Institute, Policy Analysis no. 545 (June 6, 2005).
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