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Fear of Prosecution for Prescribing Opioids Exaggerated, Law Study Concludes: Growing Sophistication by the States Leading to Leniency

Eastman, Peggy

doi: 10.1097/01.COT.0000293343.10844.c5
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WASHINGTON, DC—Physicians overestimate their level of regulatory scrutiny when they use opioids legitimately in aggressive pain management. That is the conclusion of a four-state study presented here at a news briefing sponsored by the American Society of Law, Medicine & Ethics (ASLME).

A second study presented at the briefing showed that while state medical boards still receive more complaints on opioid overprescribing than on inadequate treatment of pain, they are more likely today than they were in 1991 to recognize that opioids are underused to treat cancer pain.

Both studies are included in the Spring 2003 issue of ASLME's journal, The Journal of Law, Medicine & Ethics, which is a special issue on improving pain treatment.

“Doctors are hypersensitive to the legal risk of prescribing narcotics and to prosecution,” said Sandra Johnson, JD, Provost and Professor of Law at Saint Louis University, in opening remarks at the briefing.

Despite strides in pain management in the last five years, she said, undertreatment of pain remains a chronic problem. On any day in the United States, 75 million Americans are suffering from chronic or acute pain, she said.

“We undertreat and we neglect pain, especially in minorities, women, and the elderly. Health policy is cyclical. It tends to move from sentinel event to sentinel event. In pain, we move from hurt to hurt.”

Diane Hoffman, JD, Professor of Law at the University of Maryland School of Law, noted that there is now a good body of literature showing doctors fear disciplinary action by state medical boards.

She cited use of OxyContin as an example of an area of prescribing where doctors fear they will be especially scrutinized. Reports of diversion of this drug from legitimate users to addicts has made headline news in the last couple of years, and drug and law enforcement agencies have linked the medication to overdose deaths, pharmacy robberies, and other criminal activities related to obtaining OxyContin.

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More Attuned to Overprescribing than Underprescribing

Even though state medical boards are making an attempt to distinguish appropriate from inappropriate prescribing of opioids and are more likely to follow physician guidelines in their reviews, Ms. Hoffman said, boards still are more attuned to overprescribing than to underprescribing for the relief of pain.

In the four-state study, lead author Stephen J. Ziegler, JD, Assistant Professor at Indiana University School of Public and Environmental Affairs, studied the responses of 84 county prosecutors in Maryland, Connecticut, Oregon, and Washington.

The prosecutors were surveyed on their knowledge, opinions, and attitudes toward opioids and the extent to which physicians are prosecuted for aggressive pain management with these drugs. The majority of prosecutors said that no physician in their jurisdictions was prosecuted over the past year for offenses relating to the prescribing of opioids, and half of the prosecutors indicated that the likelihood of referring suspected cases to the medical board—rather than prosecuting—was 60% or higher.

The overall conclusion of the study was that prosecutions for the prescription of opioids are rare.

In this four-state study, prosecutors said a physician's intent was critical—especially in prescribing opioids for a terminally ill patient. Ultimately, it is the prosecutor who must decide if criminal intent—which is difficult to prove—exists, and whether the physician should be charged with a crime.

Most prosecutors surveyed noted that the primary source of prescription drug diversion in their state is deceptive patients, not physicians.

In the second study, Ms. Hoffman and her colleagues studied the attitudes of medical board members of 38 state medical boards participating in the survey. Overprescribing of opioids is still more often seen as a clear violation of the standard of care and a clear threat to patients than underprescribing.

But the good news from the study is that in addition to recognizing that opioids are underused as analgesics for cancer pain, more respondents recognized the difference between addiction and physical dependence.

While medical board members remain more skeptical about prescribing opioids for noncancer pain than for cancer pain, they are more likely than they were in 1991 to consider prescribing opioids to patients with chronic noncancer pain for more than several months as “acceptable medical practice.”

Still, one respondent commented, “If we get a complaint that a doc's prescribing OxyContin 80 mg four times a day or three times a day, we'll ask the pharmacist if it's a cancer patient. Sometimes the pharmacist doesn't know, but if they tell us it's not a cancer patient, it's more than likely the doctor will get investigated.”

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Electronic Prescription Monitoring

A third study presented at the meeting showed that electronic prescription monitoring programs have not yet been proven successful at tracking the prescribing patterns of controlled pain medications.

The study notes that while federal policymakers have touted the success of computer systems connecting pharmacists and physicians to track prescribing and dispensing patterns of controlled-substance pain medicines, there is little solid evidence to show that these systems work.

Nevertheless, the study showed, fully 17 states have adopted these electronic prescription monitoring systems, the Drug Enforcement Administration (DEA) supports them, and a bill in Congress would establish a US electronic monitoring program of such medications—the National All-Schedules Prescription Electronic Reporting system.

Lead author David Brushwood, RPh, JD, Professor of Pharmacy at the University of Florida, argued that a poorly constructed electronic monitoring system that has not been proven effective could further erode the already tenuous relationship between drug control authorities such as the DEA and physicians regarding the enforcement of regulations regarding the use of these controlled medications.

The studies presented at the news briefing were conducted under the auspices of the Mayday Scholars Program, which is administered by ASLME and funded by the Mayday Fund, a New York City-based private foundation dedicated to alleviating the incidence, degree, and consequences of human physical pain.

© 2003 Lippincott Williams & Wilkins, Inc.
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