Recent press accounts and articles regarding cases in which physicians have been convicted of criminal charges relating to prescribing opioid analgesics [1–5] have raised concern among prescribing doctors. Earlier research indicate that very few physicians (fewer than 50 per year) have been charged with such criminal offenses [6–9] that prosecutors are reluctant and unlikely to prosecute doctors for prescribing-related decisions involving controlled substances (CS) [9,10], and—that after education about using opioids for pain—physicians become more comfortable prescribing them , many still fear unjustified prosecution or sanctioning. In addition, doctors have been shown to have difficulty identifying standardized patients who deceptively claim to be in severe pain . Consequently they tend to underprescribe opioids for pain [6,7,11,13–19]. Such concerns are exacerbated by recent journalistic articles [4,20] and news stories that suggest—without firm research evidence—that pain specialists are those most likely to be involved in such cases.
To date, no multiyear, nationwide study of actions taken against physicians so charged and/or administratively reviewed has been available. This study was undertaken by the Center for Practical Bioethics (CPB), in partnership with the National Association of Attorneys General (NAAG) and Federation of State Medical Boards (FSMB), to answer the following kinds of questions: How many physicians actually have been criminally charged or reviewed by state medical boards for offenses related to the prescribing of opioid analgesics? What were the characteristics of these physicians? What pleas have the physicians charged with criminal offenses entered? Have most of the physicians involved in these cases been pain specialists?
The following hypothetical scenarios provide examples of the types and ranges of cases addressed in this study. Representing typical offenses and charges, they indicate how physicians might become involved in cases of this type, and why they might have been charged with different, specific criminal, and administrative offenses.
Doctor A, now in his 70s, plans to retire soon from his small, rural solo practice. Most of his current patients are elderly, and many come to him complaining of age-related minor aches and pains as well as more severe and disabling pain caused by diseases common to older populations such as cancer (and neuropathies related to its treatment), osteoarthritis, spinal stenosis, and various neuropathies and neuralgias. Informed by pharmaceutical sales representatives who regularly visit his office that sustained-release, opioid-based analgesics have become available to control many types of severe pain throughout the day, Doctor A begins issuing high-dosage prescriptions of these drugs for patients whose conditions include arthritis pain and severe headaches. When one of these patients nearly dies by accidentally overdosing on her prescribed analgesics, the patient's family complains to the state medical board. Checking Doctor A's patient records, Board investigators find that many of his recent CS analgesic prescriptions appear to have been medically unnecessary and clinically inappropriate. The Board sanctions the doctor for misprescribing and for violating accepted standards of medical care. It levys a fine, puts his practice on probation, and suspends his Drug Enforcement Administration (DEA) CS registration until he completes continuing medical education classes to learn proper methods of prescribing opioid-based analgesics.
A man comes to Doctor B for chronic neck and back pains. The pains were caused, he says, by an auto accident earlier in the year. The man tells the doctor that over-the-counter remedies and back exercises are providing insufficient relief, and that the accident-related pain now is keeping him from sleeping well or holding a job. Doctor B prescribes high-dosage units of oxycodone, together with a muscle relaxant. The patient keeps his scheduled follow-up appointments, during which Doctor B monitors the status of his pain and renews his prescriptions. Soon after he fills each of these prescriptions, however, the patient sells the oxycodone to a local drug dealer. When the dealer is arrested, investigators find that some of his drugs originated as prescriptions issued by Doctor B. A check of the doctor's records shows that he occasionally prescribed CS analgesics without first giving physical exams, and that in those instances, his office nevertheless billed Medicare for such exams. Satisfied on the basis of the inconsistent physical examinations and questionable billings that Doctor B probably is not really practicing medicine, the local district attorney decides that the doctor either knew or should have known that his patient's oxycodone prescriptions ended up being sold on the street. He files criminal charges against Doctor B for drug trafficking and healthcare fraud.
Although Doctor C has been financially successful in the past, his medical practice now is struggling, and he is having trouble making payments on his large house, boat, and other personal debts. He decides to supplement his income by selling presigned, blank prescription pads and by dispensing samples of opioid-based analgesics without accompanying examinations or prescriptions, for cash, to anyone who comes to the back entrance of his clinic and requests such drugs by name. The doctor maintains his illicit inventories by removing containers of opioid-based drugs at night from the supply rooms of local hospitals. Tipped off by an informant, federal investigators send an undercover agent to Doctor C's office. As planned, the agent succeeds in purchasing the opioid-based analgesics he requests, for cash, from Doctor C without an examination or receiving a prescription. The doctor then is charged with prescription fraud; illegally obtaining, possessing, and distributing CS; and racketeering.