When Is Prescribing Painkillers Considered A Crime?Medical Defense
As the number of fatal overdoses linked to prescription painkillers has increased, so has the number of doctors who are facing criminal charges for overprescribing painkillers and other controlled medications. The issue gained attention several years ago when Michael Jackson’s doctor, Conrad Murray, was convicted of involuntary manslaughter in Jackson’s 2009 death.
Los Angeles Deputy District Attorney David Walgren said Murray was “playing Russian roulette with Michael Jackson’s life” by administering the surgical anesthetic propofol to put Jackson to sleep in “a reckless, obscene manner.” Dr. Murray served two years behind bars.
Michael Jackson’s doctor, however, is only one of the scores of doctors who have been prosecuted in recent years for overprescribing painkillers. Most of the prosecutions are for violations of the federal Controlled Substances Act or similar state laws.
To convict a physician for criminally overprescribing painkillers, a prosecutor must prove – beyond a reasonable doubt – that the doctor knowingly and intentionally prescribed the drug outside “the usual course of professional practice” or not for a “legitimate medical purpose.”
WHY ARE MORE DOCTORS FACING CRIMINAL CHARGES?
University of Maryland law professor Diane Hoffmann explains that doctors who treat patients with chronic pain face a serious dilemma because they have to trust what their patients tell them regarding their pain. “Doctors are not supposed to be law enforcement agents. They’re supposed to believe their patients,” Hoffman said.
Historically, medical negligence cases have been handled in the civil courts when a victim or victim’s family files a medical malpractice lawsuit. However, in the last two decades, growing numbers of doctors have faced criminal charges.
For example, New Mexico doctor Pawan Kumar Jain was charged in 2015 with unlawfully dispensing prescription painkillers, primarily oxycodone and methadone, to patients outside the usual course of medical practice and without a legitimate medical purpose. Jain accepted a plea agreement and pled guilty to one count of unlawfully dispensing a controlled substance and to one count of Medicare fraud. In his plea agreement, Jain admitted to operating a “high volume practice.” His medical license was suspended and eventually revoked by the New Mexico Medical Board.
One reason for the increase in the prosecutions of physicians over the last twenty years is the emergence of OxyContin, a time-released version of the opioid drug oxycodone. OxyContin was first brought to market in 1995 by Purdue Pharma. In only eight years, OxyContin sales reached $1.6 billion and accounted for 94 percent of Purdue Pharma’s revenue.
Doctors began prescribing pain meds in record numbers, and it wasn’t just OxyContin. In 2001, pain medication prescriptions jumped 150 percent in that single year. From 1997 through 2005, prescriptions for OxyContin and other painkillers jumped by 600 percent.
Investigations and prosecutions of doctors are increasing in Texas and in every other state. One problem is that merely investigating a doctor can put that doctor out of business – with or without a prosecution. Simply the stigma of an investigation can destroy a doctor’s practice. Even if no charges are filed, a doctor isn’t allowed to write prescriptions during the course of a criminal investigation. And if you can’t treat patients, they’ll seek treatment elsewhere. Thus, any physician under investigation regarding painkiller prescriptions should immediately consult a medical license defense attorney with extensive criminal defense experience.
IS THE PRACTICE OF MEDICINE BEING OBSTRUCTED?
Although the number of doctors prosecuted for overprescribing painkillers is small, the American Medical Association has warned that such prosecutions have the effect of impairing the practice of medicine. The AMA believes that civil lawsuits are sufficient to hold doctors accountable. In the AMA’s own words, the organization opposes the “attempted criminalization of health care decision-making especially as represented by the current trend toward the criminalization of malpractice.”
But a very few doctors really do prescribe painkillers like OxyContin, Vicodin, Percocet, and Dilaudid for profit, sometimes without even conducting a medical examination. Intentional overprescribing is usually linked to Medicaid fraud – billing Medicare for prescriptions that patients don’t need.
A Florida doctor, Barry Schultz, was convicted in 2015 of overprescribing pain medication. One juror told the Sun-Sentinel that he voted to convict Schultz after learning the doctor had prescribed 20,000 oxycodone pills in a ten-month period – to one patient.
In 2016, U.S. Surgeon General Vivek H. Murthy called for a “cultural shift in how we think about addiction.” The Surgeon General urged doctors to be more cautious about prescribing dangerous painkillers – even to patients who may genuinely need them. Prescription painkillers have killed more than 200,000 people since 1999, according to data compiled by the Los Angeles Times.
Pain is a costly reality. Economists at Johns Hopkins University, writing in the Journal of Pain, estimate that the annual economic cost of chronic pain in the United States is now up to $635 billion a year, including the indirect cost of pain from reduced workplace productivity. The researchers defined “people with pain” as those with chronic pain that restricts their ability to work, those diagnosed with joint pain or arthritis, and those with a disability that impairs their capacity for work.
WHY IS ACCURATE RECORD-KEEPING IMPERATIVE FOR DOCTORS?
Doctors are now closely scrutinized to make sure that they are prescribing responsibly, documenting properly, and not personally abusing or diverting pain medicines. Federal law requires licensed healthcare professionals to maintain full records of all controlled substances received and dispensed in their practices. Examining these records is one of the first things investigators will do when a doctor comes under suspicion.
Failure to maintain proper records may be charged as a misdemeanor or – if a physician knowingly and intentionally provides false material information or omits material information from a report or record that he or she is legally required to keep – as a felony. A conviction on the felony charge is punishable by up to four years in prison, a fine of up to $250,000, and a one-year period of supervised release.
Doctors in pain practices and general practitioners who dispense painkillers should make certain that they are in full compliance with every aspect of the law or they may face unexpected consequences. The regulations are extensively detailed, but they must be understood and adhered to in order to avoid conduct that may be construed as illegal.
If you are a physician and you come under investigation, you’ll need the counsel of a medical license defense attorney who also has significant criminal defense experience. The consequences of a criminal conviction could include both incarceration and the loss of your medical license.