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INSIGHT: Helping Innocent Physicians Avoid Prosecution for Prescribing Opioids

Last updated: 08-03-2020

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INSIGHT: Helping Innocent Physicians Avoid Prosecution for Prescribing Opioids

When considering prescribing opioids to address patients’ chronic and severe pain, physicians face a difficult decision to either offer an essential medication proven to be one of the most effective pain relievers or decline prescribing a class of drugs well-known for its links with abuse and addiction.

In today’s war on opioids, physicians must take into account issues beyond their primary concern for their patients’ well-being. They also must contend with the possibility that, in providing well-intentioned and thoughtful care, they expose themselves to charges of acting as drug dealers.

Facing significant criminal penalties, ethical, rational doctors sometimes choose to plead guilty even if they are innocent of the charges. Must this be so? And if not, what steps can physicians take to better defend themselves against accusations and prosecution?

In his seminal 2014 article, “Why Innocent People Plead Guilty,” the Honorable Jed S. Rakoff of the U.S. District Court for the Southern District of New York noted criminal jury trials are highly uncommon in today’s federal court system, with 19 out of every 20 criminal convictions being obtained through guilty pleas. A Pew Research Center report released in 2019 also verifies the very low trial rates (2%) for 2018 federal criminal cases.

Plea bargains do have their place, as they reduce pressure on an already clogged judicial system and allow prosecutors to secure convictions of clearly guilty parties at a lower cost to taxpayers. As Judge Rakoff further notes in his article, however, this well-established plea bargain system has put inordinate pressures on defendants to enter into agreements labeling themselves as guilty even for crimes that they did not commit.

It should be noted that—like the presence of some overzealous prosecutors among the majority of well-intentioned prosecutors—some physicians charged with drug trafficking are, indeed, guilty of the crimes of which they stand accused. To try to quickly identify these bad actors, the Department of Justice has developed algorithms that single out physicians who write a significantly higher number of opioid prescriptions or prescribe significantly higher dosages of opioids than their peers.

Unfortunately, such algorithms often fail to distinguish between physicians who are unlawfully distributing a controlled substance and those whose prescriptions are medically justified. In other words, the prosecutorial net is capturing the innocent along with the guilty.

And these innocent physicians often feel pressured to plead guilty, and many do plead guilty, because of the severity of potential punishment upon losing at trial, which is typically up to 20 years in prison, combined with the physicians’ concern that they might lose at trial despite being innocent.

That concern is understandable considering the constant stream of media about the causes and remedies of the opioid epidemic and the likelihood that the judges and juries hearing the cases know someone struggling with opioid addiction.

How can physicians minimize the likelihood they will face opioid-related criminal prosecution? As with most things, an ounce of prevention is worth a pound of cure.

Nonspecialists in pain management should typically refer patients on high dosages of opioids—even those responding well to their treatment and with little evidence of addiction or abuse—to board-certified specialists. This can provide a measure of protection in two ways: it conforms to guidance from the Centers for Disease Control and Prevention, and a specialist is usually better situated to defend a legal attack on his or her medical decision-making with regard to the use of opioids in pain treatment.

With respect to alleged red flags (such as the use of multiple pharmacies to fill prescriptions and frequent requests for early refills), some physicians have started to feel pressure to “fire” patients when those red flags appear. Although prosecutors routinely rely on evidence of a continuation of opioid therapy following the appearance of red flags as proof of criminal intent, there are less-severe alternatives to firing a patient every time a red flag appears that may not increase physicians’ risk.

When red flags are present, physicians should ensure their rationale for continuing treatment with opioids is fully explained in the patient record. Discussions with the patients about the physician’s concerns should be noted, along with the findings and the strategies implemented to prevent problems such as diversion or abuse.

Also, while the vast majority of physicians are motivated by honest concern for their patients’ welfare, this should not devolve into an overly friendly rapport with the individuals they treat.

It is common for law enforcement authorities to have an agent pretend to be a pain patient and lie to the physician in order to secure an opioid prescription—and to document the encounter via a hidden audio or video recording device.

Following such an encounter, arguments of being framed are often unpersuasive, typically because the agents have successfully attempted to get the doctor to act in an overly familiar manner that does not appear consistent with a professional medical encounter. Prosecutors will then characterize this type of encounter as looking more like a street corner drug deal than a medical office visit.

In this same vein, physicians should take note if a patient attempts to nudge them toward referring to drugs by their street names, engage in discussions about which drugs are the most potent (e.g., possibly offering a “kick”), or act in any other way that could be perceived as unprofessional (e.g., sharing a “fist bump” when handing out a prescription).

In today’s environment of plea bargains and enforcement, none of these strategies guarantees that any given physician will avoid criminal prosecution. Each physician’s circumstances and patient population is unique, and a practitioner with statistically high prescribing practices will stand out in the algorithm, or to a judge.

The existence of bad actors means that heightened scrutiny will remain the state of play for the foreseeable future. With that in mind, physicians would be well advised to consult with a trusted defense lawyer who can help them review their practice, develop additional preventive measures, and create a plan to respond should enforcement authorities come calling.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Daniel Martin is a partner at Jones Walker LLP where he is a member of the corporate compliance and white collar defense team. A litigator and trial attorney since 2004, he has significant experience in a broad spectrum of civil and criminal matters, with a focus on defending governmental investigations and enforcement actions, particularly in the healthcare context.

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