When Is a Pain Doctor a Drug Pusher?

The NYT ran an exhaustive article today on a the recent conviction of a pain management doctor for his prescribing practices. The article provides a lot of background and wrestles with many of the big questions:

...most doctors prescribe opioids conservatively, and many patients and their families are just as cautious as their doctors. Men, especially, will simply tough it out, reasoning that pain is better than addiction.

It’s a false choice. Virtually everyone who takes opioids will become physically dependent on them, which means that withdrawal symptoms like nausea and sweats can occur if usage ends abruptly. But tapering off gradually allows most people to avoid those symptoms, and physical dependence is not the same thing as addiction. Addiction — which is defined by cravings, loss of control and a psychological compulsion to take a drug even when it is harmful — occurs in patients with a predisposition (biological or otherwise) to become addicted. At the very least, these include just below 10 percent of Americans, the number estimated by the United States Department of Health and Human Services to have active substance-abuse problems. Even a predisposition to addiction, however, doesn’t mean a patient will become addicted to opioids. Vast numbers do not. Pain patients without prior abuse problems most likely run little risk. “Someone who has never abused alcohol or other drugs would be extremely unlikely to become addicted to opioid pain medicines, particularly if he or she is older,” says Russell K. Portenoy, chairman of pain medicine and palliative care at Beth Israel Medical Center in New York and a leading authority on the treatment of pain.

I've had several recent posts on opioids and pain and have wondered how common these prosecutions are. The article offers some perspective on the question:

How typical is McIver’s case? On the D.E.A.’s Web site the agency lists some of the doctors who have been prosecuted, and their crimes. There are some strikingly obvious and egregious cases of shady dealings: a doctor who wrote prescriptions in a gas station for a person who wasn’t present; one who sold blank prescription forms; one who dispensed drugs to people who then shared them with him.

But not every doctor’s intent to deal drugs is as clear. McIver was a crusader for high-dose opioids, credulous with patients and sloppy with documentation — a combination unwise in the extreme. But some of his patients said he was the only doctor who ever brought them relief. Prosecutors never brought any evidence that he intended to write prescriptions to be abused or sold. They never accused him of profiting from his patients’ diversion except in collecting office fees. His patients who diverted or abused their opioids all testified they got their prescriptions by consistently lying to him. Nor is it convincing that his prescriptions killed Larry Shealy.

No one has analyzed the various prosecutions of pain doctors, so it is hard to determine how many of them look like McIver’s. The D.E.A.’s list is incomplete. There have been many cases like McIver’s, and most of these cases are not listed on the D.E.A.’s Web site. (One possible reason for this omission is that some of these cases are still being appealed.) And many cases that do appear on the list detail only vague crimes: convictions for prescribing “beyond the bounds of acceptable medical practice” or “dispensing controlled substances . . . with no legitimate medical purpose” — which is how the agency will most likely describe the McIver case if it ever includes the case on the list.

The D.E.A. claims that it is not criminalizing bad medical decisions. For a prosecutable case, Caverly, the D.E.A. officer, told me: “I need there to be no connection of the drug with a legitimate medical condition. I need the doctor to have prescribed the drug in exchange for an illegal drug, or sex, or just sold the prescription or wrote prescriptions for patients they have never seen, or made up a name.”

I read this statement to Jennifer Bolen, a former federal prosecutor in drug-diversion cases who trained other prosecutors and now advises doctors on the law. “That’s a good goal,” she said. “I don’t think they have yet reached that goal.” McIver’s case had no such broken connection, and in many cases the government has not produced testimony of intent to push drugs, providing evidence only of negligence or recklessness.

The author provides some recomendations for law enforcement and medical review:

The dilemma of preventing diversion without discouraging pain care is part of a larger problem: pain is discussed amid a swirl of ignorance and myth. Howard Heit, a pain and addiction specialist in Fairfax, Va., told me: “If we take the fact that 10 percent of the population has the disease of addiction, and if we say that pain is the most common presentation to a doctor’s office, please tell me why the interface of pain and addiction is not part of the core curriculum of health care training in the United States?” Will Rowe, the executive director of the American Pain Foundation, notes that “pain education is still barely on the radar in most medical schools.”

The public also needs education. Misconception reigns: that addiction is inevitable, that pain is harmless, that suffering has redemptive power, that pain medicine is for sissies, that sufferers are just faking. Many law-enforcement officers are as in the dark as the general public. Very few cities and only one state police force have officers who specialize in prescription-drug cases. Charles Cichon, executive director of the National Association of Drug Diversion Investigators (Naddi), says that Naddi offers just about the only training on prescription drugs and reaches only a small percentage of those who end up investigating diversion. I asked if, absent Naddi training, officers would understand such basics as the whether there is a ceiling dose for opioids. “Probably not,” he said.

There is another factor that might encourage overzealous prosecution: Local police can use these cases to finance further investigations. A doctor’s possessions can be seized as drug profits, and as much as 80 percent can go back to the local police.

There are ways to prevent diversion without imprisoning doctors who have shown no illegal intent. They are increasingly used — but state authorities and doctors need to push even harder. The majority of states, South Carolina among them, do not yet have prescription monitoring — a central registry of prescriptions, which could help catch people getting opioids from several different doctors and pharmacies. Doctors should use more urine and blood tests, including screens that can tell quantities of drug present.

Last year, state medical boards took 473 actions against doctors for misdeeds involving prescribing controlled substances. In many cases, their licenses were pulled. Physicians can also lose their D.E.A. registration, and with it the right to prescribe controlled substances. A few dozen do every year, although there is considerable overlap with medical-board actions. Washington is the first state to recommend that only pain specialists handle high-dose opioids; other states are likely to follow.

This article seemed to have a bias, but generally seemed to do a good job of providing multidimensional context. However, including this line without context bothered me:

There is another factor that might encourage overzealous prosecution: Local police can use these cases to finance further investigations. A doctor’s possessions can be seized as drug profits, and as much as 80 percent can go back to the local police.

How often does this happen? I'm sure it happens but it paints a rather sinister picture of police and prosecutors. If the practice is widespread enough to mention, some context seems appropriate.

The article closes with an anecdote that provides some perspective on the aggressive, unorthodox practices of Dr. McIver:

With his typical imprudence, McIver told Ben: “You don’t worry about it, take whatever you need to be pain-free, if it takes 2 pills or 10 pills. If you’re taking too much and slurring your words, you know to back off. Use some common sense.” At McIver’s request, Ben kept a diary of what he took and how much. He reached a top dosage of five 80-milligram pills of OxyContin four times a day — more opioids than Shealy was taking at the time of his death. “I never felt high,” he said. “They helped my pain. I could get out and work, use the bulldozer. I was working a 250-head cattle herd. I was doing everything relatively pain-free because of the drugs. They gave me my life back.”

[hat tip: Matt]