LAS VEGAS—From time to time, physicians read or hear media reports about one of their own who has been prosecuted or has faced administrative sanctions or been sued for improperly prescribing narcotics or other controlled substances. These reports typically include few details related to what caused the physician to get in trouble because little information is provided by investigating agencies and boards. The result is an overblown fear of coming under scrutiny by law enforcement or state medical boards, according to Stephen J. Ziegler, JD, PhD, an Associate Professor in the Department of Public Policy, Indiana University-Purdue University Fort Wayne.
This fear based on insufficient information —which Dr. Ziegler terms “rumor-based medicine”—may prompt physicians to opt out of pain management or cut back on their prescribing of opioids. In reality, Dr. Ziegler says, physicians rarely are investigated, arrested, or sued for illegal prescribing. Still, the perception of such risk remains. He points out that it usually is the egregious case that winds up making headlines, but he adds: “There will always be isolated cases in which a good prescriber will be investigated or sued, but they are rare.”
Dr. Ziegler observed that prescribers cannot completely eliminate the likelihood of being investigated or sued, but they can take steps to reduce the risk. “The number one thing that prescribers can do to help them [avoid legal problems] is proper documentation. Most prescribers get in trouble with sloppy or otherwise incomplete records.”
Dr. Ziegler, along with John Burke, President of the National Association of Drug Diversion Investigators, and Joseph P. Furman, JD, of Furman Healthcare Law in Beverly Hills, California, spoke at yesterday’s session titled, “Avoiding the Pitfalls of Rumor-Based Medicine.”
In his talk about criminal investigations into illegal prescribers, Burke echoed Dr. Ziegler’s view that physicians have unrealistic fears of prosecution. “Every time a physician is prosecuted, I think paranoia increases among other prescribers who hear about the prosecution,” Burke said.
Criminal investigations of physicians for suspected illegal prescribing require a lot of time and effort spent gathering information to determine if an investigation is even warranted, Burke said. A significant amount of evidence must be collected to bring a case before a judge or jury, he noted. Often, investigations end with a determination that no criminal conduct occurred or a lack of evidence to proceed, Burke said. Though criminal investigations can turn up evidence of potential administrative violations, then the case is turned over to regulators.
A complaint against a physician does not necessarily turn into a full-blown investigation, he said, adding that many people in law enforcement have to be briefed and the US attorney or state prosecutor has to agree to take the case.
Investigators tend to be tight-lipped about cases until a search warrant is executed or an indictment is handed down “because you can ruin somebody’s reputation—not needlessly, but unfairly.” Releasing information early also can damage a case, Burke said.
Furman, who specializes in advising and defending healthcare providers in administrative cases involving the Medical Board of California, had worked as an attorney in the state’s Health Quality Enforcement Section, which oversees the investigation and prosecution of cases against licensed physicians by the medical board. He, too, believes the media frenzy that often accompanies cases involving doctors suspected of irresponsible opioid prescribing makes it seem that reckless prescribing is a bigger problem than it really is. When the media report on such cases, “politicians jump on the bandwagon and create a lot of pressure on the regulatory agencies and investigators to investigate this perceived phenomenon of improper or careless prescribing,” Furman said. This has the capacity to result in unfounded investigations and regulatory policies and poorly thought out laws, he said. It also may put physicians on edge with respect to opioid prescribing.
Furman’s talk focused on how physicians can avoid administrative consequences from their state medical boards. “This is the most common form of legal problem that physicians are likely to face,” he said.
To lower their chances of medical board sanctions, physicians must keep up to date in their clinical knowledge, particularly with respect to the best therapeutic and prescribing practices, he said. They should demonstrate, through documentation, that they are diligent and conscientious in their prescribing of opioids, Furman advised. This means keeping good medical records. Physical examinations, medical histories, and discussions with patients about the risks and benefits of opioid therapy should be recorded in detail. Doctors also should consider written contracts or agreements with patients for whom opioids are prescribed.