Typical investigation tactics include inspection warrants, search warrants, and medical record review. Others may involve undercover work or “follow the money.” Bolen provided one example of what she called a “bad idea”: “two diversion investigators go out to talk to a physician. Physician opens the door and denies his identity.”
“Expert witnesses” is another investigation tactic, with different types of medical experts having specific roles—and an impact in the courtroom (Table 1).
Table 1. Medical Experts
||Their Job||Courtroom Impact|
Also outlined were topics medical experts frequently address in the courtroom (Table 2).
Table 2. Frequently the Topic of Courtroom Testimony by Medical Experts
|Dose and chronicity of prescribing; combination prescribing; morphine equivalent daily dose (MEDD)|
|Lack of individualized patient care|
|Paper over process|
|Medication counts (lack of, failure to discuss with patients)|
|LAO + SAO – same amounts every visit both drugs|
|Lack of physical examination|
|Lack of specialty referrals|
|Failure to address behavioral issues; failure to evaluate abuse/addiction risks and history|
|Failure to follow the treatment agreement|
|Failure to engage in informed consent process|
|Failure to consider non-drug therapies|
|Failure to consider non-opioid medication|
|Copyright 2014, The J. Bolen Group, LLC. All rights reserved.|
Early factors of inappropriate prescribing were described in the 1978 case, US v. Rosen:
- Inordinately large quantity of controlled substances was prescribed.
- Large numbers of prescriptions were issued.
- No physical examination was given.
- Prescriber warned the patient to fill the prescriptions at different drug stores.
- Prescriber gave prescriptions to patient despite knowing (or having reason to know) that patient was diverting the medication.
- Medication prescribed at intervals inconsistent with legitimate medical treatment.
- Prescriber uses street slang to refer to commonly prescribed controlled medications.
- No logical relationship between the drugs prescribed and the condition treated.
- Prescriber wrote more than one prescription in order to spread them out.
In the case of Iyer, a 2009 DEA Administrative Case, the three points of which physicians should be aware were 1) responsibility to issue prescriptions for a legitimate medical purpose while acting in the usual course of professional practice; 2) responsibility to monitor patients (as a part of routine clinical practice) for warning signs that they are personally abusing or diverting their medications; and 3) failure to fulfill these responsibilities constitutes acts inconsistent with the public health and safety.
Attendees were encouraged to use the cases Bolen presented to evaluate their own practices and create checklists of areas for improvement. “Harm reduction strategies” that providers can embrace to head off potential lawsuits include patient and staff education; addressing CNS issues and related medical conditions (sleep apnea, multiple CNS depressants in medication therapy, sleep hygiene); weight loss and smoking cessation; alcohol education and compliance measures; safe use, storage, and disposal education, and coordination of care issues.