The Legal Pitfalls in Prescribing Opioids

Carolyn Buppert, NP, JD

Disclosures

November 18, 2009

In This Article

Introduction: Could the Patient be a Drug Dealer?

Clinicians who have the legal authority to prescribe opioids ask: How do I know when a patient really has chronic pain, or whether he or she is seeking drugs to sell? The question is understandable in light of 2 recent cases in which clinicians were prosecuted for or are facing discipline for prescribing opioids to drug dealers.

Recent Legal Cases Involving Prescribers

In case 1, a high school student ingested oxycodone pills and died. In the course of the investigation into his death, police found that the source of the pills was a nurse practitioner. The nurse practitioner had prescribed the pills for a young man who presented as a patient. The man sold the pills to high school students. The nurse practitioner has been charged with unprofessional conduct, including incompetence, negligence, and malpractice, by the state Board of Nursing. The statement of charges asserts that the nurse practitioner prescribed extremely high doses of opioids to 9 patients for complaints of chronic, noncancer pain. Such treatment, said the Board, fell below the standard of a reasonably competent advanced registered nurse practitioner. Furthermore, the nurse practitioner is charged with treating these patients without appropriate assessment or ongoing monitoring. The patients' presenting complaints included back pain, knee pain, soft tissue injuries, fibromyalgia, and major depressive disorder.[1]

In case 2, a physician operated a pain practice out of his home. He was arrested, tried, convicted of drug trafficking, and served time in prison. The prosecution's case was based in part on the fact that the physician had prescribed very large doses of controlled substances to some patients who were drug dealers known to the police. The physician's side of the story was that he thought his patients had legitimate pain, he was duped by some patients, and his prescriptions were written in good faith. His case was appealed and retried and, at one point, a judge opined that his practice was for the most part appropriate but that he apparently ignored signs that some of the patients were drug dealers.[2]

Overreacting by Undertreating

The way to avoid scrutiny for overprescribing is not to undertreat pain. Undertreatment of pain has been called "a national problem."[3] Part of the reason that clinicians undertreat pain is believed to be their fear of being scrutinized for writing prescriptions for too many opioids.[4,5] Although few, there are cases where clinicians have been sued for undertreating pain. In 1 case, the family of a man who was in pain during the final days of his life sued the man's physician and won damages of $1.5 million.[6]

Legal cases tend to arise in circumstances when there is excessive prescribing for chronic, noncancer pain, as compared to acute pain or cancer-related pain. Clinicians who want to practice on safe ground should be aware of the standards offered by professional associations, state and federal agencies and universities for prescribing controlled substances for chronic, noncancer pain. This article discusses those standards.

Clinicians need to satisfy 2 agencies when it comes to prescribing opioids. One is the US Drug Enforcement Administration (DEA), the agency charged with regulating controlled substances and enforcing the federal controlled substance laws. The other is the clinician's state licensing board.

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