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Federal Prosecution of Pain Docs Impedes Pain Treatment


In the spring of 2003, William Hurwitz, MD, JD, wrote an article (J Am Physicians Surg 2003;8:13) addressing the federal prosecution of physicians who allegedly overprescribe controlled substances for the management of pain. Specifically, he discussed the impact that such prosecution can have on both physicians and patients. Dr. Hurwitz, a pain medicine physician who was in private practice in McLean, Va., wrote the following:

"When doctors are charged [with malpractice by the federal government], their practices are closed summarily, without warning and without provision for cushioning the blow to innocent and suffering patients. Patients are subjected to the abrupt cutoff of medications and clinical support. The stigma that they suffer, both as pain patients on opioid medications in general and as former patients of accused doctors in particular, tends to foreclose most opportunities for effective continuing care."

Just six months later, in September 2003, Dr. Hurwitz was apprehended by the Drug Enforcement Agency (DEA) and state and local agencies in Virginia for multiple drug charges related to his practice. He was arrested on a 49-count indictment that included various violations of the Controlled Substances Act, drug trafficking that resulted in both serious bodily injury and death from overdose in several of his patients, and one healthcare violation.

In April 2004, Dr. Hurwitz is scheduled to be tried for the charges in Alexandria, Va.



A CHILLING EFFECT

Whereas Dr. Hurwitz's case is one of a small number of such prosecutions by the federal government, the highly publicized arrest of alleged diverters has created an atmosphere of fear among pain physicians. Many have dubbed this phenomenon a "chilling effect," which has caused pain physicians to underprescribe opioids for pain for fear of scrutiny by the federal government. And pain management professionals across the board--from doctors to lawyers to members of the law enforcement community--are concerned that underprescribing may be leaving patients in pain without sufficient medications.

"The chilling effect on good doctors is probably the biggest problem of all," Jennifer Bolen, JD, President, J. Bolen Group, Knoxville, Tenn., told Pain Medicine News. "Doctors are scared to death that enforcement agencies will come after them just because they write a prescription for OxyContin [oxycodone, PurduePharma] or other drugs that are way up on the radar screen."

John F. Peppin, DO, FACP, who is the owner of the Iowa Pain Management Clinic in Des Moines, explained the important role that pain management plays in society.

"Pain has a tremendous physiologic, sociologic, psychological and existential impact on the individual and society, is undertreated and underassessed, and costs our society over $100 billion each year," he said. "What has undoubtedly made the most tremendous impact on pain relief and cost savings to chronic pain are opiates. Physiologically you cannot find medications as safe as these drugs. Treating pain well saves money, lives, marriages and people in the millions."



IS THE CHILLING EFFECT A MYTH?

Following Dr. Hurwitz's arrest, the DEA issued a press release on October 30, 2003, attempting to appease the concerns about the threat of federal prosecution of physicians who prescribe controlled substances. In it, the DEA argued that most pain physicians practice medicine responsibly, and that their chances of being prosecuted are minimal. The statement reads as follows:

"The vast majority of practitioners registered with DEA comply with the requirements of the Controlled Substances Act and prescribe controlled substances in a responsible manner in treating their patients' medical needs."

In fact, the number of physicians who overprescribe pain medications is minimal, according to several sources.

An article published in the South Florida Sun-Sentinel (November 30, 2003) stated that fewer than 3% of Florida's medical professionals prescribe the majority of prescriptions annually. The story, which investigated the number of pharmacy billings for prescription pain medications in Florida during an eight-month period, found that only six doctors were responsible for ordering more than $1 million worth of prescription pain medications, while most of the state's aproximately 57,000 medical professionals prescribed less than $100,000 worth of pain medications each during the same period. Furthermore, prescription drug-related deaths in the state during that period were linked to many of the doctors prescribing pain medications in high volumes, according to the article.

In terms of the total number prosecutions, approximately 30 cases against doctors and other pain professionals are pending or proceeding across the United States, according to the Association of American Physicians and Surgeons.



FEDERAL PROSECUTION--A REAL THREAT

Despite the small number of federal prosecutions, the fact remains that prescription medications are increasingly being used recreationally; the nonmedical use of OxyContin quadrupled from 1999 to 2001, according to the DEA.

This increase has led the U.S. government to increase its scrutiny of medical practices.

"Investigations have had a definite chilling effect," said Scott M. Fishman, MD, Professor of Anesthesiology and Chief of the Division of Pain Medicine at the University of California, Davis School of Medicine and author of the book The War on Pain.

"For the DEA and the Department of Justice to deny this is disingenuous. Doctors who have undergone these investigations say it was hell. Agents come in with a great deal of bravado and devastate your practice and your life," he told Pain Medicine News.

Dr. Hurwitz also wrote about the prosecution of pain management professionals in an article he called the "The Police State of Medicine."

On August 31, 2002, he stated on his Web site www.DrHurwitz.com:

"In spite of the increasing expert support for opioid therapy, physicians have received mixed signals regarding the acceptability of this treatment. Over the last couple of years, public attention has been focused on OxyContin, with stories of overdose deaths, pharmacy robberies, and allegedly corrupt doctors. State medical boards have not uniformly accepted expert professional opinion. But a more ominous development is the increasing pace of state and federal criminal prosecution of physicians engaged in pain practice. This is apparently part of a federally coordinated strategy to stop the diversion of OxyContin and other prescription medications at the source--by targeting doctors whose practices focus on medical pain management."




IN SUPPORT OF DR. HURWITZ

Siobhan Reynolds, Executive Director of the Pain Relief Network, New York City, and the spouse of one of Dr. Hurwitz's patients, believes Dr. Hurwitz not only practiced safe medicine but saved her husband's life.


"I didn't know that pain could be that debilitating," she said. "My husband's pain got worse and worse, and my life became a complete battle to convince doctors to prescribe anything just to keep him from killing himself."




Her husband, Sean E. Greenwood, of New York City, suffered from Ehlers-Danlos syndrome, a debilitating and painful hereditary connective tissue disorder. During the months that Dr. Hurwitz treated Mr. Greenwood, he prescribed a variety of opioids, adjusting the time of day to take them based on their side-effect profiles to improve his quality of life, according to Ms. Reynolds. "His pain was more tolerable," she said. "He was up and walking around. He became functional."

Mr. Greenwood continued to see Dr. Hurwitz until the DEA charged him with drug trafficking and seized all his medical records. "He was under constant surveillance," said Ms. Reynolds. "He had a very specific, intrusive relationship with the authorities that he had to abide by in order to practice medicine at all."

"William Hurwitz was working under supervision of the state medical board, with approval, and they still prosecuted him," confirmed Dr. Fishman. "He may be the first doctor who was practicing with the approval of a supervising body and still got prosecuted. He was accused of making millions, which is a massive distortion. It was in fact something like $2 million over a period of years, which is not a great deal of money for a medical practice."



ADOPTING A PROACTIVE RELATIONSHIP

Whereas many criticize the way in which the prosecution of pain physicians is being handled, some experts in the field of pain medicine prefer to adopt a proactive relationship with the regulatory agencies.

"I have had no problem with the medical board or the DEA and feel that we have worked very cordially with them," said Dr. Peppin. "As pain physicians, we need to communicate proactively with the regulatory agencies. We need to contact medical boards and the DEA, tell them what we are doing, how we run our practices, ask their advice, and continue to communicate with them over time."

Ms. Bolen notes that state medical boards, rather than the DEA, are responsible for scrutinizing the prescribing practices of physicians.

"While there may be a DEA presence in some of these cases, it's usually not the DEA that is initially involved," she said. "It's much more likely to be medical boards, state and local law enforcement, such as Medicaid fraud control units, and the investigation arms of healthcare benefit programs."

"I teach a lot of investigators that, from a pain management point of view, you don't base cases [of federal prosecution] on pill numbers, combinations of pills, types of drugs, or unusual combinations in and of themselves," said Ms. Bolen, who lectures across the country educating investigators and physicians about diversion.



SOLVING THE PROBLEM

Finding a balanced solution to this problem "requires understanding and proper training of insurance investigators, pharmacists, doctors, the DEA, state agencies and patient groups. The enemy is misunderstanding, and the solution is communication," Ms. Bolen suggested. She recommends that pain specialists draft guidelines for legitimate medical practice that all physicians can follow. "Most states have failed to do this," she said.

In addition, Ms. Bolen referred to the American Society of Interventional Pain Physicians' proposed national patient monitoring electronic database. She said that she thinks a national monitoring program will help combat prescription drug abuse, but that to date only 19 states have some form of a prescription monitoring program.

"A lot of [diversion] happens in rural states, where it is possible to obtain medicine from several different doctors, and [physicians] don't know about it because, in most cases, they have no electronic database to check up on potential doctor-shopping behaviors," she said.

Ms. Bolen is also excited about two educational events taking place later this year that will help accomplish the goal of educating law enforcement about legitimate medical practice. The National Health Care Anti-Fraud Association will sponsor regional conferences in March and July of 2004 at which doctors and pharmacists specializing in pain management will talk to law enforcement about medical practice and diversion. "It's usually the other way around," she said.

Dr. Peppin agrees. "There must be a middle ground where pain doctors and law enforcement can come together," he said.

--Michael Dreyfuss

Based on interviews with Siobhan Reynolds, Jennifer Bolen, JD, Scott M. Fishman, MD, and John F. Peppin, DO.

Siobhan Reynolds
Family Member of a Chronic Pain Patient
Founding Executive Director
PRN
www.PainReliefNetwork.org
"Standing up for patients in pain and the doctors who treat them"





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