Tucson Case Illustrates Point
Prompted by an ever-mounting list of physicians charged with over-prescribing
opiate painkillers and the indictment of a Tucson physician in March,
a Tucson-based medical association representing some 5,000 doctors
has warned its colleagues not to prescribe opiates for pain relief
and to take elaborate -- and expensive -- precautions if they do.
On July 1, the Association of American Physicians and Surgeons (http://www.aapsonline.org),
a free market-oriented group, sent out a memorandum titled "Advice
to Doctors Re: Pain Management (or What the Government Has Taught Doctors)."
"If you're thinking about getting into pain management using opioids,
DON'T," said the AAPS memo. "Forget what you learned in medical
school -- drug agents now set medical standards. Until wrongs are
righted and procedural changes are made, physicians have little
choice other than to be unusually suspicious of new patients, to
require unnecessary and expensive tests, to waste time on excessive
documentation, or to turn away suffering patients, even if they
think the patients may not find anyone else to treat them.
If you are already prescribing opioids," the memo continued:
Beware of new patients. If you accept a new patient, do background
checks, demand old records before writing the first Rx, obtain urine
screens and get them to sign opioid contracts. It is safer to turn
them down, explain why, and give them an action item (call their congressman, for example).
Do thorough physicals, even if unnecessary and not helpful.
Make voluminous notes.
Exercise zero tolerance for patient slip-ups (such as losing a prescription).
Beware of any patients with a history of drug abuse. Even if now
clean and in genuine pain, they might be induced by government zealots
to testify against you to save themselves from imprisonment on drug charges.
Refer patients early and often to addictionologists, orthopedists,
pain specialists, psychologists, regardless of expense or your opinion of helpfulness.
Keep a low profile and beware of saying anything that might offend
an official of law enforcement, the licensure board, or the state medical society.
Never forget that you could be held to a standard of strict liability
for any patient misbehavior or for any bad outcomes such as death,
no matter the cause and without regard to the culpability of the
patient or his associates. Remember, your medical decisions will
be reviewed by drug agents who will decide if your actions were medically reasonable.
Consider phasing out this part of your practice, giving patients
plenty of time to find another doctor.
"We don't really want to give doctors this advice," said Dr. Jane
Orient, executive director of the AAPS, "but something has got to
be done. A lot of doctors are afraid to prescribe opiates even for
desperately ill patients -- it's not worth spending the rest of
your life in prison for prescribing pain medications," she told DRCNet.
That's the prospect confronting Tucson pain management specialist
Dr. Jeri Hassman (http://www.drhassman.com), who faces a 66-count
indictment charging her with prescribing opioid painkillers to six
patients without a legitimate medical reason. Those drugs included
morphine, methadone, Vicodin and Oxycontin. She is also charged
with defrauding TRICARE, a managed health-care group serving US
military retirees and their families, and is facing DEA administrative
hearings and a state medical board investigation, according to her
lawyer, former US Attorney for Arizona Bates Butler. According to
the DEA and federal prosecutors, Dr. Hassman's patients included
a number of suspected "doctor shoppers," or people who go to multiple
doctors seeking to obtain large amounts of controlled substances.
"Why in the sam hell didn't they go to her if they thought some
of her patients were doctor-shopping?" fumed Butler. "They didn't
inform her of a potential problem, they just sent in an undercover
agent claiming he was in pain."
There is a common practice across the country that seems designed
more to cripple doctors than to achieve justice, Butler said. "What
happens is the DEA suspends the doctor's license to prescribe, then
the doctor appeals and the case is set for an administrative hearing.
Now the doctor has to reveal to the DEA the specific defense to
the charges, which effectively wipes out your Fifth Amendment privilege,"
he explained. "After the DEA gets a look at your defense, but before
the actual administrative hearing, here comes a criminal indictment.
Now, the doctor's lawyer is going to tell him to put the administrative
appeal on hold because there are more serious matters to deal with.
So what we have is the DEA forcing doctors to spend time and money
to defend themselves at these administrative hearings, while the
DEA uses that process to build a criminal indictment. And, of course,
there are also state medical board hearings, so it's a triple whammy,
and it's an abuse of civil proce
edings by the DEA."
At a press conference June 26 in Tucson, Dr. Hassman told reporters
she had spent $100,000 on her defense so far and feared the bill
could reach half a million dollars. While Dr. Hassman's practice
remains open, her employees have had to take pay cuts, she said.
And while Dr. Hassman conceded that there are people who "doctor
shop" to seek drugs, she said the DEA should work with doctors to
identify them instead of targeting doctors. And, she said, DEA efforts
to thwart abuses should not get in the way of legitimate medical
needs. "You cannot ignore there are millions of people who suffer
severe and chronic pain," she said.
Dr. Hassman feels alone, Butler said, but her case is not unique.
According to the AAPS, there have been at least 32 similar prosecutions
of pain management specialists in recent years. Nor is Dr. Hassman
alone professionally. At least four Tucson-area pain specialists
are prepared to testify that Hassman was engaged in legitimate medical
practices, including local pain treatment expert Dr. Jennifer Schneider
and the immediate past president of the Arizona Medical Association, Dr. Richard Dale.
And while the Arizona Medical Association was reluctant to comment
directly on Dr. Hassman's case, the group's executive director,
Chic Older, told DRCNet the issue of legitimate pain treatment was
becoming increasingly important. "We are watching to see what will
happen," Older said. "Our medical association is on record saying
we feel physicians ought to be able to act in the best interests
of their patients. We don't think physicians should have to worry
about losing their license for treating a dying patient in intractable
pain. Sometimes there are cases whose outcome really sets a marker,
and this could be one of them," he said.
Regardless of the outcome in this particular case, said Older, prosecutions
like this one can deter physicians from properly treating pain.
"This is part of the criminalization of medicine," he said, "and
that has a chilling, chilling effect on physicians' willingness
to prescribe necessary medications. The whole notion of the enforcement
and judicial arms of government overseeing physicians and looking
for criminal intent is becoming a very significant issue in this country," Older said.
Also attending Dr. Hassman's press conference were about a dozen
of her former patients, who passionately defended her. One of them,
Don Hayden, 48, told reporters he had been bedridden with chronic
pain for years before finding Dr. Hassman. "She prescribed the proper
pain medication to make me a functioning member of this society,"
Hayden said. Other patients said they were having trouble getting
the medications they need since Dr. Hassman's certificate to prescribe was suspended by the DEA.
"The DEA says the justification for these arrests of doctors is
the public health," Bates said, "but Dr. Hassman had over 200 patients
who were receiving controlled substances for pain relief. What about
the public health when 200 patients can't go to their doctor? What
makes this even more frustrating is that of those patients of Dr.
Hassman who have managed to find another doctor, 97% of those we
can find are now on the same or higher doses of controlled substances."
"This is a serious problem," said AAPS' Dr. Orient. "We have physicians
being prosecuted like drug kingpins. We need real legal reforms
so that a doctor who gets taken in by an undercover agent or a talented
actor does not face life in prison. We need a nationwide educational
program about the difficulty patients are already having getting
pain medications. It's only going to get worse," she said. "Doctors
need to be seen as allies in the war against drug diversion, not
the enemy. Doctors are not cops, they don't have lie detectors.
If law enforcement was seriously interested in stopping drug diversion,
it would work with doctors, not target them."
"They've already lost the war on drugs," said Bates, who spent a
career prosecuting drug cases as US Attorney. "Now they want to
turn it into a war on doctors. There's a certain amount of ego gratification
in this for prosecutors," he said. "It's much more exciting to take
down a doctor, a lawyer, or some other professional than just to
prosecute another kid caught coming across the border with a backpack full of dope."