Don’t Be The Next Oxy-Moron: Protect Yourself Against Painkiller-Related Coroner and Criminal Investigations
It doesn’t take a doctor to figure out that if there is any suspicion that prescription pills contributed to Houston’s death, her physician(s) will be at risk of Medical Board and DEA administrative action, and possibly even criminal prosecution on some novel theory of homicide. Even if you have never treated anyone famous, it is today’s reality that honest, hardworking physicians are feeling the heat of bad publicity, shoddy and biased investigation, and unwarranted accusation in the wake of the conviction of Michael Jackson’s doctor for manslaughter, the large numbers of prescriptions written for narcotic painkillers nationwide, and the high-profile overdoses regularly making news.
To be sure, no one will or should condone malpractice, or gross misconduct, and this article doesn’t purport to do so or to assume that any responsible physician would. But, the words being used with increasing frequency – “overprescription; outside the bounds of accepted practice” and the like – are precisely the kind of vague, subjective phrases susceptible of many different meanings, and which become dangerous weapons in the hands of uninformed and eager prosecutors and police. This should be a clarion call to physicians to protect themselves and their practices, now. This article discusses the increased scrutiny doctors are facing in situations involving prescription painkillers, and how you can help ensure your business and reputation – and your medical license – are not jeopardized by ambitious bureaucrats who think they know medicine and who see you as the chum to their great white shark.
Stepped-Up Scrutiny Is the New Normal, and It Is Here to Stay
Across the country, federal authorities such as the DEA and United States Attorney’s Offices, and state and local authorities such as the Medical Board and county District Attorney’s Offices, are stepping up inquiries and enforcement against physicians because authorities are convinced there is an epidemic of prescription pill addictions, that many or most pain clinics are bogus, and that too many patients are engaged in “doctor shopping” and “drug seeking behavior.” The people who work in these government agencies believe they are duty-bound to go after any suspected wrongdoers.
In some cases, they are of course correct. Give them credit for recognizing that some pain clinics are just fronts for doling out prescription painkillers like candy and in a medical irresponsible way; kudos to the cops for running undercover street buys of black market Oxycontin as well as the usual crack cocaine and meth busts we hear about; and congratulations to authorities on securing justified convictions or license revocations against those few doctors whose practices are in fact a stain on the profession.
But as is the case with every new law enforcement policy priority, authorities pursue the “low hanging fruit” first, and then they start to run out of easy targets. So, in a move that is hazardous to the health of anyone in the target profession, authorities broaden their view of what a bad apple might look like, and set their sights on an ever-expanding pool of potential suspects. Sooner, not later, they are playing fast and loose, watering down their standards and potentially compromising their judgment, all the while never letting up in the exercise of their awesome power to subpoena, search, initiate administrative proceedings, arrest, prosecute, and punish. A once-reputable doc is left without a practice, his or her family and livelihood and future in ruins. “Oh well,” says the prosecutor who lost the trial but still has a job, “all in a day’s work.”
How you can steer clear of these dangerous waters? It might not be as obvious as you think, so the best analytical approach is to first examine cases involving the “low hanging fruit” I mentioned above, the no-brainers about what you shouldn’t ever do. Then, we’ll get to the more vague and murky, and thus more dangerous, potential allegations and charges even the most well-meaning and diligent doctor could face if he or she is not careful.
“I Had Bet You $20 Back in Med School That the Guy Would Be Busted One Day – Pay Up”
In a 2011 summary of doctor-takedowns, the DEA cites the following examples, among many others:
- Biloxi – a doctor who sometimes performed no examination at all but still wrote scrips for Promethazine with Codeine went to prison for eight years.
- Los Angeles – probation and restitution for a doctor who after a perfunctory exam had his non-physician receptionist (his wife) handle patient prescription refills every month.
- Boston – guilty plea and prison for a doctor who sold Oxy scrips to drug-seeking individuals and pocketed the cash.
- Los Angeles – three years prison for a doctor who didn’t examine people for whom she wrote Oxy scrips, and to whom she sold the pills for $25 apiece.
- Texas – two years prison for a doctor who gave a pharmacist an Rx for Dihydrocodeinone, but fabricated the patient’s name.
“This wouldn’t happen to me.” Of course not. No one is suggesting that any responsible and ethical doctor would do any of those things. But read on, for the DEA, as I will show you, has not confined its enforcement activities to obvious wrongdoers. Let’s look at where the danger arises – where the Government, backed by its endless supply of taxpayer dollars, proposes to substitute its lack of medical training and judgment, for your years of medical training and judgment.
“Subjective Interpretation” Does Not Mean “Subpoena” or “Search Warrant” – or Does It?
In the same document I just cited, the document that listed what I’ve called the “no brainer” offenses, the DEA writes of additional victories over doctors it perceived as worthy of mention in its nationally circulated agency publication. Do the following examples look like “low hanging fruit” to you? Or, will you agree with me that if your local federal narc happened to be having a bad day, you could be next?
- Los Angeles – probation and restitution for a doctor for prescribing narcotics “without a legitimate medical purpose.”
- Rochester, Minnesota – federal prison for a doctor who prescribed Percodan without appropriate inquiry as to whether the patient had a legitimate medical need, when the patient’s file contained a note from a hospital that the patient was “obtaining too many narcotics.”
- Republic, Missouri – five years probation and 1,000 hours of community service for a doctor who “obstructed a criminal investigation of a healthcare offense.”
- New Castle, Pennsylvania – seven to fifteen years in prison for, in one instance, prescribing controlled substances “that were not in accordance with treatment principles accepted by a responsible segment of the medical profession.”
Is the picture I’m trying to paint coming into better focus, maybe like the difference between a 1977 x-ray and a 2011 MRI? What does “without a legitimate medical purpose” mean, exactly, in these contexts? How about “obtaining too many narcotics” – in whose opinion? The cop who raided your office? The prosecutor whose proposed expert witness is a career civil servant with no experience treating patients or practicing medicine?
What about “obstructing a criminal investigation of a healthcare offense” – would you be charged with that if you tried to stop police from confiscating your files because of your concern about physician-patient confidentiality?
And my favorite – “not in accordance with treatment principles.” Are we to accept that the judgment of a successful doctor with a previously unblemished reputation will now be questioned and ruled upon by insurance adjusters, battles of the experts, judges with training in law but not medicine, prosecutors with training in law but not judging, and juries with no training any of these fields? It is scary to contemplate, but look no further than the examples I have cited for evidence that it is a real concern, and one that every good doctor must treat with the utmost seriousness.
I am not saying your phone is being tapped, or your patients are informing on you, or the feds have hooked up a GPS device on your car and suspect you’re in cahoots with a Mexican drug cartel. It is, however, clear that in a time of increased, broad scrutiny of medical practice in the area of prescription painkillers, where coroner inquiries and law enforcement activity are only likely to keep growing, the smart move is to proactively protect your practice and yourself. Let’s now discuss how you can do that.
Steps You Can Take to Protect What You’ve Built
- Incorporate “the New Normal” Into Your Charting
Ensure that anything you do is objectively, or as close to objective as you can get, for a legitimate medical purpose. Document everything, and consider having your patient fill out a standard form setting forth their prescription history, down to the dose and date and pharmacy and prescriber of their most recent bottle. Consider advising the patient that any misrepresentations they make, or information they willfully fail to disclose, may result in termination of treatment. A nicer way to phrase that is to tell them, on a form for their signature, that by signing the form they are agreeing that the information they are providing is complete, up to date, truthful and accurate. Interview them about anything they write that leaves you feeling uncomfortable or uncertain as to their veracity, and document anything additional they tell you. None of this means you can’t treat them if in your medical judgment it is appropriate and ethical; you are simply documenting the chart carefully so that if for some reason it is ever reviewed by an outside source, you will show yourself to have been diligent, thorough and alert from the outset.
- If You Learn You Are Under Investigation by Any Agency, Don’t Go It Alone
I am a criminal defense lawyer. Do you have any idea how frustrating it is to learn my clients have talked with police about their case before the client hires me? It happens all the time; you’d be amazed at how little effect the “reading of his rights” makes someone actually remember that they have “a right to remain silent,” and that maybe, just maybe, it would be a good idea to exercise that right.
The same goes for doctors: Do not assume that the brain that got you into and through medical school can go toe-to-toe with a wily investigator, especially one who is in all likelihood “just smart enough (about medicine) to be dangerous.” When you are under investigation, the investigators are not your allies, they do not have your best interests at heart, they will not interpret your words they way you want them to, they cannot be trusted to write down everything important that you tell them, and they will not accept your view of a situation if it diverges at all from their own.
- In other words, “lawyer up” immediately
A coroner’s investigation is medical, not criminal in nature, or so the coroner will tell you. But like a cold that can turn into a major sinus infection, things can quickly morph. Investigations are organic, dynamic, fluid, evolving. Do you think Whitney Houston’s doctors don’t have lawyers in contact with the coroner’s office, even though the coroner has said it’s just a medical investigation? The doctors would be foolish to be proceeding without counsel, even if – especially if – at this point the investigation is not labeled criminal. Do not make the mistake of trusting the people who have the power to ruin you, but who are for the moment smiling and declaring no present intention to turn on you like a viper. If they find something to change their minds, and you’ve already told them all sorts of helpful information, you will have helped dig your own hole. Let a lawyer protect you from the outset, so you can fully cooperate through counsel, and have your interests tended to by someone on your side.
If you find yourself in the midst of a real crisis, don’t panic! Easy to say, harder to do. Think back to your surgical residency, if you did one. Things can go wrong in the middle of an operation. If you should now find yourself in the sights of a governmental agency investigating your practice for any reason, don’t be the young doc who freaks out when the patient on the operating table codes. Stay calm, stay focused, get help right away, and don’t say anything to people who are authorized to hurt you if they think the justification is there. If you arm yourself with the right tools, you and your lawyer can fight back, help you weather storm and emerge unscathed, vanquish your adversaries, and get you back to your life.
Steve Meister is a criminal defense attorney and former prosecutor. He is principal of the Meister Law Offices, a full service criminal defense firm, and his clients include physicians prosecuted in state and federal court for prescription and other drug-related offenses.