Criminalization of Pain Management
Evaluating the Risks of Unwarranted Prosecution – The Criminalization of Pain Management (PDF); Frank B. Fisher, M.D.; Journal of American Physicians and Surgeons; 9(4): 114-117, Winter 2004.
Permalink: http://doctordeluca.com/wordpress/archive/criminalization-pain/
See also:
How Expert Testimony Distorts the Standard of Care (PDF)
Frank B. Fisher, Practical Pain Management, 5(6): 33-41, 2005
Pain Killer
Frank B. Fisher, Harvard Medicial Alumni Bulletin, Winter 2006
Unraveling the Paradigm of ‘Balance’
Frank B. Fisher responds to a Dr. Fishman LTE to the WSJ, 2005
Excerpted below are the Abstract, Introduction, Summary, and Conclusion.
Full text PDF
ABSTRACT
Despite reassurances to the contrary from regulatory officials, many physicians are concerned that prescribing opioid analgesics in chronic pain treatment is accompanied by an unacceptable risk of unwarranted prosecution. The validity of this fear is evaluated by examining the standards through which physicians are targeted and prosecuted. Prohibition law is identified as an error in social policy that distorts the standards employed in the regulation of medical practice.
INTRODUCTION
Undertreatment of chronic pain is a continuing public health disaster.1 2 It has resisted repeated attempts at resolution, including enactment of laws regarding intractable pain, patients bills of rights, and promulgation of medical board guidelines. These attempts have failed, at least in part because of a perception, common among physicians, that unacceptable risks of unwarranted prosecution accompany the prescription of opioid analgesics when these substances are employed in treatment of chronic pain.3 A debate rages over the accuracy of physicians perceptions of risk. Law enforcement officials claim that criminal prosecutions weed out only the occasional bad apples, those found in every profession.4 These officials assert that lack of education in pain management is the primary factor accounting for the epidemic of undertreated chronic pain.5 Voices within both organized and academic medicine reject this perspective. They attribute the pain crisis instead to misplaced regulatory zeal.6 The Association of American Physicians and Surgeons goes so far as to characterize the regulatory environment surrounding chronic pain treatment as a witch-hunt. This organization consequently advises physicians to refrain from prescribing opioids to treat chronic pain.7
As long as a perception of unacceptable risk persists, valid or not, undertreatment of chronic pain will continue unabated. Therefore it is essential to determine whether or not there is any basis in reality for physicians reluctance to prescribe opioid analgesics for chronic pain.
SUMMARY
Opioid prohibition is a social experiment, accompanied by the unintended but apparently inevitable consequence of transferring responsibility for the regulation of pain management from the medical profession to law enforcement.
Physicians are mistakenly targeted for criminal prosecution through use of red flags, which are non-medical standards developed by law enforcement for the purpose of determining the legality of medical practice.
Risks of unwarranted prosecution are made greater by routine courtroom use of unproven allegations of substandard care as circumstantial evidence of criminal intent.
The widespread practice of undertreating chronic pain increasingly puts physicians at risk for adverse civil and administrative consequences.
CONCLUSION
When law enforcement is assigned to regulate medically useful substances, threat of criminal prosecution is part of the package. This results in a regulatory environment in which the well intentioned conduct of conscientious physicians may later be second-guessed by law enforcement as criminal. Safe-harbor provisions don’t remove this threat; instead they offer physicians a promise of safety that hasn’t been delivered and that, history suggests, probably never will be. Consequently, physicians remain well advised to refrain from prescribing opioid analgesics in the treatment of chronic pain, until such a time as unacceptable risks are eliminated.
Footnotes
-
Chronic Pain in America: Roadblocks to Relief, a study conducted by Roper Starch Worldwide for American Academy of Pain Medicine, American Pain Society and Janssen Pharmaceutica, 1999. ↩
-
Mixed Message on Prescription Drug Abuse. Vastag, B., JAMA 285(17): 2183-2184, 2001-05-02. ↩
-
Improving State Medical Board Pain Policies: Influence of a Model. Gilson AM, Joranson DE, Maurer MA., J. Law Medicine & Ethics 31(1): 119-129, 2003. ↩
-
Myth of the “Chilling Effect”. Drug Enforcement Administration, U.S. Department of Justice. Press release, 2003-10-30. ↩
-
Framing the Debate about Ethical Treatment of Pain. Lee R. Presented at: Univ. Calif. Davis Medical Center, Davis, Calif. March 14, 2001. ↩
-
Framing the Debate about Ethical Treatment of Pain. Fishman, S. Presented at: Univ. Calif. Davis Medical Center, Davis, Calif. March 14, 2001. ↩
-
Advice to Doctors Re: Pain Management. Association of American Physicians and Surgeons. Circa 2003. “What the Government has Taught Doctors: 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’re thinking about getting into pain management using opioids as appropriate: DON’T. Forget what you learned in medical school — drug agents now set medical standards…” ↩
1 Comment »
RSS feed for comments on this post. TrackBack URI
Leave a comment
If you want to leave a feedback to this post or to some other user´s comment, simply fill out the form below.
Posts about Social Media as of December 19, 2008 | The Lessnau Lounge
[...] Criminalization of Pain Management – doctordeluca.com 12/19/2008 Evaluating the Risks of Unwarranted Prosecution – The Criminalization [...]