The prescribing of opioid analgesics is a "target-rich" environment for criminal prosecution, says Ben A. Rich, JD, PhD, professor in the Department of Anesthesiology and Pain Medicine at the School of Medicine, University of California — Davis.
"Interestingly, the prosecutors in these cases tend to argue that the physician was acting outside the bounds of medical practice, dealing drugs for profit in the guise of medical practice," says Rich. "This is true of the case now pending in southern California against Dr. Hsiu-Ying `Lisa’ Tseng." Tseng, a Rowland Heights, CA-based physician, is charged with second-degree murder in the deaths of three men and is accused of recklessly prescribing opioids to patients who had no medical need for them. The Drug Enforcement Administration says Tseng wrote more than 27,000 prescriptions over three years starting in January 2007.
Michael E. Clark, JD, LLM, special counsel at Duane Morris in Houston, TX, says prescription of controlled substances "has been, and remains, an area that will attract scrutiny by prosecutors." This scrutiny is particularly true if the pattern of behavior appears to be outside the scope of commonly accepted professional practice. "In many states, the legislatures have responded to concerns about pain management clinics by imposing special controls on them," says Clark.
Rich says that for this reason, physicians who treat patients with chronic pain have "a high level of concern."
"Nevertheless, there is a clear pattern to the physicians who have been successfully prosecuted." Here are commonly seen practices of physicians in these cases:
• maintaining very sparse or nonexistent medical records;
• routinely writing and refilling opioid prescriptions without physical examinations, follow-up visits, or assessments;
• failing to conduct any type of assessment of the risk the patient poses for addiction, abuse, or diversion of prescription medications;
• apparent indifference to whether the medication is controlling the pain and increasing the patient’s ability to function.
Discretionary decisions by a physician using his or her professional judgment should not yield criminal consequences, argues Mark J. Silberman, JD, a partner at Duane Morris in Chicago and formerly a state and federal prosecutor and former deputy chief counsel for the Illinois Department of Public Health. "But prosecutors are looking at [a physician’s discretionary decisions] in a multitude of ways," Silberman says. "[Investigations] can cover the entire spectrum."
For example, a physician who is allegedly improperly distributing controlled substances might face actions from the Drug Enforcement Agency (DEA) and the U.S. Attorney’s office. "In some cases, excess medication is looked at as improper billing, which can yield criminal consequences," adds Silberman.
