Physician Excessive Prescribing of Opioids

Physician Excessive Prescribing of Opioids 1

The opioid crisis has affected every area of the country, including California. Long viewed as the optimal method of pain control, prescription opioids have come under scrutiny by the general public, and the media — as well as the federal and state government. Many doctors who prescribe opioids for their patients are now facing disciplinary action and even criminal charges because of the ongoing problem of opioid addiction. You just see excessive prescribing of opioids topics.

Both law enforcement and regulatory agencies have taken an aggressive approach to combat the opioid epidemic. A primary target of this crackdown is doctors who allegedly overprescribe pain medicine such as opioids. Any medical professional who is flagged for writing too many opioid prescriptions — or whose patient dies as a result of an overdose — may soon be the subject of a criminal investigation and/or disciplinary action.

These types of charges can destroy a physician’s career and reputation, and in some cases, may even lead to imprisonment. If you are under investigation for excessive prescribing, an experienced California healthcare license defense attorney can help.

The War Against Opioid Abuse

According to the United States Department of Health and Human Services (HHS), 10.3 million people misused prescription opioids in 2018. The agency estimates that more than 130 people die every day from opioid-related drug overdoses. The abuse of both prescription and illicit opioids has been deemed an epidemic.

In 2017, the federal government declared a public health emergency in response to the ever-increasing opioid use in the United States. It subsequently announced a 5 point plan for combating the opioid crisis. At the same time, the United States Department of Justice (DOJ) declared that it was creating an Opioid Fraud and Abuse Detention Unit, with a specific goal of criminally prosecuting doctors who prescribe high doses of opioids and pharmacies that divert opioids.

In California, the Department of Public Health is working in connection with the Medical Board of California (MBC), the Department of Justice, and local law enforcement through the Statewide Opioid Safety (SOS) Workgroup. One of the primary strategies of the SOS Workgroup is rein in the overprescription of opioids.

This is accomplished in part through the Controlled Substances Utilization Review and Evaluation System (CURES), which tracks all Schedule II, III and IV controlled substances dispensed in California. All health care providers who are authorized to prescribe, order, administer, or furnish a controlled substance are required to consult CURES before prescribing such medication (with limited exceptions).

The data collected through CURES is available to state, local, and federal agencies, including law enforcement and regulatory boards such as the MBC. Under California Health & Safety Code Section 1165(c)(2), this information can be used for criminal, civil, or disciplinary purposes. As a result, doctors who prescribe opioids to their patients may be targeted for criminal or disciplinary action based on the prescription information entered into CURES.

The CURES system is also used as part of the MBC’s “Death Certificate Project,” a joint initiative with the California Department of Public Health that analyzes the death of all individuals who died of a drug overdose or intoxication (including an opioid overdose). All providers who prescribed a controlled substance to such individuals within three years of their opioid-related death may then be investigated by the MBC — even if the prescription drugs that they ordered were not listed as a cause of death.

The Death Certificate Project is an incredibly aggressive program. Between 2016 and 2017, the Office of the Attorney General filed 314 accusations against physicians and surgeons (with an additional 89 investigations awaiting the filing of an accusation at the close of the fiscal year). According to MBC’s Executive Director, 150 of those accusations originated from the Death Certificate Project. In other words, nearly half of all accusations in 2016/2017 arose from investigations of overdose deaths.

Despite concerns about substance use, there are legitimate reasons for prescribing this type of medication, particularly for pain patients. Doctors now face an ethical dilemma, as they attempt to balance patient needs with the mandate to drastically curtail opioid prescriptions. 

Opioid Prescribing Guidelines

In 2014, the MBC released guidelines for prescribing controlled substances to control pain. These guidelines provide an overview of the process that a physician should undergo before prescribing opioids, including (1) conducting a patient evaluation and risk stratification; (2) consulting with or referring patients to a pain specialist (particularly for primary care doctors); (3) developing a treatment plan and objectives; (4) obtaining patient consent with regards to the use of opioids; and (5) requiring a patient to sign a pain management agreement in some cases. In addition, there are specific standards for the prescription of methadone to treat drug addiction.

The guidelines outline recommended treatment for different scenarios as follows:

  • Acute Pain: opioids should only be used for severe pain, and where other medications or therapies (such as Tylenol) will not likely provide adequate pain relief. Opioid dosages and prescription refills should be limited. Extended-release or long-acting opiates should not be prescribed.
  • Emergency Rooms: opioids should not be prescribed for acute low back pain or non-cancer chronic pain except when other therapies will be ineffective. Any painkillers given upon discharge should be limited in duration to less than a week.
  • End-Of-Life Pain: pain management should improve or maintain a patient’s overall quality of life as well as relieve their suffering. Opioids may not be appropriate where mental alertness is a priority. Physicians should consult with a specialist in palliative medicine if fear of respiratory depression leaves to under-prescribing of opioid medications.
  • Cancer Pain: opioid pain medications are appropriate for cancer patients with moderate to severe pain, although in some cases, other treatments may be more beneficial to the patient. Extended-release or long-acting opioids may be a better option for patients with cancer.
  • Older Adults: care should be taken when prescribing opioids to the elderly. Lower starting doses, a slower titration, and more frequent monitoring can help to avoid complications.

Later, in 2016, the Center for Disease Control released Opioid Guidelines for Primary Care Physicians. These guidelines reinforce the recommendations articulated in the MBC Prescribing Guidelines and outline factors to be considered when prescribing opioid medication.

The MBC and CDC Prescribing Guidelines are not a substitute for the independent judgment of a prescribing physician. However, a violation of the MBC guidelines could be used as evidence of excessive prescribing. For this reason, it is vital that doctors carefully document their patient care when prescribing opioids such as oxycodone, hydrocodone, oxycontin, or fentanyl.

Adherence to the prescribing guidelines can be demonstrated by records that show that a doctor examined and took a history of the patient, that there is a pain treatment plan and objectives in place, that the patient consented to the use of pain pills, and that the physician periodically reviewed the drug use. This documentation can also be used to prove that a doctor followed the standards of care for their community.

The Risks of Excessive Prescribing of Opioids

California Business and Professional (B&P) Code regulates the prescription of addictive drugs such as opioids. Under B&P Section 725, a physician who excessively prescribes furnishes, dispenses, or administers opioids in their medical practice may face criminal charges. They may also be the subject of a complaint to the MBC for unprofessional conduct.

As an initial matter, a doctor who engages in repeated acts of “clearly excessive” prescribing of drugs or treatment may be charged with a criminal offense under California law. Both the Department of Justice and the California Office of the Attorney General have taken a hard-line approach to doctors who are alleged to have overprescribed opioids. In 2019, California filed murder charges against a doctor whose patients died after he reportedly prescribed too many opioids to them.

In addition to criminal charges, a physician who is alleged to have excessively prescribed opioids could face discipline from the MBC. The Board will review the allegations against the standards of care within the community of licensees. As such, a complaint against a pain management doctor who is accused of excessive prescribing will be considered in light of the standards of care for pain management practitioners.

The potential consequences of violating B&P Section 725 are significant. Excessive prescribing of opioids is a misdemeanor offense, punishable by a fine of up to $600 and/or imprisonment for a term of between 60 and 180 days. The MBC may also take disciplinary action against a physician, with possible penalties including the suspension or revocation of a medical license.

Defending Against a Charge of Overprescribing Opioids

If you are the subject of an investigation into excessive prescribing of opioids, you will need a multifaceted strategy to defend against criminal and/or disciplinary action. A skilled California professional license defense attorney can formulate a defense to protect your license and your freedom.

Significantly, there are no standards in either the B&P Code or the MBC guidelines for what constitutes “excessive prescribing.”  Both prosecutors and the MBC base these charges on their subjective view of a physician’s prescribing practices. This can make defending against this type of complaint or criminal charge even more challenging.

An investigation into excessive prescribing focuses on whether the course of treatment fell within the standard of care for the community. Careful documentation of the need for opioid medication can help to demonstrate that the treatment was within the standard of care. At the Law Office of Nicole Irmer, we also consult with medical experts who may opine that based on the patient’s condition, prescription opioids were necessary and in line with what fellow practitioners would order.

Under B&P Section 725, there are two situations in which a physician cannot be disciplined and/or prosecuted for prescribing opioids:

  1. A doctor who has a medical basis for prescribing, furnishing, dispensing, or administering dangerous drugs or prescription controlled substances is not subject to disciplinary action or prosecution
  2. A physician or surgeon who treats intractable pain in accordance with B&P Section 2241.5 is not subject to disciplinary action.

Defending against a complaint or charge of excessive prescribing of opioids often involves demonstrating that there was a medical basis for the prescription(s), or that such medications were used to treat intractable pain. In addition, evidence that failing to prescribe opioids in a particular case would violate a doctor’s ethical duty to care for a patient can be used to defend against an excessive prescribing charge.

Each charge of alleged overprescribing is unique, and a specific defense will depend on the facts of the case.  Based on medical records and expert testimony, a seasoned attorney will work with you to present a defense that appropriate care was given if you are facing disciplinary action and/or a criminal charge for excessive prescribing.

Protect Your Medical License from False Overprescribing Charges

If you have been accused of excessive prescribing of opioids, you will need a medical license defense. A compassionate and experienced California physician license defense attorney can make the difference in your case. The Law Office of Nicole Irmer is dedicated to defending doctors who have been accused of overprescribing, representing physicians in both administrative and criminal contexts.

When your license is at risk, you need a law firm that can develop a comprehensive defense strategy against the allegations against you. The Law Office of Nicole Irmer has substantial experience in the fields of criminal and professional license defense and can advocate for you throughout every step of the process. To learn more or to schedule a consultation, please contact us online or by calling (619) 237-6130.