There are separate issues at play here. Civil litigation is still uncommon with respect to C-IIs although multiple states have now made it acceptable for third parties to sue the prescribing physician if they are injured by the second party, their patient if they are under the influence of C-II. Wrongful death suits have become more common. It is only a matter of time until we see lawyers advertising on TV about evil doctors prescribing opioids that led to injury (automobile accidents, falls, etc.).
But the more important issue is not civil litigation or fear of litigation- it is imprisonment and loss of license via years of criminal prosecution by attorney generals of the states. This occurs to both careful physicians and MD drug dealers alike. With attorney generals emboldened by their successes in court and before the state boards, the number of these prosecutions (including felony prosecutions for manslaughter and homicide) are accelerating. The notoriety of these cases has given attorney generals in other states and county prosecutors ammunition with which to stop the scourge of the drug epidemic, including heroin, since many of these ODs were caused by initial legitimate opioid prescriptions. Attorney generals seeking higher office use these drug prosecutions as a launchpad for their political careers, therefore the more the better. According to news reports in Indiana, 146 doctors were prosecuted by the attorney general in one year for opioid related offenses- a massive increase over past prosecutions. The prosecutions involve the state medical board, the attorney general, the state police, county coroner, sometimes city police, the DEA, and the state board of pharmacy all working in concert to stop these "evil doctors" from prescribing if there have been drug overdoses- even if the overdoses occurred up to 10 years before, and even if the overdose was not known by the physician. The charges are triple charges at the state medical board, state criminal charges, and federal criminal charges. Because these charges result in three sequential trials, the doctor essentially has no way to win. The medical board actions may extend over a 1-2 year period (delays by the attorney general) and no statutes concerning a timely trial exist. State criminal trials for Medicaid fraud (the doctor should not have been prescribing so much medicine, therefore is Medicaid fraud) or homicide may take another 2-3 years. Then if the physician prevails, the DEA charges await and a federal trial occurs, requiring another 2-3 years.
During this time, the physician expends massive outlays in attorney fees, have closed their practice due to both having their license to practice suspended during the trial period and the press coverage swallows everything the attorney general puts forth in accusations about the doctor. During the initial press conferences by the attorney general (after the physician's offices are raided, with the staff made to sit in a tight circle in the middle of the room, cannot make any cell calls or touch anything, and every computer is confiscated along with all cash, and every drawer and file is searched looking for pre-signed scripts or any opioids) in which they charge the physician with a laundry list of charges that include overprescribing, homicide, Medicare fraud, Medicaid fraud, insurance fraud, and several others, they ask the public if they know of any other dirt on the doctor, giving a 1-800 number to call to pile on. The "expert physician", a paid ***** of the state in some cases, that will always make the case the physician was overprescribing (since the paid expert does not prescribe opioids) or should not have prescribed because the patient was depressed or anxious or had an inadequate workup or had a single failed drug screen previously 5 years ago, etc. etc.. And this is at the medical board level. Even if the doctor prevails, he gets to do it all over again at the criminal state level, then if he prevails, once again at the federal level. The doctors career and life are destroyed whether he wins or not, and if there is homicide proven, he goes to prison. But it is not over yet.....the publicity the occurs from the trial and news reports launches a series of civil suits, some medical malpractice, and some outside the medical malpractice coverage.
This occurs over and over again across the US. Your compassion for patients is not a defense. Your desire to help mankind and reduce suffering has no bearing with respect to the juggernaut of the criminal prosecution system that descends upon you. Simply because you were not criminally prosecuted for 2 years after an overdose death does not protect you with a statute of limitations since you may be prosecuted for any deaths that occurred no matter how long ago. The state statute of limitations for wrongful death civil prosecutions/malpractice does not begin with death but begins with the discovery by the families of the deceased that the physician caused the death. The Kafka-like kangaroo courts with endless prosecutions on multiple levels is a nightmare for every doctor that has gone through this, and the uncertainty of any future in medicine lingers for years. In many cases, the state moves very slowly to permanent license revocation because once they have temporarily suspended the license the physician is unable to practice medicine. If the physician was foolish enough to surrender the DEA registration (commonly asked of the physician by DEA agents who tell physicians it would go easier on them if they did), the doctor is effectively signing their own career death warrant. The DEA never reinstates the registration until a physician prevails before the state trials and federal trials, and then only after suing the government to return the DEA registration.
There is simply no excuse for doctors to face triple trials for the same alleged offenses and no excuse for the state's fabrication of unsubstantiated charges. In some cases that I have been involved as a consultant, the state may present 6 deaths during trial that they allege was due to opioid overdose. When the autopsy reports are examined, a different conclusion is frequently reached, and the state uses published "toxicity levels" of opioids that are valid for acute opioid administration but not chronic opioid administration. In other words, the state fabricates charges that are non-sensical in many cases, but the expert witness, being paid to take the side of the state in one prosecution after the next, has as their charge to sway the jury no matter the science is lacking. There is no downside to the state fabricating charges. There is no downside for the expert witness, who may spew utter rubbish on the witness stand that does not stand up to scrutiny.
In the US today, doctors are being held responsible for deaths, even when the deaths may not be due to opioids or combinations of drugs prescribed by the doctor- it matters not, since the attorney generals have elected to abuse their power to put a targeted doctor out of business. A systemic method of prosecution has emerged that destroys good doctors and bad alike, without discrimination. Indeed the pendulum has swung extremely far to the conservative side for what is acceptable opioid prescribing, and now any bad outcome, present or past, is being used against physicians to destroy their careers and their lives. The attorney generals believe the physicians are 100% responsible for not only excess prescribing, but also for how patients use the medications inappropriately, and for the heroin epidemic. Their solution is to prosecute the same physician over and over until the state makes its case to a sympathetic jury or body (state medical board). Doctors with more than one patient death that the coroners determine died due to opioids and the high rollers were initially being targeted. However the scope of targeted physicians is being widening with physicians deemed to be seeing too many patients, prescribing opioids to the majority of their patients, operating during unusual hours or prescribing unsafe drug combinations being targeted. As the number of physicians prescribing opioids declines, patients are left with fewer choices for physicians which ends up concentrating the number of patients being seen by the physician, making the physician a target.
This is very very real.....it can happen to any physician prescribing opioids, and there are no safe harbors provided by the state or federal government. The only safe way is to just stop prescribing all C-II opioids. If you can't do that, then certainly reduce all your patients to 90 MED or lower, take all patients off methadone, and stop prescribing C-IIs for anyone taking benzodiazepines or who are known to consume alcohol. For patients with COPD or sleep apnea, 90 mg MED may still land you in court if the patient dies, even if it is from something unrelated- so for those patients I suggest 30mg MED max.
Algos:
I appreciate all of the thought, and candor, of your last post.But there is also a lot of bitterness that is palpable.
I think there is a middle ground that can be navigated.
I current work in a system that services mostly two counties - Marion and Polk - in Oregon with a population
of about 300 - 350K. I just got word from my PDMP that about 1% of the patients in the two counties (3300)
are on > 120MED and .5% > 240MED (1800). My job is - in part - to help reduce the harms of those regimens
and to stop them from being perpetuated in the opioid naive.
<120MED Cohort
I've gone out of my way to get the word out about the CDC guidelines to my local medical community, medical board, the DOJ, and the FBI.
We also need support from organizations and their leadership in letting the public know and they need get ready to support, rather than
vilify the messengers - you and me and others in our situations - in the process. Change doesn't need to occur over night for most of these folks
but it will need to occur at some agreed upon tempo based on our individualized risk assessments. Importantly, some of the harm reduction must
fall back into the hands of the prescribers who accompanied these patients on this journey so that they learn how difficult the conversations are,
and thus when they are forced to have them themselves - rather than punting to us - they learn the value of not repeating their mistakes
in the future. The entire medical culture around opioids need to change. Organizational leadership and risk management needs to have
skin in the game and stop ducking this issue.
>240 - 1000 MED Cohort
Some of these folks are never going to be able to be on a safe dose or taper. This group contains the 'lost generation'. It's fair to lead with
a taper but, from experience, it's going to be very, very painful for everyone involved including the patient, their family, us, our staff, etc.
In my experience buprenorphine can reduce harms here for some of the 240 - 1000MED folks. But it is hard work and a heavy lift. Most of
these patients are TERRIFIED of withdrawal symptoms and thus utterly pre-contemplative about any change. If we are honest, most all of these
folks meet DSM-V OUD by virtue of tolerance and withdrawal. But, as that in and of itself is stigmatizing diagnosis there is resistance to it. The mere suggestion of it often leads to ad hominem attacks on-line, or to administration, about the character of the messenger:
he/she was rude, called me an addict, was threatening, was brusque, was angry, didn't read my chart, didn't ask me about My pain, was cavalier, judged me before he even saw me, lacked compassion, told me he was going to stop my opioids,called my compassionate PCP a dolt for doing this, was doctrinaire in his insistence to adherance to the stupid CDC guidelines, said my 7 spine surgeries and two spinal cord stimulators were unnecessary, doesn't understand that MY pain is different, unique, not like those other druggies. I have come to terms with this vilification by way of accepting it as consequence of their addiction and denial.
>1000 MED Cohort
MTD or oxycodone for years at these levels makes it nigh on impossible to implement a taper or conversion to buprenorphine. And you are right, there
are no safe harbors or good sam laws that protect any one prescribing to these patients. What to do with a 50y/o FBSS patient on MTD 200mg x 20yrs?
We need Good Samaritan/Safe Harbor legislation in every state for the experts that have to maintain these people where they are. Yes, prescribe naloxone,
yes offer a taper, yes get rid of the benzo's, Soma, ETOH, yes do the usual due diligence with UDS, and special material risk notifications that acknowledge
the added risk - > 9 fold risk of OD and > 125 fold risk of addiction - Q6mo, but someone will very likely need to continue the medication lest they go to
illicit heroin or fentanyl.
Lastly, the addiction psychiatry perspective on COT needs a larger public forum. I have learned more from them than any of my pain mentors. Many
very smart addiction psychiatrists consider high dose COT in the working-aged as office based MAT by another name. Importantly, they - including Dr. Lempke & Dr. Kolodny - do not lack for compassion and do not advocate for cutting these patients off. Addiction psychiatrists on the whole are folks who are cut of a different cloth. You don't go into that specialty if you are an individual who lacks compassion
They advocate for honestly recognizing what the medical community and Pharma did here was to create an epidemic of iatrogenic addiction, but out of humanity and mercy for the patients affected, continuing the dangerous therapy when it can't be walked back. We need to recognize they are right and stop conflating COT with mercy or compassionate care. That argument - Lynn Webster's - is trite.
Some smart folks in Seattle have been thinking about this problem for a long time. Not surprisingly the best, most comprehensive solution I have seen comes from them. I think this program needs widespread adoption:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3286629/
The results of this trial will be released in April.
It will be an important step forward.
