Monday, April 6, 2020

The Los Angeles Lawyer February 2013 edition, page 14, Becky Walker James and Kathryn Lohmeyer, reported overdoses from prescription pain medications may lead to liability for the doctors who prescribe them.  Overdose deaths may be from prescription drugs obtained from sources other than a single prescribing doctor. 

In cases involving overdose deaths, the public wants to hold someone accountable.  However, the science of pain management has evolved to recognize the legitimacy of the effective use of medications to treat pain.  Competing realities have led to whether doctors should be liable for prescribing drugs to pain patients.

Physicians can be convicted for the knowing or intentional distribution of a controlled substance when activities fall outside the general course of professional practice.  In enacting the Federal Controlled Substances Act (CSA), Congress recognized “[m]any of the drugs” regulated under the act “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.” 

The Ninth Circuit and the U.S. Supreme Court have been clear about leaving the regulation of medical practices to the states.  States regulate doctors and the practice of medicine.  The California Medical Board, for instance, says its mission is “to protect health care consumers through the proper licensing and regulation of physicians and surgeons…through the vigorous, objective enforcement of the Medical Practice Act.”  State medical boards regulate most aspects of the practice of medicine, including licensure and continuing education for doctors, maintenance of standards of professional conduct and medical practice, and disciplinary actions against doctors found to have engaged in unprofessional or dishonorable conduct.

At the same time, the federal government has increased its role in the protection of health.  The Drug Enforcement Agency (DEA) has increased federal enforcement efforts against doctors prescribing pain medications.  Critics characterize these federal enforcement efforts as intrusions into the doctor-patient relationship, usually made without established guidelines for patient care. Supporters view federal enforcement actions as a necessary response to public health concerns.

In the medical and scientific communities the treatment of pain is recognized as a legitimate medical use of opiate analgesics, including oxycodone.  In California, this is reflected in the Business and Professions Code in California: “[a] physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain.”  Even when a doctor suspects a patient is addicted, prescribing medication to treat a patient’s pain does not constitute an automatic violation of medical ethics or professional guidelines. Accepted medical practices include the use of opioid analgesics for the treatment of pain even in addicts.

Doctors who prescribe pain medication may be subject to state court jurisdiction for violations of a state’s health and safety code or medical practice act.  Under federal law, doctors are usually tried under the CSA, which may charge a medical professional for prescribing pain medication without a legitimate medical purpose.

Read the Article Here