Prescribing the Right Amount of Pain Medications

Pain is the most common cause of long-term disability, and it is the leading reason patients seek medical attention. Unfortunately, there is also a growing population of patients who, while they may be suffering from chronic pain, are seeking pain medication either to feed their addictions or to re-sell on the street. Thus, physicians seeking to manage their patients' pain with narcotics must be mindful of both the potential liability involved and the potential for scrutiny by their medical boards.

Until recent years, physicians were able to substantially reduce the likelihood of liability or licensure issues by prescribing narcotics at low doses, thereby providing less opportunity for abuse. However, more and more often, medical boards are punishing physicians who under-prescribe medications because they have failed to effectively manage the patient's pain. Physicians are now faced with a tightrope between over-prescription and under-prescription, both of which may result in licensure penalties and lawsuits.

In 2003, the Journal of Law, Medicine and Ethics published the results of a national survey of medical boards regarding how they perceived and addressed pain management complaints. Diane E. Hoffman and Anita J. Tarzian, Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. MED. & ETHICS 21 (2003). The survey, approved by a University of Maryland institutional review board, was directed to the state board medical director, or individuals with comparable titles, in each of the 50 states and the District of Columbia. Thirty-eight boards responded through the state board medical director, chief investigator or prosecutor, or those in comparable positions.

The findings of that study, which frames the problem physicians face with the prescription of narcotics and other chronic pain medications, provides some useful guidelines to physicians for avoiding legal issues. Likewise, the study's list of measures physicians can take to avoid liability can serve as a checklist defense attorneys can reference when defending medical malpractice or Medical Board complaints based upon a physician's pain-medication prescribing habits. It can also help attorneys to determine the strengths or weaknesses of any given case.

Over Their Heads

Pain, which is traditionally divided by the medical community into the categories of acute and chronic, is the leading reason patients seek medical attention. Shannan W. Leelyn, Failures in Pain Management: The Collision of Law and Medicine, 20 T. JEFFERSON L. REV. 133, 134 (2004). While some pain is not treatable, most pain is. Opioid therapy, in particular, has been demonstrably beneficial in treating chronic pain. Accordingly, physicians are frequently faced with chronic pain patients whose pain cannot be cured, but can be effectively treated.

The problem with this is that while pain is often treatable, not all physicians are well educated in pain management. They may not always follow good medical practices when prescribing, usually because they lack a full understanding of all the ins and outs of pain medication prescription. In fact, survey results from medical boards across the country have revealed a real concern by all that many doctors are over their heads when attempting to manage patients with chronic pain.

Keeping a Watchful Eye

Physicians are monitored and may potentially be investigated by their state boards of medicine, and they are also subject to investigation by the federal Drug Enforcement Agency (DEA) when they prescribe medications for chronic pain management because opioids are controlled substances that fall under the DEA's purview.

The DEA will typically launch an investigation in response to concerns that patients are either diverting their narcotics prescriptions to abusers or are themselves abusing. It is often these same concerns that lead state boards of medicine to investigate and discipline physicians for overprescribing opioids. The survey and article published in 2004 found that, on average, a state medical board receives annually three complaints about over-prescription per 1000 physicians. Id. at 24. Given the current climate surrounding chronic pain management, it would not be surprising to learn that the number of complaints has increased in the last few years. Complaints generally come from pharmacies, government regulatory agencies, or families of the patients.

Even with the number of complaints that are generated in relation to chronic pain management, state boards have typically recognized that determining whether a physician is appropriately treating chronic pain or is overprescribing is difficult. Id.

Under-prescribing can also be a problem. Complaints that a doctor has under-prescribed for a patient are not as common as over-prescription complaints, but they are increasing. 31 J.L. Med & Ethics at 30, 38. The complaining parties tend to be the patients, asserting that their physicians are inadequately treating their pain by prescribing doses of pain medications that are too low. These patients frequently also allege that their physicians have harshly or improperly labeled them as drug seekers, thereby treating them with disrespect in addition to failing to adequately treat their pain.

Of course, the most important concern here is that the patient receives the proper amount of medication so that pain relief is achieved, but over-sedation (or worse) is avoided. But both sides of this scale also need to be balanced in order for the physician to have the best chance of avoiding investigation or lawsuit.

In next month's newsletter we'll look at some of the ways in which physicians and other prescribers can avoid investigation and liability for over- or under-prescribing, while making sure their patients are receiving the best pain management care possible.

Amy J. Kolczak, a member of this newsletter's Board of Editors, is a partner in the law firm of Owen, Gleaton, Egan, Jones & Sweeney, LLP in Atlanta, where she has a general civil litigation defense practice including the defense of medical malpractice cases. Melissa P. Reading is an associate with the firm, where she practices in the medical malpractice and products liability groups.

Pain is the most common cause of long-term disability, and it is the leading reason patients seek medical attention. Unfortunately, there is also a growing population of patients who, while they may be suffering from chronic pain, are seeking pain medication either to feed their addictions or to re-sell on the street. Thus, physicians seeking to manage their patients' pain with narcotics must be mindful of both the potential liability involved and the potential for scrutiny by their medical boards.

Until recent years, physicians were able to substantially reduce the likelihood of liability or licensure issues by prescribing narcotics at low doses, thereby providing less opportunity for abuse. However, more and more often, medical boards are punishing physicians who under-prescribe medications because they have failed to effectively manage the patient's pain. Physicians are now faced with a tightrope between over-prescription and under-prescription, both of which may result in licensure penalties and lawsuits.

In 2003, the Journal of Law, Medicine and Ethics published the results of a national survey of medical boards regarding how they perceived and addressed pain management complaints. Diane E. Hoffman and Anita J. Tarzian, Achieving the Right Balance in Oversight of Physician Opioid Prescribing for Pain: The Role of State Medical Boards, 31 J.L. MED. & ETHICS 21 (2003). The survey, approved by a University of Maryland institutional review board, was directed to the state board medical director, or individuals with comparable titles, in each of the 50 states and the District of Columbia. Thirty-eight boards responded through the state board medical director, chief investigator or prosecutor, or those in comparable positions.

The findings of that study, which frames the problem physicians face with the prescription of narcotics and other chronic pain medications, provides some useful guidelines to physicians for avoiding legal issues. Likewise, the study's list of measures physicians can take to avoid liability can serve as a checklist defense attorneys can reference when defending medical malpractice or Medical Board complaints based upon a physician's pain-medication prescribing habits. It can also help attorneys to determine the strengths or weaknesses of any given case.

Over Their Heads

Pain, which is traditionally divided by the medical community into the categories of acute and chronic, is the leading reason patients seek medical attention. Shannan W. Leelyn, Failures in Pain Management: The Collision of Law and Medicine, 20 T. JEFFERSON L. REV. 133, 134 (2004). While some pain is not treatable, most pain is. Opioid therapy, in particular, has been demonstrably beneficial in treating chronic pain. Accordingly, physicians are frequently faced with chronic pain patients whose pain cannot be cured, but can be effectively treated.

The problem with this is that while pain is often treatable, not all physicians are well educated in pain management. They may not always follow good medical practices when prescribing, usually because they lack a full understanding of all the ins and outs of pain medication prescription. In fact, survey results from medical boards across the country have revealed a real concern by all that many doctors are over their heads when attempting to manage patients with chronic pain.

Keeping a Watchful Eye

Physicians are monitored and may potentially be investigated by their state boards of medicine, and they are also subject to investigation by the federal Drug Enforcement Agency (DEA) when they prescribe medications for chronic pain management because opioids are controlled substances that fall under the DEA's purview.

The DEA will typically launch an investigation in response to concerns that patients are either diverting their narcotics prescriptions to abusers or are themselves abusing. It is often these same concerns that lead state boards of medicine to investigate and discipline physicians for overprescribing opioids. The survey and article published in 2004 found that, on average, a state medical board receives annually three complaints about over-prescription per 1000 physicians. Id. at 24. Given the current climate surrounding chronic pain management, it would not be surprising to learn that the number of complaints has increased in the last few years. Complaints generally come from pharmacies, government regulatory agencies, or families of the patients.

Even with the number of complaints that are generated in relation to chronic pain management, state boards have typically recognized that determining whether a physician is appropriately treating chronic pain or is overprescribing is difficult. Id.

Under-prescribing can also be a problem. Complaints that a doctor has under-prescribed for a patient are not as common as over-prescription complaints, but they are increasing. 31 J.L. Med & Ethics at 30, 38. The complaining parties tend to be the patients, asserting that their physicians are inadequately treating their pain by prescribing doses of pain medications that are too low. These patients frequently also allege that their physicians have harshly or improperly labeled them as drug seekers, thereby treating them with disrespect in addition to failing to adequately treat their pain.

Of course, the most important concern here is that the patient receives the proper amount of medication so that pain relief is achieved, but over-sedation (or worse) is avoided. But both sides of this scale also need to be balanced in order for the physician to have the best chance of avoiding investigation or lawsuit.

In next month's newsletter we'll look at some of the ways in which physicians and other prescribers can avoid investigation and liability for over- or under-prescribing, while making sure their patients are receiving the best pain management care possible.

Amy J. Kolczak, a member of this newsletter's Board of Editors, is a partner in the law firm of Owen, Gleaton, Egan, Jones & Sweeney, LLP in Atlanta, where she has a general civil litigation defense practice including the defense of medical malpractice cases. Melissa P. Reading is an associate with the firm, where she practices in the medical malpractice and products liability groups.