A lawyer provides pain management tips for doctors

I have represented a number of physicians who have been accused of “overprescribing.”  Some of these were criminal investigations by local law enforcement authorities, such as a county sheriff’s office. Some were investigations by the Drug Enforcement Administration (DEA). Some were investigations by the state licensing agency (in this case, the Florida Department of Health).

In almost every one of these cases, either the DEA, the Department of Health or the local law enforcement authority used undercover agents posing as patients to make appointments with the physician, agents usually wore a wire device, and gave the physician false information.

In several cases the investigation began when the patient died of a drug overdose (in several of these cases it was unclear whether it was a suicide by the patient or an accidental overdose).  In each of these cases, there was an angry, upset family member who blamed the physicians for the patient’s death.  In each case, the physician I represented had no idea what the patient was going to do and did not know the patient was receiving drugs from another physician.

Anytime there is a death that may have been drug related, local law enforcement authorities will usually do a thorough investigation and will usually seize any prescription medications for the patient that they can find. This may result in the prescribing physician becoming the target of a homicide investigation.

Here are some ideas on how physicians might protect themselves from drug-seeking patients. These are tips I give to physicians I advise on this issue.  Use the ones you want to and feel free to pare it down.

(Note:  The following tips are not applicable to physicians who treat cancer or hospice patients.)

1. Follow all appropriate pain management guidelines, such as those available from the Agency for Healthcare Research and Quality (AHRQ) National Guideline Clearing House.

2. Obtain, read and follow the guidance contained in “Responsible Opioid Prescribing: A Physician’s Guide” by Scott M. Fishman, M.D., endorsed by the Federation of State Medical Boards (publ. Waterford Life Sciences, Wash., D.C. 2007).

3. Read and take to heart “Ethical, Legal, and Professional Challenges Posed by ‘Controlled Medication Seekers’ to Healthcare Providers, Part 2” by Ken Solis, MD.

4. Avoid working for practices or clinics that have a reputation as a “pill mill.”

5. Most physicians who are the subjects of investigations for overprescribing tend to be sole practitioners or the only physician working in the clinic.  Avoid this.  If you are going to practice any pain management, it is recommended that you do so in a group practice or institutional setting.

6. Patients who are clearly addicted to opiates should be referred a physician specializing in addiction medicine for rehabilitation. Do not accept this patient back until the patient does this.

7. Excellent documentation is a must.  Make sure your records meet all requirements of state laws and regulations.

8. If you are not a certified specialist in pain medicine, refer pain management patients out to one who is.

9. If you get any information that the patient has been “doctor shopping” or obtaining similar medications from more than one physician, immediately terminate the relationship and notify local law enforcement personnel.  In many states, “doctor shopping” by patients is now a crime, and the physician is required to report the patient to law enforcement.

10. Be sure of the patient’s identity.  Require valid, government issued identification, preferably two, and ask the patient a few background questions that can be verified.  Identity theft is common among drug abusers seeking prescription medications.

11. Require that prior medical records, especially diagnostic reports such as MRI and x-ray reports be received by your office directly from the other physicians or the radiology facility.  Forgery of radiology reports and the sale of false reports is notorious among drug seekers.

12. Be leery of treating out-of-state patients and families of patients seeking opiates and other controlled substances.

13. If prescribing opiates for more than a short, chronic episode, require a pain management contract be signed by the patient in which the patient acknowledges your guidelines and requirements.  These will include a number of provisions that are for the protection of the physician as well as the protection of the patient who may be tempted to over-use prescribed medication.

14. Require a urinalysis test before every visit.  Wait and review the report prior to prescribing.  An absence of the medications the patient is supposed to be taking is just as informative as the presence of medications you have not prescribed.

15. Establish and maintain a good relationship with the pharmacists at the local pharmacies around your practice, especially the independents.

16. Don’t be tempted to deviate from your practice standards and procedures by the fact that the patient is a celebrity or wealthy person.  Do not deviate from your standards and procedures for anyone.

17. If the patient demonstrates drug seeking behavior (asking for certain medications by brand name and dosage, becoming angry and upset if the physician doesn’t prescribe what the patient wants, etc.), terminate the patient immediately.

18. Make sure you know what is going on outside your own office.  Make sure you have loyal, trustworthy staff, especially your receptionist and medical assistants, who will advise you of any unusual behavior or comments of patients, attempts to bribe staff, etc.  Train your staff to report such matters to you in person, immediately. Have a zero tolerance for this.

19. Be a good diagnostician. Read the patient history. Listen to what your clients say. Examine them appropriately. Do not prescribe pain medications for those who have no signs or symptoms of pain.

20. Require current x-rays, MRI’s and diagnostic tests. Do not treat based on old x-rays and diagnostic test reports.

21. If you are not board certified in the subspecialty of pain medicine, and you are not part of a large, institutional of pain management clinics, then you should only have a few pain management patients in your practice. The majority of your patients should not be pain management patients.

22. Do not ever allow a lay person or non-physician to be in control of your office, patient records, billing, bank accounts or appointments and scheduling. You will be held accountable for these; you must ensure you control them.

23. You should consider reducing the amounts of narcotics at each patient visit. Gradually weaning the patient off of addictive medication should be a primary goal of the physician.

24. Be very wary of any patient presenting with no signs or symptoms of pain or who has inconsistent signs and symptoms of pain. These are patients who may be selling the medications or who may be undercover agents seek to entrap you.

George F. Indest, III is president and managing partner, The Health Law Firm.

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  • lj_68

    A couple things, I’m a nursing student who switched majors to computer science. I am also a chronic migraine patient. I KNOW my medications by generic and brand name. I know my dosages too so yes, I can generally tell my doctors what medications and what dosages I take. That also goes for triptans, anti-seizure medications and any other medication. That does not mean I’m shopping for opiates and it does not make me an addict. I can also use medical terminology when describing when and where the pain is. I make notes after a migraine and keep track of triggers and particularly bad migraines. That doesn’t make me a hypochondriac either. What I am, is informed. Stop trying to make people into some sort of criminal for being informed.

    Urinalysis is a bad idea unless a person is on daily pain medication and you’re looking for constant levels. Migraine patients, for example, only use strong medications when needed and/or when triptans fail so a urinalysis isn’t going to tell you if someone is abusing medications i.e. taking all their meds in one day. It will only tell you if someone used medications recently. Even a high frequency of use isn’t a sign of abuse because patients can have a high migraine frequency leading to chronic migraine.

    While I understand the risk of treating addicts? Some of your advice is not quite right.

    • Bruce Scott

      “Urinalysis is a bad idea unless a person is on daily pain medication and you’re looking for constant levels.”

      It’s a bad idea even then. We aren’t talking about quantitative tests. You can’t look for constant levels. You can only see whether or not the patient has more than a threshold level. (Or has one of many potential false positives.)

      Your point about knowing the names of your medications is well made. When I’m wearing my primary care hat, I’m absolutely thrilled when my diabetic patient knows their meds by name and their doses. Why am I not thrilled when my sickle cell patient also knows this?

  • militarymedical

    You. Cannot. Be. Serious. Regarding #22. I suppose in your office, no non-lawyers schedule your appointments, total and send out your billing statements, manage your files and law library, etc., etc. “Advice” (my first word choice was “drivel”) such as that drives up overhead costs – using a nurse would be overkill in most instances of office management, as they are often no more qualified to do that than physicians are. Truly laughable advice.

    • CountyRat

      Actually, Militarymedical, having an RN schedule patients would be non-compliant with the attorney’s advice. He writes, “Do not ever allow a lay person or non-physician to be in control of your office, patient records, billing, bank accounts or appointments and scheduling.” Since RNs are not physicians, they simply will not do, no, not at all! Only a licensed physician may be hired to schedule appointments, file patient records, complete insurance claim forms, or deposit payments in the practices bank account. I see a new medical specialty arising from this advice; hereafter, the physicians who dedicate themselves to this role will proudly bear the title, “Receptionist, M.D.”

      Words fail me.

  • Mika

    The “War On Drugs” has now become the “War On Patients”.

  • lj_68

    Oh, one more thing regarding #24. Some conditions will not present “at the office” or a patient won’t keep their appointment when the condition presents. You should know this. A good example? Oh hey, it’s migraine again. In fact, be suspicious of patients who “show up” for regular appointments and claim they have “a migraine.” Unless it’s a patient who has a long history of migraine and actually can mitigate migraine pain? They shouldn’t be functioning. And when I say “can mitigate”, I’m talking patients who have had migraine since childhood and have been dealing with it for over 20 or more years.

    I can mitigate the first two phases of a migraine and function enough to get to an office or clinic for treatment but once a full attack hits? I can’t do anything more than lay down and wait.

    So again? Bad advice.

  • lj_68

    The problem with this advice is that it reads like patients = criminals and addicts. If your patient is informed? They must be an addict! Does your patient do something out of the norm? They are an addict! And whatever you do? Don’t trust your patient! Damage the trust at every opportunity by testing them even if you don’t have cause to do so! Is something off? Well, don’t ask! Just dump them on someone else!

    OH yeah, does your patient complain of pain? Well, whatever you do? Don’t believe them! They must be lying! That’s drug seeking behavior. Absolutely do no diagnostics save check for potential abuse and then?. Just get rid of them ASAP and save your butt!

    How does this fit into First Do No Harm?

    • Brian Hagerty

      lj_68: I think you misunderstood my intention. I write from the perspective of one who is an attorney, and one who has sought to advocate on behalf of loved ones suffering from chronic, severe pain that was under-treated because of liability (both civil and criminal) fears of physicians when prescribing opioids. I was commenting about the they way things are, not the way I think they should be. I strongly believe that law enforcement and governmental agencies should not be involved in the doctor/patient relationship and that doctors should be free to exercise their best clinical judgment in managing pain, free from fear of punishment by the DEA or State authorities. As I wrote, I admire doctors who practice this way already. Unfortunately, an increasing number do not, with some choosing never to write opioid prescriptions under any circumstances. Until governmental policies are changed (as I believe they should be), this trend will continue, unless doctors fears can be assuaged by well-intentioned lawyers (there are a couple left) willing to guide them along the tightrope of practicing compassionate pain care without risking sanctions as severe as license revocation and incarceration. That said, I would not reduce such advice to a mere check-off list as provided in this article, and as I alluded to in my previous comment, I would advise doctors to welcome well-informed patients, not to view informed interest in one’s own care to be viewed as a signal of “drug seeking behavior.”

  • Disqus_37216b4O

    He’s a lawyer. In a sane world, doctors would not consider taking “pain management tips” from him any more than they’d consider taking “blood sugar management tips” from him.

  • Disqus_37216b4O

    A patient knowing a lot about their blood sugar levels and which drugs, and at what doses, best control them, is A Good Patient. Informed and Responsible. Not blacklisted.

    If that same intelligent and involved patient ever suffers pain, however, they would do best to play dumb.

    Go figure.

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