Federal and state regulators have intensified the scrutiny of physicians in recent years in response to mounting overdose rates and the corresponding rise in mortality. Many in health care see this as a good thing. They would be wrong.
Look no further than the many physicians who were acquitted or exonerated after being charged with prescription-related crimes. Their plight tells the untold story of the collateral damage inflicted on medicine as a whole.
Dr. Dave Lewis: “In the court of public opinion, you truly are guilty until you’re proven innocent.”
I know because I defend these physicians for a living. I see firsthand how, from nothing more than the pretense of assumption, criminal charges are concocted. And out of those charges, a litany of regulatory agencies, from state medical licensing boards to federal insurance agencies, unveil a cascading array of summary suspensions and unilateral revocations.
It’s a domino effect at its worst.
When I defend these physicians, I tell them to expect nothing less than a years-long battle. But that’s just the criminal court case. Even after acquittal, my clients must then go through the gauntlet of bureaucracies, one after another, just to obtain the licensure and credentialing to resume their clinical practice.
Due process means little when traversing the legal divide between criminal and administrative law. A guilty plea is more than just the repercussions of sentencing. A criminal trial lasts far longer than the time allocated by a judge.
Dr. Joseph Parker: “The government knows they can just wear you down. The prosecutors know how to turn the medical licensing board against you. They know the regulatory agencies better than you. And they know how to turn them against you.”
Until we find ways to ensure physicians receive fair due process at both the criminal and administrative levels, physicians will always be at an undue disadvantage. The legal system for physicians is a complex confluence of criminal, civil, and administrative law that scathes my clients long after they’re acquitted or exonerated.
One such client of mine spent years in prison waiting for a trial. He was denied bond on multiple occasions and languished while waiting for his day in court. Despite being recently acquitted, he still must go through the regulatory processes required to regain his medical license.
Sisyphus had it easy compared to him.
Sadly, these regulatory hurdles often pale in comparison to the reputational damage my physician clients face, which lingers far longer than anyone would like to admit.
Dr. Joseph Parker: “Even when you’re acquitted, your life and career as a physician are in shambles. You die the moment you step in the courtroom. Whatever remains is what you rebuild with.”
The solution, like many things in health care, is simple, yet something that most don’t want to face. Proactively create a robust compliance system that preemptively addresses the legal arguments prosecutors and regulators use against physicians.
Many physicians that I speak to, who are lucky not to befall the fate of my clients, reflexively state they have nothing to worry about. After all, if I’m not doing anything wrong, I have nothing to worry about, right? Well, just ask my clients. Even on the day of acquittal, after enduring years of stress and economic hardship, vindication feels like a Pyrrhic victory.
Dr. Dave Lewis: “I was acquitted months ago. My life still hasn’t returned to normal. It’s just something that I’ve learned to accept, knowing I’ll never be the same.”
These physicians would rather remain in the dark, conveniently choosing to ignore the fangs of litigation hanging above their heads like the Sword of Damocles. Others boast they already have a compliance system, that their current system is more than sufficient to offset any potential legal inquiry. I can’t tell you how many physicians who boast like this scurry back after an investigation has begun, often when it’s too late.
Sometimes it’s hubris. Sometimes it’s a lack of awareness. Physicians look at legal risk differently compared to regulators and prosecutors. Often it’s not so much the quality of care as it is the way a physician documents that care. Particularly in today’s increasingly litigious world of medicine, legal liability comes down to how that risk is perceived.
Health care risk is inherently complex and it varies based on how a particular clinical decision or action is perceived. There are second and third-order consequences often overlooked since they’re not immediately apparent to physicians. Things that may not necessarily matter when looking at medicine solely through a clinical lens, but things that make all the difference between a simple audit request and a full-blown regulatory investigation.
The decision to prescribe opioids is the most common issue cited when exemplifying the disparate perspectives in risk. For many physicians, distrusting a patient is sacrosanct, tantamount to willful malpractice. But for regulators, overly trusting a patient is a red flag that can bring a myriad of state and federal regulators to your doorstep.
In this scenario, we see two perspectives: the physician who prioritizes the risk of leaving a patient in pain, and the regulator, who prioritizes the risk of drug diversion. Both are looking at the same decision to prescribe opioids, but the risk emphasized is different.
To paraphrase Robert Frost: and that makes all the difference.
A compliance system is not a crutch to cover for poor clinical care as many physicians might think. It’s a way to protect physicians against risk they might not realize they’re incurring. A robust compliance system frees physicians from the cognitive shackles of legal paranoia, allowing physicians to focus on what truly matters: caring for their patients.
In that sense, a compliance system doesn’t just protect physicians clinically, it preemptively protects them against years of protracted litigation.
If you don’t think that’s worth it, just ask the many physicians I’ve acquitted.
Jay K. Joshi is a family physician and author of Burden of Pain: A Physician’s Journey through the Opioid Epidemic. Ron Chapman II is a federal criminal defense attorney.