The Legal Dangers of Over-Prescribing Pain Medicines
On February 5, 2016, Hsiu-Ying “Lisa” Tseng, D.O., was sentenced to 30 years to life in prison for the second degree murder of three men who fatally overdosed while under her care. A second degree murder charge, let alone conviction, as a result of overprescribing should give all California physicians pause. The Los Angeles-area doctor was the first in the United States to be convicted of murder for recklessly prescribing painkillers. (Michael Jackson’s doctor, Conrad Murray, M.D. was not convicted of murder—he was convicted of involuntary manslaughter.)
While some commentators believe the doctor’s conviction will improve standards of practice and overall patient safety, others believe patients will suffer needless pain as a result of physicians’ fear of prescribing drugs susceptible to abuse. The risk of a murder charge may well have a chilling effect. But a refusal to act is an act in itself. So, what can doctors do to continue to serve their patients, yet avoid a murder charge?
Documentation is key. When there is a clear indication for a prescription, no one can question it. If there are no objective findings, the physician should document the specifics of the patient’s complaints, and should document trials with milder agents. Prosecutors in the Tseng case told reporters she kept few records on the patients, until contacted by the Medical Board, at which point she reconstructed them. (See story here: http://www.statnews.com/2016/02/05/doctor-prescription-drug-murder/)
Prosecutors also told reporters family members went to the doctor and begged her to stop prescribing drugs to their loved one. By this point, the patient should have been referred to a pain management specialist.
Finally, if dealing with chronic pain, it is important to request and review prior medical records. Doctors should employ Universal Precautions, as outlined by Gourlay and Heit. [See, Gourlay DL, Heit HA. Universal Precautions Revisited: Managing the Inherited Pain Patient. Pain Med. 2009;10(suppl 2):S115-S123.] The 10 principles are:
- Diagnosis with appropriate differential diagnosis;
- Psychological assessment including risk of addictive disorders;
- Informed consent (verbal or written/signed);
- Treatment agreement (verbal or written/signed);
- Pre-/post-intervention assessment of pain level and function;
- Appropriate trial of opioid therapy ± adjunctive medication;
- Reassessment of pain score and level of function;
- Regular assessment of the “Four As” of pain medicine: Analgesia, activity, adverse reactions, and aberrant behavior;
- Periodically review pain and comorbidity diagnoses, including addictive disorders;
- Documentation (including history of smoking, alcohol, other drug abuse, incarceration).
Finally, if there is any suspicion of overuse, the California physician should check the CURES database. All prescription drug history information is maintained in the California’s Controlled Substance Utilization Review and Evaluation System.
Our conclusion is this is a rare case, with several factors playing into the decision to charge murder. A reasonable physician acting within ordinary standards of care and employing careful documentation should have no fear of the same thing happening to him or to her.