Pain Management

Even though criminal prosecutions of physicians are still rare, they have become more common within the past ten years. Detailed examination of these cases, however, illustrates that fear of criminal prosecution or investigation should not deter physicians from aggressively using opioid analgesics to manage terminal pain, provided that pain has been carefully assessed and treated and communication with families and involved professionals is thorough. In fact, as these and other cases demonstrate, patients’ fears about dying in pain or suffering from lack of institutional sensitivity to the quality of dying are justified.

Hoover v. Agency for Health Care Administration, 676 So.2d 1380 (Fla. App. 1996). Appellate court overturned disciplinary penalties against physician for use of controlled substances in pain management noting the "paucity of evidence" to support the board's action and the board's reliance on the testimony of doctors who lacked expertise in chronic pain management.

In the Matter of Dileo, M.D., 661 So.2d 162 (La. App. Ct. 1995). Physician appealed from a judgment of the Board imposing disciplinary actions against him for prescribing various substances to eight of his patients which were in excess of legitimate medical amounts. The Court vacated the judgment of the trial court upholding the Board's decision and dismissed all charges against the physician. Seven of the physician's patients had chronic pain. The Court reasoned that "this was not a situation where a physician was prescribing pain medication without an examination or a reasonable belief that the patient was in pain or in need of medication. Rather, the record shows that the patients being treated had suffered serious injury or other medical complications which supported the use of pain medications."

Smith v. California State Board of Pharmacy, 37 Cal. App. 4th 229 (Cal. App. 1995). Pharmacist appealed from the Board's suspension of his pharmacy license. The Board accused the pharmacist of falsifying records and dispensing excessive amounts of controlled substances. The facts suggest the pharmacist was the pharmacist-in-charge, and the proper action was in negligence. The Court ruled the pharmacist was deprived of due process because imprecise charges were levied against him. Reversed.

Konstantin, M.D. v. Drug Enforcement Administration, 50 F.3d 15 (9th Cir. 1995). Physician petitioned the Court for review of a Drug Enforcement Administrator's order to increase sanctions against him for violation in prescribing drugs. Physician wrote prescriptions for undercover agents, often without physical exams. DEA estimated that up to 30% of his patients were controlled substance abusers. Reportedly, the physician gave them prescriptions to prevent them from getting worse drugs on the street. Petition denied.

Colorado State Board of Medical Examiners v. Davis, 893 P.2d 1365 (1995). Physician appealed the Colorado State Board of Medical Examiner's decision to revoke his medical license. The Board found that the physician's care fell below accepted medical standards when he prescribed Demerol for patient's use by home injection and prescribed unnecessary medication to two other patients who were subsequently hospitalized for habitual drug use. Physician was addicted to drugs since the 1960's. Most recently, physician administered Demerol to his patients while diverting some of the drugs for his own use. Following a police investigation, he was arrested. Physician admitted his dependency, but alleged that such dependency qualifies him under the 'American with Disabilities Act.' Decision to revoke physician's license affirmed.

Hook's-Superx, Inc. v. McLaughlin, 632 N.E.2d 365 (Ind. Ct. App. 1994). Pharmacy contends that it owed no duty to patient to refuse to fill prescriptions presented by patient. Over ten months, patient presented prescriptions to be filled to help alleviate his back pain. His physician then refused to issue any more suspecting that he was addicted to the drugs. The Court found that since patient did not show that the pharmacy knowingly, and in bad faith, filled the prescriptions, there was no breach of duty. Reversed and remanded. Note: The Supreme Court of Indiana (Hook's-Superx, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind. S. Ct. 1994) vacated the opinion of the Court of Appeals and affirmed the trial court in its denial of Hook’s motion for summary judgment.

Hook's-Superx, Inc. v. McLaughlin, 642 N.E.2d 514 (Ind. S. Ct. 1994). The Supreme Court of Indiana found that where a pharmacy customer is having a prescription for dangerous drugs refilled at an unreasonably faster rate than the rate prescribed, the pharmacist has a duty to cease refilling the prescription pending direct and explicit directions from the prescribing physician. Considering the pertinent factors -- the relationship between the parties, forseeability of the harm, and the public policy concerns -- the court concluded that a duty should be recognized. "Clearly, society has an interest in preventing the overuse and misuse of prescription drugs. Recognizing that pharmacists have a duty, the court argued, helps further this goal."

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