Achieving the right balance in oversight of physician opioid prescribing for pain: The role of state medical boards

Journal of Law, Medicine and Ethics

Volumn 31, Issue 1, 2003, Pages 21-40

  Hoffmann, Diane E ^a   Tarzian, Anita J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

NARCOTIC ANALGESIC AGENT; OXYCODONE;

ARTICLE; CLINICAL PRACTICE; DRUG CONTROL; DRUG USE; EMPIRICAL APPROACH; GOVERNMENT; HEALTH CARE AND PUBLIC HEALTH; HISTORY; HUMAN; INFORMATION PROCESSING; LEGAL APPROACH; LEGAL ASPECT; LICENSING; MANAGEMENT; OPIATE ADDICTION; PAIN; PRESCRIPTION; STATISTICS; UNITED STATES;

EMPIRICAL APPROACH; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH;

ANALGESICS, OPIOID; DATA COLLECTION; DRUG AND NARCOTIC CONTROL; DRUG UTILIZATION REVIEW; HISTORY, 20TH CENTURY; HISTORY, 21ST CENTURY; HUMANS; LICENSURE, MEDICAL; OPIOID-RELATED DISORDERS; OXYCODONE; PAIN; PHYSICIAN'S PRACTICE PATTERNS; POLICY MAKING; PRESCRIPTIONS, DRUG; STATE GOVERNMENT; UNITED STATES;

EID: 0043261582     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2003.tb00057.x     Document Type: Review

References (55)

1. D.E. Hoffmann, "Undertreating Pain in Women: A Risky Practice," Journal of Gender-Specific Medicine, 5 (2002): 10-15, at 12.
2. Id. at 12.
3. Id.,
4. citing A.M. Martino, "In Search of a New Ethic for Treating Patients with Chronic Pain: What Can Medical Boards Do?," Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 332-49, at 332.
5. D.A. Marcus, "Treatment of Nonmalignant Chronic Pain," American Family Physician, 61 (2000): 1331-38, 1345-46;
6. R.K. Portenoy, "Opioid Therapy for Chronic Nonmalignant Pain: Clinician's Perspective," Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 296-309.
7. A.G. Lipman, "Treatment of Chronic Pain in Osteoarthritis: Do Opioids Have a Clinical Role?," Current Rheumatology Reports, 3 (2001): 513-19.;
8. B.H. McCarberg and R.L. Barkin, "Long-Acting Opioids for Chronic Pain: Pharmacotherapeutic Opportunities to Enhance Compliance, Quality of Life, and Analgesia," American Journal of Therapy, 8 (2001): 181-86.
9. G.M. Aronoff, "Opioids in Chronic Pain Management: Is There a Significant Risk of Addiction?," Current Review of Pain, 4 (2000): 112-21;
10. K.L. Sees and H.W Clark, "Opioid Use in the Treatment of Chronic Pain: Assessment of Addiction," Journal of Pain & Symptom Management, 8 (1993): 257-64.
11. M. Massing, The Fix (New York: Simon & Schuster, 1998).
12. S.H. Johnson, "Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act," Journal of Law, Medicine & Ethics, 24, no. 4 (1996): 319-27.
13. C.S. Hill, Jr., "TBS/TCPI Pain Symposium in Conjunction with TexMed 2002," Texas Pain Bulletin (July 2002):
14. at description of presentation by Frank Adams, M.D., at the Texas Pain Society and the Texas Cancer Pain Initiative's Symposium, Opioids, Medicine and the Law, Dallas, April 19, 2002, available at 〈http://www.texaspain.org/ displaycommon.cfm?an=1&:sub articlenbr=5〉;
15. Hoover v. Agency for Health Care Administration, 676 So. 2d 1380 (Fla. Dist. Ct. App. 1996);
16. In re DiLeo, 661 So. 2d 162 (La. Ct. App. 1995).
17. C.S. Hill, "The Barriers to Adequate Pain Management with Opioid Analgesics," Seminars in Oncology, 20 (1993): 1-5;
18. M.L. Levin et al., "Management of Pain in Terminally Ill Patients: Physician Reports of Knowledge, Attitudes, and Behavior," Journal of Pain & Symptom Management, 15 (1998): 27-40.
19. D.Y. Brockopp et al., "Barriers to Change: A Pain Management Project," International Journal of Nursing Studies, 35 (1998): 226-32. Research has shown the fears of addiction and overdose or hastened death with opioid use to be highly exaggerated.
20. See M. Bercovitch et al. "High Dose Morphine Use in the Hospice Setting. A Database Survey of Patient Characteristics and Effect on Life Expectancy," Cancer, 86 (1999): 871-77;
21. K.J. Boyd and M. Kelly, "Oral Morphine as Symptomatic Treatment of Dyspnoea in Patients with Advanced Cancer," Palliative Medicine, 11 (1997): 277-81.
22. See Johnson, supra note 8.
23. A. Alpers, "Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying," Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 308-31.
24. J.H. Von Roenn et al., "Physician Attitudes and Practice in Cancer Pain Management. A Survey from the Eastern Cooperative Oncology Group," Annals of Internal Medicine, 119 (1993): 121-26.
25. D.C. Turk et al., "Physicians' Attitudes and Practices Regarding the Long-Term Prescribing of Opioids for Non-Cancer Pain," Pain, 59 (1994): 201-08.
26. D.E. Weissman et al., "Wisconsin Physicians' Knowledge and Attitudes About Opioid Analgesic Regulations," Wisconsin Medical Journal, 90 (1991): 671-75.
27. See Turk et al., supra note 15.
28. D.E. Joranson et al., "Pain Management, Controlled Substances, and State Medical Board Policy: A Decade of Change," Journal of Pain & Symptom Management, 23 (2002): 138-47, at 140.
29. Id.
30. The Mayday Fund was established in 1992 with funds from the estate of the late Shirley Steinman Katzenbach. It is dedicated to the reduction of the physical and psychological effects of pain. See 〈http://www.painandhealth. org/mayday/ mayday-home.html〉.
31. FSMB's Model Guidelines were adopted on May 2, 1998. They recommend evaluation of the pain patient by the physician, formulation of a treatment plan, securing informed consent for treatment, performing periodic review of therapy and outcomes, obtaining appropriate consultations or referrals for patients when necessary (e.g., patients with substance abuse history), keeping accurate and complete medical records, and maintaining compliance with controlled substance laws and regulations. See S.H. Johnson, "Introduction: Legal and Regulatory Issues in Pain Management." Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 265-66.
32. D.E. Joranson et al., 2001 Annual Review of State Pain Policies: A Question of Balance (Madison: Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center, 2002), available at 〈www.medsch. wisc.edu/painpolicy/publicat/ 01annrev/contents.htm〉.
33. E. Goodman, "From Oregon, A Call for Compassionate Care," Boston Globe, September 9, 1999.
34. "Promoting Pain Relief and Preventing Abuse of Pain Medications: A Critical Balancing Act," a Joint Statement from 21 Health Organizations and the Drug Enforcement Administration (October 21, 2001), available at 〈http://www.medsch. wisc.edu/painpolicy/dea01.htm〉.
35. See U.S. Drug Enforcement Administration, OxyContin: Pharmaceutical Diversion, Drug Intelligence Brief (March 2002), available at 〈http://www.usdoj.gov/dea/pubs/intel/02017/ 02017.html〉.
36. B. Meier, "OxyContin Prescribers Face Charges in Fatal Overdoses," New York Times, January 19 2002;
37. B. Meier, "A Small Town Clinic Looms Large as a Top Source of Disputed Painkillers," New York Times, February 10, 2001.
38. Individuals who reviewed the draft survey include: Aaron Gilson from the Pain & Policy Studies Group at the University of Wisconsin, Sandra Johnson from Saint Louis University School of Law, Jack Schwartz and Tom Keech from the Maryland State Attorney General's Office, Kathryn Tucker from Compassion in Dying, and Irwin Weiner, a retired physician board member of the Maryland Board of Physician Quality Assurance.
39. The survey was designed to be administered during a phone interview, but a minority of respondents opted to complete the survey in written form.
40. See Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center, Data-base of State Laws, Regulations, and Other Official Government Policies, at 〈http:// www.medsch.wisc.edu/painpolicy/ matrix.htm〉 (last updated November 5, 2002).
41. See Pain & Policy Studies Group, University of Wisconsin Comprehensive Cancer Center, Prescription Monitoring Programs, at 〈http://www.medsch.wisc.edu/painpolicy/domestic/ diversion.htm〉 (last visited February 12, 2003).
42. In addition to formal written complaints, twenty-two of the thirty-eight respondents also accepted complaints by phone, e-mail, or anonymously, although anonymous complaints were investigated only in rare circumstances (i.e., regarding serious complaints when sufficient information was provided to investigate further). Some states first considered allegations that were transformed into complaints after a formal process in which preliminary evidence was collected.
43. This could include complaints against physicians for prescribing opioids for pain patients they were treating, prescribing for themselves, or trading opioids for money or sex.
44. This is consistent with the findings of Weiner and Pound in their "Project on Legal Constraints on Access to Effective Pain Relief," in which they interviewed medical board members (cited in Johnson, supra note 8, at 321), and found that the boards were "not able to separate actions against physicians treating patients for pain from the more general disciplinary category of abuse of prescription drugs."
45. The actual range of values was 0 to 250. To correct for the outlier values of 100 and 250, these values were "windsorized" to the next highest values of 57 and 58, respectively. Those numbers were then divided by the number of physicians per state (see data at 〈http://www.education- world.com/a_lesson/ TM/WS_census_states.shtml〉) and multiplied by 1,000.
46. The task of investigating and disciplining physicians was implemented by different individuals, departments, or agencies, depending on the structure of the board and whether it was part of an "umbrella" agency. When referring to boards' investigating or disciplining physicians, we are referring to whatever mechanism the individual board implements to investigate or discipline physicians in that particular state.
47. See Pain & Policy Studies Group, supra note 29.
48. The lowest dose of OxyContin is 10 mg. An opioid-naïve patient with chronic pain is typically started on 10 mg of OxyContin twice a day, and the dose is increased until the patient's pain is controlled (unless the pain is refractory to opioid therapy or other circumstances exist). Suggested dosing for OxyContin is twice a day or every 12 hours, not four times a day. Patients with cancer pain are more likely than patients with chronic nonmalignant pain to take larger daily doses, but there is usually no way of knowing by daily mg dosing alone whether a physician has overprescribed OxyContin for an individual patient.
49. The respondent conveyed that referral to a pain management specialist would be expected for primary care physicians treating patients with complex chronic pain.
50. Eighteen respondents thought their boards had not received any such complaints - their pain undertreatment complaint estimate was entered as zero. Of the nineteen who thought their boards had received such complaints, fifteen were able to give a 2001 estimate. If a range was given, the median of the range was entered. The actual range of values was 0 to 25. To correct for the outlier value of 25, that value was "windsorized" to the next highest value of 13. Raw values were then divided by the number of physicians per state (see data at 〈http:// www.education-world.com/a_lesson/TM/WS_census_states. shtml〉) and multiplied by 1,000.
51. We specifically asked about prisoners as a source of complaints, as they tend to file complaints with state medical boards regarding poor medical care in general. One respondent said he "tended to investigate most prisoner complaints because they're in a duress situation; they might not get the best care," while another commented, "Some department of corrections issues, like prisoners' being undertreated, we don't investigate. Even if it's true, are we going to do anything about it?"
52. Estimates for four of the five respondents whose boards had not used a pain management expert were entered as zero (one reported no cases of pain undertreatment complaints and did not know the number of opioid overprescribing complaints. We did not assume that this board had complaints about opioid prescribing to investigate, so we considered data for that board as missing). Of the twenty-three respondents whose boards had used a pain management expert and who gave an estimate of the percentage of investigations in which such an expert was used, if a range was given, the median of the range was entered.
53. Joranson et al., supra note 22.
54. The following scenarios may also indicate inappropriate quantities of opioids being prescribed: (1) the doctor is prescribing relatively low dose tablets but in great volume and does not know to shift the patient to a higher dose, a longer acting version, or a different drug, when the current drug is no longer effective; (2) the doctor may be prescribing in the hundreds of tabs a day. However, focusing on quantity alone is generally insufficient to determine that a physician is overprescribing.
55. See Martino, supra note 3.