California law eases threat to pain medication prescribers

Law enforcement concerns can hamper treatment for the 75 million Americans with chronic pain.

By — Posted Sept. 13, 2004

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New legislation in California is expected to help doctors warm up to pain management and reduce the "chilling effect" created by high-profile arrests of physicians whose pain-management prescriptions catch the eye of law enforcement.

The bill forces medical and law enforcement organizations to develop interagency protocols by Jan. 1, 2006, that will promote proper pain treatment. The intent is to remove the fear of unwarranted arrest by assuring that a medical perspective will be part of "competent review" that takes place before prescribing-related charges are filed. If the bill works as expected, supporters think it could serve as a model for other states -- which would be good news for the 75 million Americans with chronic pain.

"It's a nationwide issue," said Linda Whitney, chief of legislation for the Medical Board of California. "California is kind of ahead of other states, but we're all in the same position."

The California Medical Assn. is confident that the legislation will significantly improve the state's pain-management climate.

"It will have a huge impact because the message has been sent loud and clear: Unwarranted and overzealous raids on physicians' offices will no longer be accepted," said CMA Associate Director of Government Relations Bryce Docherty. "There's only a small number of arrests, but their impact is widespread and felt throughout the physician community."

The final version of the bill was approved by the Legislature without opposition and was sent to Gov. Arnold Schwarzenegger Aug. 20. "We expect him to sign it," said Brett Michelin, chief of staff for the bill's sponsor, state Sen. Sam Aanestad, DDS.

A model for other states

Docherty said he believes that the bill and the eventual protocols will serve as models for other states, because the Medical Board of California's pain treatment guidelines will be used as a "template" for the protocols and those guidelines have been used by others for the same purpose.

"The California medical board has been a leader in developing and adopting state pain policy," said Lisa Robin, vice president of Leadership and Legislative Services for the Federation of State Medical Boards.

"California's pain policy served as a guidepost in the development of FSMB's original pain guidelines, which have been widely embraced by both the medical and regulatory communities," Robin said.

Those FSMB guidelines were eventually adopted in some form by 24 state medical boards.

The need for the legislation is reflected in a 1999 American Pain Society study, which found one in four Americans in pain receives adequate treatment. Frank Fisher, MD, said improper treatment can be deadly.

Dr. Fisher, a northern California physician who was arrested and later acquitted on prescribing-related charges, said evidence of the tragic consequences of improperly treating pain can be found in studies that show 107,000 hospital admissions and 16,500 deaths each year may be the result of patients getting bleeding ulcers after using nonsteroidal anti-inflammatory drugs to treat arthritis pain. Dr. Fisher said bleeding ulcers do not develop in patients taking opioids as directed.

Bill McCarberg, MD, co-president of the Western USA Pain Society and founder of the chronic pain program for Kaiser Permanente in San Diego, said nearly every doctor knows a colleague who's been arrested or investigated. "The primary care physician out there like me, who is just trying to properly relieve someone's pain, we're all worried about this," he said. "Almost all the legal aspects of prescribing opioids favor the doctor who doesn't prescribe."

David Der, MD, an Oakland-based general practitioner and general surgeon, said pain treatment is a growing issue on the minds of most physicians. "It's a big subject, and we're all very aware of it. You prescribe too much, and you get penalized. You prescribe too little, and the patients or their families complain."

The issue is complicated by the subjective nature of pain and the presence of drug-seeking "doctor shoppers" who go from physician to physician until they obtain a prescription.

"You never know what's going on inside a patient's mind," Dr. Der said. "Unfortunately, we have unscrupulous people who complain about pain and then get their medication and sell it on the street."

Because of this, pain treatment has become an area where medicine and law enforcement intersect. The new bill calls on medical societies to cooperate with police and prosecutors in developing the new protocols.

The California District Attorneys Assn. will be part of the team that helps draft the protocols.

"If we do it right, it will be a great assist in filtering whether it's criminal conduct or medical practice," said CDAA Executive Director Dave LaBahn. "If someone is prescribing medications and killing people, we want law enforcement to be able to aggressively get in there and stop it."

In introducing the bill, Dr. Aanestad was partly motivated by the stories of two physicians in the Shasta County portion of his northern California district -- Dr. Fisher and James Gregory White, MD -- who were the targets of aggressive law enforcement actions.

Dr. Fisher spent five months in jail after being arrested Feb. 18, 1999, on murder and fraud charges, and he was not legally exonerated of all of the charges until May of this year.

He said he hopes to resume his practice again in February 2005, after his case gets another hearing from the state medical board. Even with the new law, Dr. Fisher said he would limit his pain treatment to two patients: his parents. "For the rest of the population, I wouldn't take the risk," he said. "It's one thing to take a risk and treat a patient you may catch a disease from, it's another thing to treat a patient and get thrown in the bucket for the rest of your life."

Dr. White, who said he believes he came under scrutiny for prescribing methadone, has yet to have his day in court. He has not been charged with any crime, but authorities still haven't returned the medical records they took from his home and office in January 2002, after handcuffing him and his pregnant wife.

"Almost three years after the event, I'm still treated as a guilty person," Dr. White said. "They still have all my computers and my records. Some pharmacies have concluded I'm an inferior physician and my patients have been treated openly rude because I'm their physician. Other than that, things are going well."

LaBahn said he couldn't comment on Dr. White's case because it is still "current."

The arrests took a toll on the doctors' personal and private lives. Dr. Fisher moved back into his parents' home. Dr. White was still able to practice, but he went broke and his power was cut off. He had to run extension cords to his neighbor's building to keep his office heated.

"The important thing is that I survived," said Dr. White. He added that a rewarding aspect of his ordeal is being able to see his patients improve. "As a physician, this gives me the best feeling of accomplishment I've ever had," he said. "Patients are going back to work, their pain has been reduced 80% to 90%, they're mentally alert and able to enjoy life."

Although he likes the bill's intent, Dr. Fisher said he thinks public, rather than political, pressure will end up being more significant. "The will of the people will prevail, and they will have pain treatment."

Donna Bales, president of the Kansas LIFE Project (Living Initiatives for End-of-Life Care) agreed. "We're not going to take it anymore," Bales said. "People are living longer with chronic illness, so the consumers' role can't be understated."

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Collaborative effort

The Medical Crimes: Investigation and Prosecution bill was a collaborative effort between groups that had been on opposite sides of the issue.

Official legislative supporters: California District Attorneys Assn., California Medical Assn., California Narcotic Officers' Assn., California Peace Officers' Assn., California Police Chiefs' Assn., Compassion in Dying Federation, Drug Policy Alliance Network, Office of the State Attorney General

Organizations that will develop protocols for review of prescribing-related investigations: American Academy of Pain Medicine, American Pain Society, California Chapter of the American College of Emergency Physicians, California Dept. of Justice, California District Attorneys Assn., California Medical Assn., California Narcotic Officers' Assn., California Orthopedic Assn., California Police Chiefs' Assn., California Society of Anesthesiologists, California State Sheriffs' Assn., Medical Board of California

Sources: California Senate Bill 1782, Senate Rules Committee bill analysis

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Booklet explains separate roles

Representatives of law enforcement and health care have developed a document they hope will clear up misconceptions about the roles both sides play in treating pain and preventing prescription drug abuse.

"Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel" was developed by the U.S. Drug Enforcement Administration, the University of Wisconsin Pain & Policy Studies Group and the palliative care advocacy group Last Acts Partnership.

While introducing the document, Russell Portenoy, MD, chair of the Dept. of Pain Medicine and Palliative Care at New York City's Beth Israel Medical Center, called for both sides to view the drugs used to treat pain from a "perspective of balance."

This perspective, he said, recognizes that pain has been undertreated, but also realizes there is potential for abusing opioid drugs and steps should be taken to reduce diversion.

Chief of the DEA Office of Diversion Control Patricia Good said some drug abusers find prescription drugs preferable to illegal narcotics. "These people don't become abusers as a result of medical treatment; they already misuse drugs and abuse the medical system to get their drug of choice," Good said.

David Joranson, director of the Pain & Policy Studies Group, said medicine and law enforcement have "symmetrical kinds of responsibilities."

"Pain medicine is not to contribute to abuse, and law enforcement is not to interfere in patient care," he said.

In all, the 32-page document contains 30 questions plus a disclaimer saying it should not be implied that physicians who do not follow its suggestions are operating "outside the scope of legitimate medical practice." It is available online (link).

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External links

California Senate Bill 1782, Medical crimes: investigation and prosecution, in pdf (link)

Senate Rules Committee Aug. 14 bill analysis (link)

AMA online CME pain management series (link)

AMA policy H-120.960 Protection for Physicians Who Prescribe Pain Medication (link)

About the AMA Position on Pain Management Using Opioid Analgesics (link)

"Chronic Pain In America: Roadblocks To Relief," American Pain Society and American Academy of Pain Medicine report (link)

Web site for Frank Fisher, MD (link)

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