Conference Coverage

ICOO: Opioids blurring criminal activity and malpractice




BOSTON – There may be no area of clinical medicine in which strict adherence to medical standards is more important than in the prescription of opioids.

Rather than malpractice, the consequence of deviations from accepted standards is often criminal prosecution, Dr. Carol A. Warfield said at the International Conference on Opioids.

Some physicians, believing they have acted in the best interests of the patient, have been sent to jail, said Dr. Warfield, professor of anesthesiology at Harvard Medical School, Boston. “Juries don’t seem to understand the difference between malpractice and criminal activity.”


The distinctions are large, she said. In the case of opioids, criminal practice occurs when prescriptions are dispensed without a legitimate medical purpose. Inappropriate prescription of opioids, however, may be malpractice but it is not criminal, particularly if the underlying intent was to relieve patient suffering.

But that distinction is not necessarily recognized in the courtroom. Dr. Warfield recounted numerous criminal cases involving opioids in which the intent of the physician was to relieve pain. Prosecutors in those cases pointed to incomplete records or the lack of a physical examination to convince juries that a crime had been committed.

Often, a criminal prosecution begins with an opioid overdose. Charges may ensue with a review of the medical records that leads prosecutors to believe that standard practices were not followed. But bad outcomes are not essential to trigger an investigation.

Other cases start with an insurance company review, Dr. Warfield cautioned. “High utilization and increased costs push [insurers] to investigate doctors with peer review, and many criminal cases start with an insurance company that thought the clinician was prescribing too much of an expensive drug.”

What can physicians do to protect themselves from these accusations? Ensure that opioids are prescribed within the acceptable standards of practice, which includes first creating a clear physician-patient relationship, Dr. Warfield advised. Opioids should not be prescribed without a physical and history that provides a basis for the diagnosis. And provide clear documentation for each step of care, she emphasized.

Dr. Warfield acknowledged that she “is not a big advocate of using opioids for chronic pain” in her own practice. However, “I am a big advocate of a doctor’s right to do so.”

The risks of malpractice suits and criminal prosecution have already produced some defensive behaviors, inducing a growing number of physicians to abandon opioids altogether, she said. Others will give opioid injections, but will not prescribe opioids in any other form. Still others insist on lengthy consent forms that outline opioid risks.

Dr. Steven J. Bennett, director of pain services at Greenwich (Conn.) Hospital said that he is concerned about the current climate.

“I am very careful in my practice. I document everything,” Dr. Bennett said. However, “opioids are useful in my practice. They can help the right patient, so I am going to keep using them. I just plan to be very careful.”

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