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Tuesday, June 19, 2007

Prescription for pain

One of the themes that I have pursued in my scholarship is the frequently elusive line that distinguishes criminal conduct from mere civil wrongs. That theme was taken up in a context I had not considered before in a cover piece by Tina Rosenberg in Sunday’s New York Times Magazine, entitled “When is a Pain Doctor a Drug Pusher?” The main focus of Rosenberg’s piece is a Greenwood, S.C., physician named Ronald McIver, who, based on evidence that he had been prescribing many times the recommended dosage of various opioids, was sentenced to thirty years in prison for drug trafficking. Rosenberg believes not only that the law was wrongly applied to McIver’s case, but that the law itself should be changed.

Rosenberg’s description of the facts is so sympathetic to McIver that it’s hard to tell whether the facts really did support his conviction. Rosenberg argues that McIver’s sin was nothing more than being overly aggressive in his approach to pain management, and perhaps sloppy about his record keeping (though she does note that some of McIver’s patients were regularly selling excess amounts of prescribed drugs to third parties.) She suggests that the one patient of his who did die, allegedly as a result of over-prescription, had an underlying condition that was the real cause of his death.

Whether or not Rosenberg’s reading of the facts in the McIver case is accurate, what troubles me is her treatment of the larger legal issue that it raises. So far as I can tell, Rosenberg thinks that we shouldn’t ever criminalize what she calls “bad medical decisions.” Before criminal sanctions can be imposed, she says, the evidence ought to show a “link broken” between the patient’s medical condition and the drug prescribed, such as when a doctor exchanges a prescription for money or sex or writes a prescription for a made-up name or without ever seeing the patient. So long as there is some intact link between the medical condition and drug prescribed, she says, criminal prosecution is not warranted. Instead, she says, cases of mere recklessness should be referred to the state medical board or should result in a claim for civil malpractice.

Although at one time controversial, recklessness has long since become a common mental element in the criminal law. So I’m puzzled as to exactly why Rosenberg (who I assume is not a lawyer) would want to limit liability here. The best I can make out is that she is making an argument based on overdeterrence: that the fear of being prosecuted for overprescribing opioids is part of why doctors are undertreating their patients in pain. (A related reason is the worry that their patients will become addicted.)

The undertreatment of pain is undoubtedly a significant problem in American medicine. Doctors may well have legitimate concerns that their aggressive treatment of pain could lead them to be unjustifiably prosecuted. And a thirty year sentence for Dr. McIver, like many sentences handed out in drug trafficking cases, does seem excessive. But Rosenberg's proposal seems to go too far. Surely there are ways to reeducate and resocialize doctors to prescribe pain medicine in an appropriate manner without completely eliminating the possibility of criminal liability for reckless medical care.

Posted by Stuart Green on June 19, 2007 at 11:21 AM in Criminal Law | Permalink


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One of the problems I have seen with pain treatment is that what one side of the controversy calls appropriate, the other calls reckless. Right now we have prosecution or threats of prosecution for physicians who appear to be complying with the most current science about treating pain. Given the current state of chaos, the wide-spread under treatment of pain and the heavy hand of criminal prosecution, I find myself leaning towards wishing government out of this particular situation. I say that knowing there are times when reckless medical treatment has huge consequences, but in the balance very concerned about the effect of these prosecutions on physician behavior.

Posted by: Jacqueline Fox | Jun 20, 2007 7:26:54 PM

In my blog, I reproduce a table with seven alternatives to evidence based medicine.

Posted by: Pedro Morgado | Jun 19, 2007 11:11:36 PM

Good post. There's a short story on pain management that I think captures the despair of the people involved:

Andrew Vachss later wrote a book on this subject as well.

Posted by: Rafe | Jun 19, 2007 5:56:24 PM

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