December 2011 Volume 8 Number 4

Chair's Column: DRUGS

By David H. Johnson, Bannerman & Johnson, P.A., Albuquerque, NM

AuthorNo, I am not referring to the song by Talking Heads, nor am I seeking to conjure the spirits of Jimi, Janis or Hunter S. Rather, recent events have brought into focus the degree to which drugs, and especially the abuse of prescription drugs used to relieve pain, have become part of the array of issues that health lawyers must address when counseling their clients. This realization began, strangely enough, at the Section’s Washington Healthcare Summit (more on that event in a future column). According to the attendees’ reviews, the most popular event at the Summit was a lunchtime presentation by Joseph Rannazzisi of the Drug Enforcement Administration’s (“DEA”) Office of Drug Diversion Control. Mr. Rannazzisi began with a harrowing description of the methamphetamine epidemic that plagues America’s rural communities in particular. By halfway through his presentation, his listeners had learned how to “cook” meth in the rear of a car traveling the back roads of Appalachia using ingredients largely obtainable at a store like Wal-Mart. The second half of his presentation focused on a different epidemic, that of the abuse of prescription drugs, principally those of the opioid class. Think Michael Jackson or Rush Limbaugh. Think Florida, where recent articles in the national press have described a flourishing industry of “pill mills” dispensing prescriptions for Schedule II narcotics to all comers and whose state government, on “privacy” grounds, had until recently blocked efforts to establish the same data base linking doctors, pharmacies, patients and controlled drug prescriptions that exists in other states. Similar problems with pill mills, of a lesser magnitude perhaps, exist in other states. That is the enforcement view of the world.

Yet, the larger picture is more complex. Prisons and jails are bursting with incarcerated drug users. Treatment programs, underfunded in the best of times, face a dire future as government budgets are slashed. Especially troubling are the disproportionate penalties for “crack” as opposed to “powder” cocaine, which have resulted in African-Americans receiving substantially longer sentences than white Americans based solely on their preferences for the form of drug. This issue, among other concerns, is detailed in a recent article in the New York Review of Books by Justice John Paul Stevens, “Our ‘Broken System’ of Criminal Justice.” Last year Congress passed the Fair Sentencing Act of 2010, which lessened but did not eliminate the disparities in sentencing for cocaine-related crimes.

A decade ago, medical providers were confronted with an increased emphasis on addressing the problem of the undertreatment of pain. Pain became the fifth vital sign. Physicians were prosecuted both administratively and civilly for not being sufficiently aggressive in treating their patients’ pain. As a new, potent generation of opioids (Oxycontin, Fentanyl patches) came on the market, physicians responded by prescribing these medications, sometimes without fully understanding their potential for abuse. Enter the “pill mill” problem. Doctors and other providers were caught in the middle – fearful of underprescribing, fearful of medical board or DEA prosecution for overprescribing. Casting their net even wider, federal and state prosecutors began filing claims against manufacturers of the new generation of opioids, arguing that they had misrepresented the risks of addiction and encouraged physicians to develop “pain practices” using their products.

The risk of developing dependence on controlled drugs has long been considered an occupational hazard of the practice of medicine (e.g. Freud’s cocaine habit). To address this problem, many states developed physician health programs (“PHP”s).1 These programs focus on clinical assessment, providing (or overseeing) therapy and drug monitoring for impaired physicians (and often other healthcare professionals) usually in coordination with state licensing boards. Outcome studies of PHPs demonstrate that they are surprisingly successful in their mission of rehabilitating impaired professionals. Relapse, which is the bane of drug treatment programs, is relatively infrequent and usually occurs after the physician leaves the program. For those who relapse and then reenter a PHP the prognosis is still good. Law enforcement, however, is often unsupportive or ignorant of PHPs and their work, with the unfortunate result of the incarceration of healthcare professionals who could be rehabilitated through participation in a PHP and whose essential crime relates to their ability to supply their habit through writing prescriptions and/or obtaining drugs from their patients (“If this Percocet doesn’t work bring it back to me and I’ll prescribe something stronger.”).

Finally, I am particularly pleased to report that there are efforts underway to bring the ABA Standing Committee on Substance Abuse within the Health Law Section. The Standing Committee has long been involved in both public and professional education and legislative and regulatory advocacy related to issues involving substance abuse policy. As I hope the above discussion demonstrates, this union should be a natural fit. We believe that the addition of the Standing Committee would significantly augment the Section’s resources in this important area. I hope to have further news of this development soon. The Standing Committee’s participation in Section activities and our support for its ongoing advocacy and educational efforts will be a strong partnership to address these important issues. Let us know your thoughts as to how the Section can play a role in these issues and whether you would like to participate.


My knowledge of physician impairment and PHPs comes from having represented hospitals and physicians in matters related to impairment in both medical staff and medical board proceedings and having served as a board member of the New Mexico PHP since 2003.


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