Preventive Medicine and the Seven Deadly Sins: Avoiding Discipline Against your Medical License

Gluttony n. Excess in eating or drinking

Ahh, gluttony. I think most of us can relate to the lethargy induced by a well-celebrated Thanksgiving Day feast. For some of us, it's more than a once-a-year affair. For some of us yet, the propensity to over-consume is an ongoing struggle. Personally, gluttony is my best-practiced sin. Just give me a quart of Baskin Robbins' Pralines 'N Cream, a spoon and a towel with which to wrap it so my hands don't get frostbitten, and I can eat the whole thing. The pitiful thing is, I don't even need an Alka Seltzer!

Of course, eating like a pig isn't against any law of which I am aware, as long as I don't consume, say, a person. I am inclined to expand the defKDinition of gluttony so there can be a worthwhile examination of an area of law where physicians can find themselves in trouble. The natural gluttony nexus would seem to be excess drinking or drug abuse, but even though that may be technically correct, I know the addictive disease process certainly does not arise from gluttony. Consequently, I must thank you in advance for your indulgence in allowing me to fulfill my seven-deadly-sins theme with this particular analogy!

During fiscal year 05/06, 65 (out of 309) cases resulting in discipline arose from an allegation of drug or alcohol use. These cases involved self-use of alcohol, self-use of drugs, or excessive prescribing of drugs to patients. These are always sad cases, no matter whether the physician or the patient is the one suffering from addiction. I clearly can remember one of my first cases alleging a substance abuse issue, though this was not a controlled substance. A young anesthesiologist, suffering from a terminal illness, was found by a colleague hidden inside a broom closet having huffed fluid tape cleaner until he was barely conscious.

There are several laws relating to consumption of alcohol or drugs in the Medical Practice Act. Business and Professions Code section 2280 prohibits a licensee from practicing medicine while under the influence of any narcotic drug or alcohol to such an extent as to impair his or her ability to conduct the practice of medicine with safety to the public and his or her patients. Section 2239 prohibits excessive use of drugs or alcohol:

(a) The use or prescribing for or administering to himself or herself, of any controlled substance; or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct.
-- BUSINESS AND PROFESSIONS CODE SECTION 2239

The prohibition against self-prescribing a controlled substance bears repeating. Many physicians do not realize that they may not self-prescribe any controlled substance. This includes pharmaceutical samples.

The most common event that triggers a Medical Board investigation for a Business and Professions Code section 2239 violation is a conviction for drunk driving. Whenever a physician is convicted of a crime, the Medical Board is notified of it. If it's a first conviction for drunk driving, and absent any information the physician is suffering from a problem that could potentially impact patient care, we generally will resolve the case with advice to the offender about our Diversion Program. Upon notification of a second conviction, however, the investigation will be more extensive. Investigators will obtain copies of the police reports and court documents. Investigators will interview the physician and possibly other witnesses. The case may be then transmitted to the Office of the Attorney General for consideration for disciplinary action. There is also a second option. If the conduct arises solely out of a substance abuse problem, and there are no quality of care issues, a physician may be a candidate for the board's Diversion Program (an intensive rehabilitation program). Here the physician signs an agreement admitting to conduct for which discipline can be imposed, but in lieu of that discipline being imposed, the physician instead agrees to enter the Diversion Program. If the physician fails to successfully complete diversion (which is a five year commitment), then the underlying case is referred to the Office of the Attorney General and treatment is imposed via the board's order (versus the agreement originally signed). Ideally, physicians will avail themselves of the diversion program prior to coming to the attention of the enforcement program, but we realize it often takes a sentinel event, like an arrest (or two) before treatment is sought.

Excessive prescribing is another facet of gluttony, although the impetus for the physician is usually a different sin: greed. In the early 90s, we revoked the licenses of physicians who sold prescriptions for Dilaudid for distribution on the street. Today, Oxycontin is the analgesic du jour, and was the nemesis of a physician whose license was recently revoked for selling enormous quantities to a motorcycle gang. Then there are the run-of-the-mill-pill cases: physicians who provide prescriptions for Vicodin, or whatever else the patient requests, without an appropriate prior examination and a medical indication. Los Angeles is particularly rife with drug cases and the occasional high-profile case involving excessive/inappropriate prescribing to celebrities. The tragic aspect of these, and many of the complaints we receive, is that often the physicians do not come to the board's attention until someone has overdosed.

Frequently, a complaint is initiated because Dr. X is prescribing huge amounts of Norco and Soma to the complainant's spouse. The complainant is worried - angry - frustrated because their loved one just got out of rehab. The complainant called Dr. X to implore him to stop writing prescriptions, especially the ones from which the loved one was just detoxified, and Dr. X will not stop. Other times, the complainant is the parent of a child who has overdosed. The parent finds their dead child among hundreds of bottles of pills. Sometimes the complainant is another law enforcement officer who pulls someone over and finds scores of pill bottles in their vehicle.

Over prescribing cases can be very complex to investigate. This is because investigators must determine whether the patient is suffering from a legitimate pain condition and is legitimately receiving large quantities of narcotics, or whether the patient is merely drug seeking or diverting drugs for sale on the street. Sometimes, to further complicate matters, a patient may be both.

The discernment process ordinarily begins with a review of a Controlled Substances Utilization Review (CURES) report for both the physician and the patient. The report is called a Patient Activity Report (PAR) and is used to analyze patterns of over prescribing. The PAR form can be downloaded from the board's Web site. What kinds of things pique our curiosity? The quantity of a particular drug is just one piece of information. There are circumstances where a huge amount of narcotics may be perfectly appropriate. So, we look to see how many doctors the patient is visiting. Is the patient "doctor shopping" and going to different pharmacies to avoid detection? Does the patient live a ridiculously long way from the physician's practice? None of these factors, in and of themselves, may be problematic. Our index of suspicion rises, when we see a multitude of these patterns. Please see page 12 for a list of potential indicators that may suggest a patient is using prescriptions inappropriately. This is an excerpt from a Department of Justice brochure entitled, Guidelines for Combating Prescription Drug Abuse and Fraud.

An investigator may initiate surveillance, or undertake an undercover operation. If the undercover operation proves fruitful, then a search warrant may be considered. Prescribing without a legitimate medical purpose is a both an administrative and criminal offense.

But, before you are incapacitated with concern that board investigators may be lurking in your waiting rooms, please understand that the office waiting areas, where search warrants are executed, often look like a Grateful Dead reunion. By the time a warrant is sought, usually one or two operatives have visited the clinic on several occasions and received controlled substances for absolutely no legitimate medical reason.

MBC investigators know that most patients receiving narcotic medications are receiving them in a perfectly legitimate way. MBC investigators also have no interest in discouraging physicians from prescribing narcotic analgesics to patients suffering from a medical condition causing pain; that is why so much time is spent distinguishing the legitimate pain management practice from the pharmaceutical drug peddler. Investigators are mandated to receive specialized training in pain management cases to make certain physicians who follow the intractable pain guidelines (Business and Professions Code section 2241.5) are not disciplined for over prescribing. Also unique to these cases is that once investigators obtain medical records, interview all of the relevant parties, and interview the physician, if it appears there may be a violation of law, the case must be reviewed by two experts: one whose specialty is pain management, and one whose specialty is that of the prescribing physician. That is important for you to know: we investigators do not decide whether the standard of care has been met. Your peers make that determination. Our job is to provide the board's peer reviewers with the best information possible from which to render an unbiased and thorough opinion.

The Medical Board's Web site (www.mbc.ca.gov) is an information glutton's dream. You can find guidelines and laws regarding pain management, prescribing, ordering CURES reports and the Diversion Program (among many other subject matters). This is an excellent resource to familiarize yourself with these and other issues, and there are numerous resources available to you online, if you have concerns about a patient, a colleague, or your own situation.

In the spirit of gluttony, I have grossly exceeded my allocated space. Now I must scamper off to rescue my ice cream before it melts or heaven forbid, someone wants to share it!

Coming up next: Greed.