Michael Arnold Glueck, M.D., and Robert J. Cihak, M.D.
Wednesday, May 12, 2004

The government permits doctors a zero percent error rate in prescribing medicines. No mistakes allowed. Even one prescription judged unlawful can lead to a conviction that labels the doctor a felon, and triggers other laws resulting in loss of medical license and the ability to make a living as a physician.

Compare this zero tolerance with the much more lenient policy applied to insurance companies under contract to process Medicare claims. For these companies, the government allows a seven percent error rate.

In the past, we've described how over-zealous government agents target doctors. But behind this zeal are other factors.

One is the prohibitionist attitude towards some pain-killing medicines, such as morphine and other opiates. Until the 1920s, narcotics users were under medical treatment largely ignored by government agents. However, Congress created a Narcotics Division of the Treasury Department which succeeded in creating a very large criminal class for itself to police, but has not “solved” the narcotics problem to this day.

Another factor is that pain management is a judgment call; there are no objective tests to measure pain.

Yet another is the remarkable advances in pain-relief medications that have become available over the past decade. In the 1990s, new drug forms such as Duragesic and Oxy-Contin markedly advanced the art and science of pain treatment. They do not cure the condition causing pain.

Patients often become dependent on these drugs just as people taking replacement thyroid hormones become dependent. Note well: the patients are not "legally" addicted, according to the definition below. They are dependent, meaning the patient requires the medicine to ameliorate the pain and get on with life just as some patients require replacement thyroid hormone to function normally.

The Drug Enforcement Administration (DEA) defines addicts as "individuals who habitually use any narcotic drug that endangers the public morals, health, safety, or welfare" [21 USC Sec. 802 (1)]. This leads some to the mistaken belief that chronic non-cancerous pain patients taking large amounts of legally-prescribed narcotics are addicts and that physicians who treat them are conspirators in the illegal drug trade. This ignores the medical fact that less than one percent of chronic pain patients are addicted in this sense.

However, the DEA takes the non-medical and non-scientific position that narcotics such as OxyContin should be the medicine of "last resort for chronic pain," disregarding the dangers of other non-narcotic and less-effective medicines. Obviously, determining whether a pain patient is also an "addict" and whether OxyContin is "medically necessary" in treating chronic pain is clearly beyond the ability of DEA agents who are rarely physicians and who never actually have a patient-doctor relationship with the people they accuse of being addicts.

A drug addict seeking new thrills or transitory highs is a very different person from a patient whose chronic pain is relieved by pain medicines.

Unfortunately, the police and news media often conflate the two categories. The drug police get reports of pain medicine prescription from pharmacies. They investigate, arrest and prosecute doctors prescribing what these police think is too much of these medicines. Other doctors hear about these arrests and understandably become more reluctant to prescribe the doses many patients need.

Dr. Jane Orient, Clinical Lecturer in Internal Medicine at the University of Arizona College of Medicine and Executive Director of the Association of American Physicians and Surgeons, says:

"The needs of patients, and the need of society to combat the social pathology of substance abuse, can be met only if physicians are treated by law enforcement as allies rather than adversaries, and the rights of both patients and physicians are respected. Zero tolerance for error will result in zero access to desperately needed treatment for many patients."

Fortunately, patients and physicians are organizing to combat these misinterpretations of law and medical practice. They are presenting model policy and legislative proposals to policymakers around the country, including Washington D.C., with positive changes already enacted in many states.

In pain treatment, half a loaf can be as bad as no loaf at all; inadequate treatment leaves the patient still suffering. Too many people are paying a painful price because their doctors rightly fear being charged with a crime for helping them.

Maybe people in chronic pain should go directly to vice squad agents for medical services - since they’ve taken on the ultimate responsibility for determining what’s “medically necessary.”

Related Articles:

http://www.newsmax.com/archives/articles/2004/4/14/141600.shtml

http://www.newsmax.com/archives/articles/2004/3/9/150847.shtml

http://www.newsmax.com/archives/articles/2004/3/4/94631.shtml

http://www.newsmax.com/archives/articles/2004/2/18/102139.shtml

http://www.newsmax.com/archives/articles/2004/2/3/220948.shtml

http://www.newsmax.com/archives/articles/2003/10/10/205929.shtml

Editor's Note: Robert J. Cihak wrote this week's column.

Robert J. Cihak, M.D., is a Senior Fellow and Board Member of the Discovery Institute and a past president of the Association of American Physicians and Surgeons. Michael Arnold Glueck, M.D., is a multiple-award-winning writer who comments on medical-legal issues.

Contact Drs. Glueck and Cihak by web e-mail.