Avoiding Pain Management Prosecutions

Documentation, documentation, documentation.

That’s the general mantra of Jennifer Bolen, JD, an attorney who has been in involved in pain management consultation and medical record auditing for 12 years.

Although doctors think they’re doing a good job at “piecing together” a rationale for prescribing opioids to their patients, they simply aren’t good at writing this information down, according to Bolen.

“A can of worms gets opened up because they’re not staying current with standards of care,” she said. The consequences could lead to prosecution.

Bolen addressed delegates here at PAINWeek 2014 during a presentation on pain management prosecutions, and said following her presentation.

Published Guidelines

Most state licensing boards have published guidelines on what is required when prescribing opioids, but doctors don’t appear to be reading these guidelines, said Bolen.

“When I asked how many in the room have not read licensing board guidelines in the last year, three quarters of the people put their hand up,” said Bolen, who estimated that about 500 delegates were in the audience.

“They don’t slow down enough to pay attention to the things that could really save them some heartache.”

To drive home her point, Bolen tells doctors to get out a blank piece of paper, draw a line down middle, and on one side put the “shalls” and “musts” and on other side, the “should” and “mays.”

Along with conducting a history and physical examination, doctors would be wise to use a risk assessment questionnaire to help identify patients with potential for abusing or diverting drugs. “It’s free, it doesn’t cost anything, and it doesn’t take much time,” said Bolen.

Among the warning signs of drug abuse or diversion are patients “self-escalating” their use of opioids, showing up at the doctor’s office “short of meds and wanting an early refill,” doctor shopping, and failing a drug screen for an illicit substance, said Bolen. Another clue might be an anonymous caller to the doctor’s office saying a particular patient is selling drugs, she added.

Drug testing frequency is “tied to the patient’s risk” and typically would occur at least twice a year, but more frequently if some “bad behaviors crop up,” said Bolen. For a high-risk patient, testing may not only be more frequent but could also include different types of testing, she said.

Court Cases

It’s difficult to get a handle on just how many pain management–related prosecutions occur every year across the country. That’s because many cases aren’t published and some may involve plea agreements, which, according to Bolen, aren’t as easy to track down as jury convictions.

During her presentation, she presented several cases to illustrate how documentation, or lack thereof, can be crucial to the outcome of a case.

One (US v Roggow, 2012) involved a 2-week criminal case of a female doctor charged with trafficking. She had prescribed high doses of opioids and had prescribed opioids to patients who also used marijuana, said Bolen, who was one of the attorneys of record for this case.

During this trial, expert witnesses were brought in to testify about how these drugs are dangerous and should never be given out in such high doses, said Bolen. Witnesses for the defense testified about how this doctor had developed a relationship with her patients, some of whom were in great need of pain relief.

One of these patients was a female firefighter who fell while on duty, breaking several bones and suffering brain damage. She was later attacked and run over by a car, developed multiple sclerosis and lupus, and couldn’t testify at her trial “because she was in a palliative state,” said Bolen.

Look-Back Syndrome

As for prescribing opioids to patients who used marijuana, this doctor reportedly did caution the patients involved. “She was not completely sanctioning it, but back then, drug testing was not as prevalent or as advanced as it is today,” said Bolen, who criticized the use in court of what she called the “look-back syndrome.”

This, she said, is when witnesses testify about a problem or issue that occurred in the past but from a current perspective.

The jury in this case found the defendant not guilty. Bolen believes it was the documentation that saved her. “They had to believe that she had a real relationship with her patients based on her documentation, based on what was written in there, based on her efforts to follow what was in place at the time as protocol,” she said. “She had massive records.”

It was a textbook example of what not to do said Jennifer Bolen

Another case (US v Schneider, 2013) illustrates the other side of the coin. It involved a husband-and-wife team with a practice that attracted addicts and had prescribing patterns that caused the deaths of at least 56 patients, according to Bolen.

The doctor in this case indiscriminately prescribed controlled substances in excessive and escalating amounts and had “helter-skelter management of risk,” said Bolen. “It was a textbook example of what not to do.”

The verdict was guilty.

“The sentencing judge said drug addicts are vulnerable victims, meaning that the doctor is in a heightened position of trust to assess a person as to whether he or she has a problem before giving opioids and then throughout the relationship,” said Bolen. “And if doctors don’t do that, they have violated their position of trust — and in the federal system we have here, they can get jail time.”