More on Criminalizing Medicine


Just read about a case involving the next step down the slippery slope of criminal prosecution of physicians.

First Michael Jackson’s physician gets prosecuted when his physician gives him an unintentional overdose of an anesthetic medication when trying to help him sleep. According to a previous discussion on this topic, most people seemed to think that prosecutors were justified in those charges.

Now, Dr. Mathew Wallack is being criminally investigated for illegally prescribing excessive doses of narcotics.

Who should be responsible when a patient dies from an overdose of medication and a physician allegedly prescribes “too much” of that medication? Oh, and how do we define “too much”?
Then who should be responsible for making sure that patients aren’t getting multiple prescriptions from multiple physicians – which could result in an overdose and death?
Then who should be responsible if physicians don’t have access to that information – preventing them from determining whether their prescription, combined with the patient’s other prescriptions, may lead to overdose and death?
Then who should be responsible if physicians prescribe a one-month supply of medications and the patients take them all within a week and die?

This is why I think criminal prosecution of physicians who make mistakes is a bad idea. We may be able to pick out the “outlier” cases that might warrant criminal prosecution, but should we subject those practicing medicine to criminal prosecution by using vague definitions? Take their licenses away. File civil actions against them. Jail time shouldn’t be part of the paradigm.

The further we travel down the road of criminalizing medicine, the more difficult it will become to draw a line between what is and is not considered “criminal” behavior … and the fewer physicians that will want to practice medicine.


  1. Because a prosecutor files a charge doesn’t mean the physician will be convicted. You ask who should decide if they’re liable and the answer is society, in the form of a jury and elected judges.

    Likewise if you think your prosecutor is overzealous, that can be remedied at the ballot box.

    As far as waiting on medical boards to revoke licenses, do you really think we can count on them to consistently do so? And as far as filing a civil action, putting aside your desire to make that as difficult as possible, it’s not the same thing. A criminal charge is society’s way of expressing dissatisfaction with ones actions. A civil action is a dispute just between the parties to the suit.

  2. Also a civil action does not exist without damages. So if you show up to deliver me drugs but I’m late and don’t get them and am not harmed, no case. But there is a criminal action for possession with intent to deliver.

    And the medical board lacks the funding to investigate this sort of thing. So relying on them gets us nowhere.

    WC, is there any action or omission you believe a physician should be held accountable for? Or even investigated regarding?

    • I’ve been asking you to give me an example of a single bad outcome – just one – for which physicians should never be held liable. You repeatedly refuse to answer that question.
      If the physician is prescribing narcotics to nonexistent patients or getting kickbacks from patients for prescribing narcotics then that is a criminal action. If the physician is prescribing large doses of narcotics to someone in pain who has developed a tolerance to those medications, are we still going to say “you’re going to jail, pal”?
      Amputating wrong limb. Leaving foreign bodies in patients. Giving insulin to patients with symptomatic hypoglycemia. There are a few actionable offenses off the top of my head. Still waiting for your answer about non-actionable ones. Dum-te-dum … … hell freezing over … etc, etc, and so on.
      As for “lack of funding” … good answer. First, you made another of your famous unsubstantiated factual statements, but we’ll assume your assertion is true.
      States lack funding to provide appropriate medical care to all their residents, too. Maybe we should just drop medical care altogether. States lack funding for sufficient public defenders. Let’s just declare everyone guilty and throw them in prison. Oh, wait, we don’t have enough funding for prisons, either. We’ll just declare martial law all over the country, because relying on underfunded state programs “gets us nowhere.”
      I knew I could count on you to clear things up for me.

      • Are you of all people whining about unanswered questions? Really? I’ve answered your question multiple times but you don’t like the answer. Nothing I can do about that.

        You seem to be all upset about an investigation you know very little about. It’s the mere suggestion that someone might investigate the actions of a physician that infuriates you. Much less charge them. You whine about a slippery slope but that makes no sense.

        Am I incorrect about medical board budgets? Is there money for a medical police force? Cash for undercover buys? If so please let me know. You’re criticizing my assumption without explaining whether it is incorrect. If it is by all means let me know.

        What you didn’t address, for obvious reasons, was the point: that your alternative remedies are inadequate. That point I guess you agree with but it must pain you too much to admit.

      • Please do link me to the answers you have provided, oh Guru of the straight answer. I’ll sit right here and wait with bated breath for the link that will fulfill my soul.

        If a crime has been committed, of course the state and/or feds should be involved. In case your logic circuits need to be reset, we’re talking about what actions to call crimes, not a large scale shift of criminal enforcement to state licensing agencies.

        My “alternative remedies” – taking away professional licenses and filing civil lawsuits – are “inadequate.”

        Hey. If you know that civil lawsuits are inadequate and you aren’t encouraging your clients to file criminal claims, then you’re guilty of legal malpractice.
        Now, since civil actions are inadequate for enforcing negligence, we have to file criminal charges against you, too. Should that be a state or a federal crime?

        I’m sure you’ll now come back and qualify the silly statements you made.

        Feel free to come back so I can taunt you a second time.

      • I still am not following why you’re all bent out of shape. Do you not believe what he’s been charged with and is being investigated about should be a crime at all?

        I find your demands for answers laughable given the fact you ignore any question no matter how direct. Does your hypocrisy know no bounds?

        As to yours, as I’ve told you at least three times, you’re asking me to pose hypotheticals about medical procedures of the top of my head. I, much like you in legal matters, lack the background to answer that. Now, could I review the evidence in a trial and tell you if I agree that a physician who was not foun liable was in fact not liable? Sure. Send me a court transcript and I will be glad to discuss why I think that particular bad outcome should not have resulted in the plaintiff prevailing.

        As to my point regarding inadequacy I think you didn’t read closely. If a physician were to deliver drugs to an undercover officer there is no civil claim. Yet it’s still a crime. Do you understand now why the civil liability is inadequate? Also, a civil case can be resolved confidentially. Yet we as a society may still want to punish the wrongdoing. Again, that can only be done with a criminal charge. Does that help?

        What you’re forgetting in your outrage are two things: one, that you know almost nothing about the evidence for either side; and two, he hasn’t been convicted of anything. The state is doing it’s job in investigating or charging someone suspected of a crime. There is no conviction yet. Do you get this incensed with all criminal cases or is it just physicians who should never be investigated?

        Also, CaptainAnswers, was my assumption about medical boards incorrect?

      • To Matt,

        Why spend all of that energy affirming that you have already answered? The easier route is to provide the link. I haven’t seen your answer, so I would appreciate that link.

      • I can’t remember which threads it was asked and answered in. Rather than search again I answered again below. Not sure why it’s even relevant to this overall discussion though.

      • Matt –
        You “lack the background to answer that” question? You have enough knowledge to file medical malpractice cases against physicians, but you can’t come up with one medical scenario in which a patient has a bad outcome but the physician should not be sued for negligent behavior? Rather ironic.
        Because I argue an alternative point of view does not make me “upset” or “outraged” as you repeatedly suggest. Good inflammatory language, though. What’s next, name calling?
        Just because I choose not to answer every one of your repeatedly rebuffed questions over and over again (can you say 30 years of California tort reforms?) doesn’t make me a hypocrite. Those ad hominem attacks get you real far, though, don’t they?

        There are some times that you make good points in your arguments. There are others where you give the perception of being one of those little puny lap dogs. When someone enters your room, you bark at them until they get annoyed. Then, when they stomp their foot at you, you run a little further away, turn around, and start barking at them again.

        Give it a rest.

      • ” You have enough knowledge to file medical malpractice cases against physicians, ”

        This is a fundamental misunderstanding which you continue to have. Almost every attorney who does med mal gets an opinion from a physician as to whether negligence exists before they proceed with filing suit. The attorney may know the appropriate law, how to file the action, what they’ve got to prove, but at the end of the day whether or not there was negligence is going to come from a physician.

        ” but you can’t come up with one medical scenario in which a patient has a bad outcome but the physician should not be sued for negligent behavior? Rather ironic.”

        Not ironic at all as I explain above. There are hundreds. Every medical malpractice suit ever filed has a bad outcome involved. After all, no damages=no case. But I can point you to every case that the physician prevailed as examples where a bad outcome did not equal negligence. What more do you want?

        “Because I argue an alternative point of view does not make me “upset” or “outraged” as you repeatedly suggest. Good inflammatory language, though. What’s next, name calling?”

        Seriously, is this what you’re reduced to? Complaining about “inflammatory language”? Do you ever recognize your own hypocrisy?

        “Just because I choose not to answer every one of your repeatedly rebuffed question”

        Rebuffed? Is that another way of saying you don’t answer? I’ve asked you very simple questions, like how many malpractice suits are filed every year. I don’t mind you not answering, because your non-answer I realize is as close as you getting to admitting you’re wrong. I just find it humorous that you then sanctimoniously accuse me of failing to answer you. Again, you’re missing the plank in your own eye.

        ” Those ad hominem attacks get you real far, though, don’t they?”

        Ad hominem attacks? Is “ad hominem” your magic phrase for avoiding a very direct question? I guess it works in some situations, but to most it just seems evasive. Or that you don’t know what the term means.

        “There are others where you give the perception of being one of those little puny lap dogs.”

        So you whine about personal attacks and “inflammatory language” at the start, and end with this. Seriously, do you even read what you write?

        I’m sorry you don’t like the truth. Many people don’t, and most react just as you do–whining, personal attacks, and using phrases like “ad hominem” in an attempt to avoid. But you don’t need to. Be bigger than that – I believe you can. Sometimes it’s just ok to say “I don’t know.” I tell you that all the time about medical procedures – I don’t know. I don’t comment much on those discussions, but I read them all, again, because I don’t know. It’s ok not to know things, doc. It’s also ok that other people may know more about a particular subject. That happens. You don’t have to be mean or petty about it. After all, it’s just the Internet.

  3. WC, I, umm, {GASP} sort of agree with Matt on this one. The medical boards lack the funding, and sometimes there really is a criminal issue. I think intent of the physician is the key. Just as protections for an attorney fall away if their intent is a directly aid or further criminal acts, so should a physician’s if their intent is criminal (but we do agree, the protections afforded physicians are too meager to start with). Let me give you a hypothetical case…

    A woman comes to the emergency department complaining of upper abdominal pain. As part of the workup, the physician performs a pelvic exam – unusual for upper abdominal pain, but not unheard of. The nurse asks the physician, after the exam, why he chose to do one in this case. The physician sheepishly admits the woman was his high school civics teacher and he had a crush on her as a teen. He essentially says that he “just wanted to look (at her genitals)” Now the exam was performed in the usual, professional fashion, with a female escort present. Gloves were worn, no improper touching, etc. Is that criminal? I would argue yes – albeit very difficult to prove. However civil damages or medical board issues with it would be even harder to prove…

    • Your hypothetical describes an intentional tort. Proving wrongdoing requires proving intent. In your example, the physician admitted a tortious intent, so therefore a crime was committed. Not difficult to prove at all – the physician admitted his ill intent.

      Here’s a better example …
      Cancer patient with bony metastases. On chronic narcotics. Takes 80mg of morphine 3 times a day – which would kill most anyone else taking that much.
      Patient is moaning and in pain. Physician gives an extra dose of 40 mg and the patient dies.
      Criminal act, or not?
      Suppose the physician knew that it was substantially likely that the patient would stop breathing and die from the extra dose of medication?
      Criminal act or not?
      Even that issue is not settled.

      If we’re going to say that medical actions with “malice aforethought” are criminal, fine. We can incarcerate the ones who intentionally overdose patients or who cut their initials into a patient’s surgical site. Let’s say you don’t like lawyers and refuse to treat them in the emergency department. One dies of an MI because you refused to treat him when you knew he was having an MI. EMTALA violation, sure. But should your bad feelings and failure to act amount to incarceration?
      What about the nursing student on her first day of rounds that pushes 40 meq of potassium IV because she misread the physician’s order to administer the medication IV piggyback? Jail time for her, too?
      Then we can get into criminally negligent actions – those in which injury is substantially likely to result, but there is not specific malicious intent. Are we going to build new jail complexes for doctors that perform risky surgeries or who give chemotherapy – along with the docs that “overprescribe” narcotics?

      This is my point when I warn about the slippery slope — where does it stop?
      We’ve already started our slide, I’m afraid.

      • What are you talking about? There are what, a million physicians? How many have been charged with this sort of thing? How many convicted? How many would you expect?

        Seems the hysterics may be premature if you don’t know the answer to the above questions.

      • And you appear to argue that the existence of a civil cause of action should preclude pursuit of a criminal conviction against a physician. Am I understanding you correctly on that?

      • No, you’re not correct. But keep trying to twist things.
        Civil and criminal actions exist for intentional torts. You know, or reasonably should have known that.
        Issue: How does society differentiate between civil negligence and criminal negligence?
        We’ll see how long it takes you to answer that question. Given your lack of a response to the “what isn’t negligence” question, I’m not holding out much hope.

      • Your post contains some statements that I think you’re misusing. But the answer to your bolded question is the standard of proof is the main difference.

      • Incidentally, what isn’t negligence are actions omissions that don’t satisfy the elements of the claim. As to specific medical actions, yet again, I would have to see all the facts. I don’t know the standards of care for medical procedures I’m every given situation.

        It’s humorous that you would ask though, given how offended you get when people without medical
        degrees dare question you. Now you’re upset that I’m deferring to your superior knowledge of medicine. Weird.

      • “If we’re going to say that medical actions with “malice aforethought” are criminal, fine. We can incarcerate the ones who intentionally overdose patients or who cut their initials into a patient’s surgical site. Let’s say you don’t like lawyers and refuse to treat them in the emergency department. One dies of an MI because you refused to treat him when you knew he was having an MI. EMTALA violation, sure. But should your bad feelings and failure to act amount to incarceration?
        What about the nursing student on her first day of rounds that pushes 40 meq of potassium IV because she misread the physician’s order to administer the medication IV piggyback? Jail time for her, too?
        Then we can get into criminally negligent actions – those in which injury is substantially likely to result, but there is not specific malicious intent. Are we going to build new jail complexes for doctors that perform risky surgeries or who give chemotherapy – along with the docs that “overprescribe” narcotics?”

        Again, I think we need to look at the lawyers and their rules for guidance. As Matt has pointed out, we sit here and gripe that we don’t like the burdens of proof in a med mal case. Lawyers wrote it in that errors in trial strategy are not actionable. We should be insisting on similar rules. As for criminal actions, we should again that the lead from the rules governing lawyers. If criminal intent, or intent to further a criminal enterprise, can be proved, then the physician should charged criminally. Mere negligence, even that which is clearly actionable and excessive, should be dealt with civilly. Criminal charges should be reserved for criminal intent, not professional stupidity.

        To answer your lawyers example, no, I shouldn’t be charged criminally for refusing to treat an attorney (… I should be given a medal, just kidding). I should be charged civilly if a duty to act could be proved. However, if I intentionally pushed a amp of 100 mEq of potassium IV to treat a potassium level of 3.0 in an attorney while shouting “Shakespeare was right”, then charge me criminally.

      • Matt –
        “The standard of proof” is a cop out answer. Of course it is the standard of proof.
        Let me be more specific. How should society differentiate criminal medical acts from civil medical acts?
        Give me the wording that all the states should use in the statute – without using the word “egregious” or any of its synonyms.

        Fyrdoc –
        “Criminal charges should be reserved for criminal intent, not professional stupidity.”
        Agree 100%. That’s the whole point of this post.

      • It’s not a cop out. You asked the difference and I gave it to you.

        I don’t think society needs to differentiate. A civil action is between two private parties. If person X runs a light and runs someone down and causes them significant injuries, I think there ought to be a private civil cause of action to pursue the injured party’s damages. Likewise, I see no reason that the state cannot pursue a criminal charge for violating the light.

        As to medical actions, I think the difference between criminal and civil negligence is typically going to be recklessness. Do the actions, even if the intent is not there, rise to that level (recklessness, gross negligence, however the state wants to define it). For example, if you’re an alocholic and operate drunk and hurt someone, I think that person ought to have a private right of action for their damages. At the same time, I see no reason why society should not be allowed to punish you as well. Do you disagree?

        In the case you’re so incensed about, I didn’t see what specific statute he was charged under. Do you know? Post it and let’s discuss that one. At some point though, it’s going to rely on the interpretation of the jury applying the facts to the language of the statute. If the term is recklessness or “gross negligence”, that’s a fact question for a jury to decide. We can’t draft a statute which says “in X situation this is reckless and this is not” for every possible permutation of human behavior.

  4. How about “mentally ill” instead of criminally responsible? MJ’s Doctor didn’t mean to kill anyone, it was an accident right? Lock up… I mean help Dr. Mathew Wallack for his lack of insight in a prison… I mean a mental hospital.
    He wasn’t thinking right at the time of the “accident” is all.
    Keep him in the mental hospital until someone believes he is “good” again.

    • If we could lock up everyone that made bad decisions and call them mentally ill until someone deemed them cured, there wouldn’t be enough police to take care of them all.
      Should Moe, Larry, and Shemp qualify?

  5. I’m diagnosing Matt with a personality disorder. He can’t even agree with somebody without insulting them.

    Please don’t sue me.

  6. You’re taking the argumentative standpoint that I don’t agree with: we can’t regulate for every possible situation that comes up; so let’s sit on our hands and do nothing.

    In my opinion, it crosses from civil to criminal when *your* action becomes “reckless endangerment” and something bad happens as a result. And it’s not like we’re hauling up every doctor on charges for “gray area” decisions.

    Look at an engineering analogy. Say I design a building and decide to save money by approving a shoddy design. Next say I kill 100 people because the building falls on them. Do you think it would be right that the only punishment I receive is losing my license?

    • I’m not saying that we should do nothing. I’m saying that we need to be very careful in allowing the definition of criminal actions to expand to include negligence.

      You’re right that we’re not “hauling up every doctor on charges,” but where do we draw the line between those that are hauled up on charges and those who are simply sued?

      Regarding your engineering example, you and your corporation can be sued in civil court.

      Are you suggesting that every cost cutting measure resulting in someone’s death should result in criminal charges?

      Toyota executives should have been imprisoned for the rest of their lives while they were here for those floor mat hearings, then, huh?

      • We draw the line on a case by case basis. That’s why we have trials. You can’t draft a statute to encompass literally every variation of human behavior.

      • By the way – Mrs. WhiteCoat and I had a discussion about the Toyota issue – she thinks all the members of Toyotas board should be thrown in jail because they had reason to know that their products could cause substantial harm in a very small subset of car owners.
        I told her that vaccine protesters probably feel the same way and she gave me this look …

      • I think your encounter sums it up nicely. Some things are judgment calls, and in our society that’s why we have juries, with people who have just as diverse of opinions as you and she.

  7. Another sidebar:

    “On chronic narcotics. Takes 80mg of morphine 3 times a day – which would kill most anyone else taking that much.”

    Wellll, not necessarily a *chronic* pain patient on *chronic* narcotics. That kind of dose can be somewhat shallow-end-of-the-pool for more than a few of the brain tolerant/opiate dependents.

    Just sayin’. (In case I’m misinterpreting your stance, WC.)

    As for Doc Wallack and the reported prescription of 200 pills over a three week interval…*shrug*
    I can break that down. Again, not terribly uncommon in the land of chronic pain. Not saying it’s great, mind you, as much as understanding how–and when, where and why–such things happen.

    So easy to cast stones…without “the rest of the story”.

  8. Off the current topic but relevant…in the article it said that the ER alerted police when drugs were found on the Doctor in question while he was signed in as a patient for an unnamed medical complaint.

    This seems really odd to me. Since when are ERs in the business of doing police work? Just because someone comes in for an overdose or whatever reason doesn’t mean that they get reported to the cops if they happen to have drugs on them. That smacks of some pretty worrisome patient confidentiality issues if the ER is in the business of playing detective. Finding drugs on someone is not a something that has to be reported to the cops- unlike gunshot or other wounds suspicious for violence which must be reported to the police.

    • No, but if illegal drugs are found on a patient they must be turned over to the police. Not doing so is illegal in most jurisdictions. Unless a hospital has a policy of taking possession of illegal street drugs, and means of disposing of them, they need to contact the police at least to take possession of the drugs found.

      Whenever a patient comes in where I work and we find drugs on them for whatever reason, we call the police to take possession of the drug. Usually the patient is then charged with possession.

      If the drugs found in this case were not in a prescription bottle, let’s say found as a baggie full of pills (a common street manner of carrying), the police should have been called.

  9. YokelRidesAgain on


    It’s still not clear to me what, exactly, you’re advocating. It seems to be something close to blanket immunity for physicians and other health care workers who are engaging in care of patients, i.e., not actively intending to cause harm.

    Although I agree with you that the history of prosecuting physicians for “overprescription” of narcotics has been troublesome and led to significant, harmful unintended consequences, nonetheless I would maintain that a tiny minority of physicians have quite obviously been serving as drug dealers under a thin veneer of clinical practice. If we’re going to give impoverished youth 25 to life in the slammer for dealing drugs, I don’t see how it’s possibly fair for a physician doing essentially the same thing to get off with only civil penalties and loss of their illicit income.

    Likewise, I can’t see that lack of intent to harm should automatically result in immunity from prosecution for a doctor who does something completely beyond the pale of reasonable practice. If intent is the key issue, why don’t we let people who drive drunk and kill someone go free? It’s highly unlikely that they INTENDED to kill someone.

    • I think what Whitecoat is saying is that this *isn’t* beyond the pale of reasonable practice in a lot of cases, especially when a patient has chronic pain. How is a jury expected to decide if a patient was really in that much pain after the patient dies?

      The doctors probably don’t just NOT intend to kill, but also have the professional opinion that it probably WON’T kill. I’d expect that a doctor dealing with patients that require high doses of narcotics or anything else that is potentially dangerous would have at least discussed the potential for harm with the patient, and that the patient would have decided that that is an acceptable risk. I know I got reminded by both the doctor AND the pharmacist, every time I got given substances that were substantially LESS dangerous, of the possibility for things to go wrong. It isn’t like every doctor that prescribes narcotics is just throwing them at patients, hoping their problems will go away. They’re making judgement calls, and if there is a substantial risk that they will be jailed if something goes wrong, even if the probability of something going wrong because of their call is low, less doctors will be willing to make that call for people that really need it. In some countries doctors won’t even remove an ectopic pregnancy because of the risk that someone will see it as “an abortion” and then they will get jail time. This is intended as an analogy, as well as an example of the bad things that can happen when criminalising medicine too much. I’m aware that prescribing narcotics isn’t as clear cut as this.

    • A tiny minority of physicians are sued successfully for medical malpractice – but look how the fear of lawsuits has changed the way all physicians practice medicine.
      If this physician is selling bottles of Vicodin in the side alleys, of course criminal charges need to be filed. If the issue is that the physician is prescribing “too many” narcotics and is therefore liable for the patient’s death, we have to be very careful lest the fear of criminal charges fundamentally changes how physicians prescribe pain medications. What is “way too much” for you or me may be “way too little” for a cancer patient or opioid-dependent patient.
      The difference between the physician and the impoverished youth is that part of a physician’s job is to prescribe pain medications.
      Setting aside the issues of selling to intoxicated or underage patrons, would it be fair to throw a liquor store owner in jail for selling “too much” alcohol? What do you think would happen to liquor sales if police started arresting people for this crime?
      The whole issue about drunk driving and killing people is defined by statute. If you are above the legal limit and are involved in an accident causing bodily injury, you have violated the law. Intent doesn’t matter for just that reason – it would be difficult to prove.
      What law should we create about physicians and prescribing medications that fairly criminalizes actions we deem to be inappropriate?

      • What’s wrong with the statutes in place? Have you read them? For example, which statute is the guy you’re so incensed about charged with violating?

        If you don’t know – why are you all bent out of shape about the statute and the investigation?

  10. Whitecoat, I’m similarly perplexed by this particular case. I agree with you 100% that it is a slippery slope when the police start investigating and prosecuting doctors for what seem to be medical errors or poor patient outcomes. I myself am a chronic pain patient due to a congenital spinal problem that’s led to 6 spine surgeries and permanent nerve damage. While I don’t think my dose of meds would give the police or jury pause in quite the same way it is doing in the case, I’ve been on the receiving end of doctor paranoia about getting prosecuted for overprescribing narcs and even doctor reluctance to take me on as a patient because they don’t want to risk it and it is frustrating. The whole DEA system involvement and doctor prosecution led to my pain being completely untreated and/or undertreated for years and I can definitely tell you that it sucks but despite that I can see the flip side with regards to there sometimes needing to be more oversight.

    However, on the basis of the article you linked to in your post, it seems like there is more to the story than just a doctor making a good faith effort to provided needed prescriptions to a person he thought was legitimately in pain. I have a fabulous pain management doctor who couldn’t be nicer or more understanding, but I’m still required to submit to random urine drug screens and I had to sign a pain agreement stating that I would not obtain or fill any narcotics from other doctors without approval from my pain doc. I feel like those are reasonable steps to take that aren’t a huge burden on the pain patient (and shouldn’t prevent people with legitimate pain from getting treatment) and if a doctor fails to take even those most basic steps to ensure medication compliance and prevent medication abuse or diversion, I think the police may have the right to at least do some investigation after a patient death. Two things really stood out to me in the article. The first was that the doctor was initially arrested and charged not because of prescribing to the patient who died, but because of some sort of suspicion about his own drug abuse (or at least that is what the article seemed to imply, but please correct me if I’m wrong). He was found with Oxycodone on him and they didn’t mention him having a prescription for it, so I’d guess that he may have been dipping into his own stash. They also mentioned that he was going to seek medical treatment in the ER for himself (maybe to obtain more narcs?). That leads me to believe that the police were tipped off that he was using narcs illegally and then decided to also investigate whether he was prescribing legally or if he was getting kick backs or prescribing to known drug abusers.

    I agree with you that you can’t tell from just hearing how many pills he was prescribed whether or not that amount was excessive or dangerous. People’s tolerance to medication differs and those 200 pills could have been based on a smaller number of milligrams with several pills taken for each dose (I myself take smaller, more frequent doses of a muscle relaxant because when I tried to take a larger dose less frequently, I had problems with drowsiness which was a problem giving that I work full-time and am completing a graduate degree). It does seem odd that the patient who ODed saw the doctor so frequently to obtain new prescriptions, but maybe the doctor knew the kid was at a higher-risk of abuse and didn’t want to give him a full 30-day supply of meds at once for fear he’d take them all in a few days or sell them. The second thing that stood out was that the patient was given 200 pills and overdosed just a few days later. To me, that says that the kid wasn’t taking the meds as prescribed and took way too many at once. If the autopsy shows very high levels of these meds in his body in excess of what was prescribed, then the kid made the decision to abuse his meds and that isn’t necessarily the doctor’s fault. However, if the kid OD-ed after taking his meds as prescribed (i.e. the doctor prescribed too high of a dose for a opiate-naive kid) or if the doctor told the kid to take the meds PRN and didn’t educate him about the maximum he could take, which meds should and shouldn’t be taken together, and how to space out his doses, then the doctor should bear some responsibility for his death. Either way, it seems like the doctor failed to take even basic precautions to verify his pain mechanism by looking at imaging studies for his back, doing EMG etc. AND to verify and/or educate about med compliance through the use of a pain contract or urine drug screens. Sure, the kid could have signed the pain contract and then continued to doctor shop but it tends to be these “pill mills” that fail to take even basic precautions and I think they bear more responsibility for the consequences of not doing so than do doctors who make a “good faith effort” to educate their patients and ensure they are taking their medications responsibly. Sorry for writing a book as a comment, but this is an issue that isn’t black or white, even for those of us like me who’ve seen both sides of the equation…

    • This is actually a very good summary of the pros and cons of enforcing criminal actions for prescribing pain medication.
      I agree that good faith is a good litmus test for judging a doctor’s motives, but it still is difficult to draw a line between what is and is not “good faith” in these situations.
      Also, if imaging studies and EMGs are normal, should doctors be prohibited from prescribing more powerful pain medications?

      • I don’t think anyone is arguing that it’s difficult to draw these lines. You got really angry, but it seems most people are saying it’s proper for the police to investigate these things, and it’s proper for the prosecutor to occasionally put these cases before a jury to decide if in fact the law was broken.

  11. Sarah points out two sides to the problem.

    In my own system, if a patient commits suicide there is an automatic extensive and agonizing investigation with the psychiatric care providers’ actions scrutinized (so much for Matt’s continual assumption that physicians are never monitored). This has led to the result that some patients are asked to come extremely frequently, as often in some cases as daily, to get a small amount of meds because the providers are reluctant to prescribe an amount a patient could OD on, even thought the risk is small. (If you want to kill yourself, though, it’s better to take tylenol.) If you start criminalizing actions the results will be that patients in legitimate distress will not get care. It’s a touchy subject. Fortunately the actual instances of a doctor being charged criminally for prescribing pain or psych meds in good faith is small.

    • “so much for Matt’s continual assumption that physicians are never monitored”

      I’ve never said any such thing.

    • This probably explains why all that’s ever prescribed are SSRI’s for depression, while the MAOI’s never leave the pharmacy shelf.

  12. May I suggest everyone take a step back?

    the key line in the essay is:

    “… and the fewer physicians that will want to practice medicine.”

    I’m nearing 50. The fastest retirement at any level is foremost in my mind. No mortgage. No payments. It shouldn’t take much. I’m planning to grow nice tomatoes and enjoy the pigeons.

    Like the good “Dr Galt” in Florida with the (go elsewhere) sign on his door, I say good luck to everyone. I’m sure there will be many equally engaging arguments to be had while sitting on a waiting bench.

    Rest assured the care you’re given will always be called “quality care.” The trick to satisfaction will be not knowing the difference. Enjoy.

  13. WC…
    What do you think of the case in Charlotte, NC where the man goes to the ER and says he is having *homicidal* thoughts. They give him meds and send him home, where he eventually commits murder. Do you think there was negligence, or some failure of protocol?

    • I assume you’re talking about this case.
      Unfortunately, psychiatric cases are quite difficult to manage from the emergency department. If the patient described an elaborate plan to kill his family and was seeking help before he carried out the plan, then yes, there was probably negligence involved.
      On the other hand if the patient was depressed after losing a job, drinking a little, mentioned that his wife was constantly on his case, and said that sometimes he felt like wringing her neck, then denied any intent to hurt her after he sobered up, probably not.
      Cases like this boil down to a false-positive/false-negative issue. Do we err on the side of involuntarily hospitalizing all psychiatric patients to avoid something like this from occurring in the future?

      • I think I would err on the side of a complete eval before letting a patient go that uses the word “Homicidal” no matter what. To me, it seems like not doing that was negligent.

        How many potential psychiatric cases do you treat in the ER, generally? If it’s a small number, don’t you think it WOULD warrant an admit to be sure?

        I have a relative who is bipolar and we never take for granted the words when a manic episode rears its head. Admitted. Every. Time. And unfortunately, the older the patient gets, the more frequent the episodes. I seriously doubt old age is in the cards, sadly.

        Thanks for the reply.

      • “How many potential psychiatric cases do you treat in the ER, generally? If it’s a small number, don’t you think it WOULD warrant an admit to be sure?”

        At my shop, up to 10% of our traffic is psych. And remember that what you are talking about here is a civil commitment against someone’s will. That has a couple of problems. First, beyond the assessment period (24 to 72 hours depending on the state), the hospital has to go to court to prove the need for continued hospitalization. A lawyer assigned as a patient advocate will generally fight this adamantly, so mere statements (unless repeated and serious) are rarely sufficent grounds. Second, hold them to what end? By this I mean psychiatrically treating a patient who does not want treatment is rarely successful. So when does he/she get released? Generally when they learn to stop vocalizing the threatening statements (which doesn’t mean the urges have stopped). This doesn’t stop or prevent the violence, merely delays it. There are precious few long term psychiatric facilities capable of holding patients involuntarily – and the number is shinking daily. And every ED doc can give you example after example of patients who were released that logically shouldn’t have been. (And no Matt, that fact is not related to tort reform, etc. It is from significantly decreasing government funding stemming from the “de-institutionalization” movement started under President Kennedy. So I don’t blame all of medicine’s ills on attorneys. Just most.)

      • It wouldn’t occur to me to suggest that you would treat people differently because of tort “reform”. We both know that has minimal impact on anyone but injured patients.

        I think your comment illustrates what appears to be the fundamental problem – your profession relies far too heavily on the government, rather than the patient for reimbursement. (yes, I know you think it’s malpractice claims, but stay with me) This system exists as a result of only a little fault of your own at this point. There will always be some, and I would guess many psych patients, who don’t have the ability to pay, but instead of government picking up the costs for those who truly NEED it, it’s picking up the costs for everyone, causing those who we truly need to be helping to get less.

      • Wanting to hurt some one is just a thought-feeling. Only if the person-patient is delusional, as in does not know what day it is, can psychiatry legitimately hold a person for having ideas of violence AND not knowing reality.
        To stop people from what they MIGHT do is a pre-crime astrology like judgement as nothing in reality has occured to justify imprisonment.
        We all might be criminals, that is what freedom is.
        If a person doesn’t have the freedom to do wrong, they have no freedom. God gave us a choice to be good or evil, God can’t force worship.
        An exception would be a person vocally making unrelenting death threats who has a criminal history.

  14. Good points, Frydoc.
    Just as often we’re presented with patients who may not be dangerous to others but really cannot care for themselves (it’s not they they choose not to, which is a separate problem, but they are incapable of it due to their schizophrenia or other disorder). A lot of mentally ill people are in this category and often end up homeless, coming in with frostbite, malnutrition and problems relating to their mental disease (I think every institution has had the individual who never throws anything away and ends up being buried when the piles of trash in their apartment reach high enough levels to topple over). These people are very difficult to get committed. I wish the politicians who voted to eliminate state mental institutions could see these folks.

  15. And every ED doc can give you example after example of patients who were released that logically shouldn’t have been. (And no Matt, that fact is not related to tort reform, etc. It is from significantly decreasing government funding stemming from the “de-institutionalization” movement started under President Kennedy

    Too bad the politicians cannot see the fruit of their lame-brained laws. My brother was murdered because of a paranoid schizophrenic who should have been locked up but because of these laws he wasn’t.

    The schizophrenic was causing a disturbance in his home and his mother called the police for help. My brother was one of four officers responding. The mother forgot to mention the little thing this guy had for people in uniform, thought they were angels of Satan coming to kill him.

    So, whose rights trump? The rights of the crazy guy to be “free” or the right of someone to be alive?

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