Recently, LA saw this problem emerge in microcosm when Senior U.S. District Judge Manuel Real - who is known to be somewhat "unpredictable" - surprised a lot of people and gave only a four year sentence to a doctor who plead guilty to a charge serious enough for the sentencing guidelines to recommend a term of 17 to 22 years: intentionally distributing oxycodone without a legitimate medical purpose. The remaining 16 counts against him were dropped in exchange for the plea. See, 4-year prison term ordered for 'drug-dealing doctor,' Los Angeles Times, April 15, 2010 http://www.latimes.com/news/local/la...,2146647.story

The doctor in question let things get a little out of hand, to put it mildly:

Healy, according to prosecutors, led the nation in 2008 in ordering hydrocodone -- painkillers sold under the brand names Vicodin and Norco. They accused Healy of wildly overprescribing and selling the drug, for which there is a thriving black market, particularly among young adults. Some of Healy's patients were in their late teens and early 20s and had been friends of Healy's sons.

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One man who was observed by police entering Healy's clinic before it opened for the day was pulled over a short time later and had 12 commercial-size bottles of Vicodin and three containers of Xanax in his car -- 7,500 pills in all. The man told police he'd just paid Healy more than $5,000 cash for the drugs, and was planning to sell them for profit, according to court records

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Sandy Banks, a columnist of the LA Times, ran two subsequent pieces on the story. The first expressed populist anger at the relatively low sentence. Peddling prescriptions like candy, Los Angeles Times, April 19, 2010 http://www.latimes.com/news/local/la...48,full.column The second piece, run a few days later, attempted to tell the other side of the story: the chilling effect this would have on the legitimate use of pain medications. Doctors’ second opinion, Los Angeles Times, April 25, 2010 http://www.latimes.com/news/local/la...6414204.column But it was a probably well-meaning statement of “Medical attorney Alan I. Kaplan” in the second column, that I found the most disturbing of all:

Kaplan said there are safeguards doctors can employ to insulate themselves and protect their patients.

"Be skeptical," he advised. Take a detailed history, try less-potent painkillers first, solicit a second opinion, require urine tests. Track patients in the state's database, use contracts that require patients to commit to using only one doctor and pharmacy and listen to family members' concerns and complaints.

Bottom line, the DEA has succeeded in imposing requirements on physicians that appear nowhere to my knowledge in any statute of the United States or agency rule promulgated under the safeguards of the Administrative Procedures Act. Furthermore, in creating a standard that the physician “and listen to family members' concerns and complaints,” they open the door to the very real risk of threats and intimidation of doctors by overbearing family members, one egregious incidence of which happened to a close friend. Furthermore, in “listening” to these complaints, if the doctor is to remain anything but infuriatingly silent, the patient’s privacy rights under HIPPA are all but thrown out the window.

Bottom line, if the government wants these requirements to be in place, it has mechanisms available for legally doing so. But to make their implementation a quid pro quo for physicians to avoid criminal prosecutions can easily be seen as a naked power grab that should be strongly questioned as an apparent violation of due process of law.

Mike