Insight

The Proverbial Rock and Hard Place

The physician's opioid prescribing dilemma.

Opioid Prescribing Dilemma
Sarah E. Coyne

Sarah E. Coyne

December 19, 2017 12:25 PM

Physicians (and other prescribers) face a dilemma. Physicians are at least encouraged, and at times required, to evaluate pain and take steps to address it. Prescribing opioids has been a necessary part of the standard of care in addressing pain. There are certainly patients who legitimately cannot find relief any other way. However, the obligation to treat patients and address their pain is fundamentally inconsistent with the increasing pressure on physicians not to cause, facilitate, or tolerate patient opioid abuse.

There is no question that opioid addiction and abuse is a serious threat. Physicians take that seriously. For example, it is now typical for prescribing physicians to require and enforce pain contracts with patients, to monitor patients obtaining prescriptions from multiple providers by state-run tracking databases, and to implement policies that no opioids will be prescribed absent extraordinary circumstances.

The competing requirements to treat pain effectively and to manage the risk of opioid abuse put physicians at a crossroads, with regard to liability. On one hand, patients whose pain is not appropriately managed can bring claims, and both payors and regulators can hold physicians accountable and liable in this circumstance. On the other hand, physicians are subject to significant regulatory parameters from federal and state government as well as many other stakeholders in the health care industry for over-prescribing or negligent prescribing.

State licensing boards are one of the most significant sources of enforcement against physicians for opioid prescribing practices. State boards vary widely in their reputation for such enforcement, but there has been an upward trajectory of regulation of opioid prescribing in most states, with clearer guidelines and more significant consequences. Many believe that state boards do not go far enough, and while that may be true, it is vital to recognize the constellation of factors that a physician must balance in making prescribing decisions.

Physicians invite scrutiny from state boards in a myriad of ways, including failure to fully evaluate the need for pain medication, failing to implement or enforce pain contracts, failing to monitor available databases to determine if a patient is obtaining duplicate prescriptions from other providers, believing patient excuses for needing more or early refills, or failing to detect that a patient is likely selling the opioids rather than taking them as prescribed.

Many of these failures come down to a physician’s decision to trust what their patient is telling them.

Physicians are faulted for not detecting that a patient has misrepresented the circumstances, therefore prescribing to a patient who was abusing the medication. Suspecting one’s patient of malingering or outright lying is a skill that physicians develop over time, but it is not a standard part of the traditional physician-patient relationship. While it is difficult to explain this to a licensing board in any given case, determining a patient’s truthfulness is a largely subjective and imprecise process to manage.

Physicians who have been scrutinized or who have observed colleagues be scrutinized by state medical boards may tend to under-prescribe as a protective mechanism, a manifestation of so-called “defensive medicine.” Various physician organizations have warned against the potential consequences of refusal to prescribe opioids to patients who need them based on fear of licensing disciplinary actions.

When a state regulatory investigation is launched against physicians for over-prescribing, there is an increasing trend of simply resigning their DEA registration and their license to prescribe narcotics rather than proceed with the investigation and face reputational and financial damage.

Certainly, controls on prescribing in the interest of patient safety is crucial and a fundamental skill that should be exercised by all prescribers. State licensing boards investigating opioid prescribing issues should also take into account the other pieces of the puzzle, including the physician’s obligation to address pain, the subjective nature of evaluating pain, and patient truthfulness.

What is the solution here? There have been steps in the right direction. Oversight agencies have promulgated guidelines and rules to govern appropriate prescribing and associate patient safety practices. Physicians are obtaining education about identifying patients attempting to manipulate the system and abuse opioids. Awareness has increased exponentially in the medical community. Nevertheless, all of the issues identified here create a dichotomy of pressure that puts physicians (and other prescribers) in a very difficult position. The tug of war between accommodating patient needs and mitigating opioid abuse and over-prescribing is real and should be recognized by state licensing boards in their enforcement activities.

Related Articles

When Medical Malpractice Defendants Are Better Able To Cope, Lawyers Are Better Able To Do Their Jobs


by Gail Fiore

Lawyers face heavy challenges when dealing with difficult medical malpractice defendants. The Winning Focus, LLC, founded by Gail Fiore, offers coaching and support to defendants feeling the burden of difficult courtroom battles.

Guidance for Medical Malpractice Defendants

Proposed Rules Could Change Medication Options for Injured Workers in North Carolina


by David E. Vtipil

Injured workers in North Carolina would be limited in the amounts of opioids that they could be prescribed under proposed Commission rules.

NC Injured Workers Medication Options Change

The Workers’ Compensation System as a Prescription for Addiction


by Karen Gail Treece

While estimates vary, it is believed that the top 5 percent of opioid users likely account for more than half of total opioid use.

Prescription for Addiction

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Unwrapping Shrinkflation


by Justin Smulison

Through the lens of the United States, we take a closer look at the global implication of companies downsizing products while maintaining and often raising prices.

Chocolate bar being unwrapped from foil