AS DEATHS MOUNT – SUPREME COURT RULING PREMISED ON LIES PROTECTS INTENTIONAL AND RECKLESS OPIOID MISPRESCRIBING
The Court’s rebuttable presumption of good faith defense is grounded in demonstrable lies and gifts immunity for American Medicine’s continuing, lethal opioid misprescribing
by Clark Miller
Published November 27, 2022
As explained by one legal analyst ahead of a U.S. Supreme Court ruling that would be overshadowed by the Roe v. Wade decision, now more clearly in hindsight the decision in Ruan v. United States creates the potential to enable, empower and magnify lethality of medical practices that have driven America’s opioid crisis over past decades.
Xiulu Ruan, MD, practiced medicine as a board‐certified pain specialist in Alabama, and was indicted in 2016 for unlawful distribution of opioids. The jury in the trial court convicted Ruan and other physicians in his practice based on a ruling that did not allow doctors to claim a defense of “good‐faith” where they honestly prescribed opioids under the belief that it was the right thing to do medically. Once the case reached the Eleventh Circuit on appeal, Ruan was essentially doomed, as that federal appellate circuit does not recognize a good-faith defense in cases such as this. He lost and appealed to the Supreme Court on a writ of certiorari, a court process to seek judicial review of a decision from a lower court”
. . . The argument of the doctors involved in the case was that the Supreme Court should look at the good faith of the doctors prescribing opioids. In a situation where a doctor genuinely believes that writing an opioid prescription falls within their normal course of practice, that this should not be viewed as a criminal act and they shouldn’t be convicted of unlawful distribution under the Controlled Substances Act.”
. . . The importance of this case and the underlying issue — the opioid crisis — cannot be overstated. A recent position paper by the American Medical Association made it clear that the nation’s opioid and drug overdose epidemic continues to worsen with metrics far beyond earlier projections. The ruling in this case could impact its trajectory.
The problem, of course, with the good faith argument is that absent the possibility of retrieving some form of record of the internal thought processes – the stream of consciousness – of individual prescribers influencing their choices to and how to prescribe opioids to their patients, there is no objective evidence to rebut the presumption of good faith when the prescriber, under oath, utters the magic words the Supreme Court would empower them with as a shield against accountability for intentional and dangerous misprescribing of opioids:“Yes I believed I was safely prescribing effective medication and in the best interests of my patients, to the best of my knowledge and medical training.”
Right. The Supreme Court would proceed to hold in Ruan that the “good faith” assertion is a defense, based on a presumption by the court that America’s prescribing medical professionals are, with rare exceptions, prescribing in that way. Doctors facing charges for misprescibing and their attorneys wasted no time in acting on the good news.
Back to the MEDPAGETODAY piece –
The argument of the doctors involved in the case was that the Supreme Court should look at the good faith of the doctors prescribing opioids . . .
Of course, lacking that retrievable stream of consciousness record, or admissible evidence of statements of the prescriber of knowing, intentional misprescribing, there is no way for any court or prosecutor to “look at the good faith of the doctors prescribing opioids” in any particular case. The Supreme Court, decades into an increasingly lethal opioid epidemic, has gifted immunity to the prescribers, the only gatekeepers for those addictive, Schedule II substances that generated the crisis.
But we can look, because there is objective evidence,
damning evidence and lots of it.
Again from the MEDPAGETODAY report –
While both the Alabama Federal Court jury and the Eleventh Circuit convicted Ruan for violating provisions of the Controlled Substances Act, among other laws, the larger question goes far beyond the wrongdoing of any doctor who may have been motivated to prescribe opioids for financial gain.
Simply put, a doctor’s ability to practice medicine properly would be limited by an inability to make judgment calls. If doctors fear huge penalties for honest mistakes, they will err on the side of not treating. So, if the Court’s ruling sets forth an overly restrictive policy aimed at the small number of physicians motivated by their own self-interest, it may be patients in pain who suffer in the long run.
What we know, because it is established by multiple lines of longstanding evidence, is that misprescription of opioids generating and perpetuating the increasingly lethal epidemic is not attributable to a small number of outlier “pill mill” prescribers – it’s about generalized, incompetent, and reckless misprescribing by America’s licensed medical providers. That, after all, is what generated the crisis, prescription of opioids for all forms of pain, in the context of longstanding, widely available evidence against that practice that would have been part of any legitimate medical training.
As if those licensed medical providers, over the course of an American medical education, would not have necessarily become aware of the evidence and their clinical and ethical obligations to practice accordingly, based on the longstanding indications against the runaway provision of those Schedule II opioids: the potential for hyperalgesia; the addictive potential of opioids; the lack of evidence for effectiveness; the psychogenic nature of common chronic pain; and the effective, durable, indicated use of cognitive behavioral therapy (CBT) for common chronic pain.
In the face of that longstanding evidence could it ever have been in good faith medical practice to be persuaded to deviate from safe prescribing as advised by pill salesmen?
And the “small number of physicians motivated by their own self-interest”?
Thousands of doctors accross the country
is not a small number. Thousands prescribing opioids driven by motivators entirely different than the good faith medical care of their patients. Especially in light of new revelations for the Medicaid population –
The importance and potential harm of noncompliance with Medical practice and ethical standards over decades of the persistently worsening crisis is reinforced by new evidence that estimates of potential for development of compulsive high-risk opioid use (“dependence”) – persistently asserted to be no more than about 8 percent of newly-prescribed opioid users – appears to have been much higher in the U.S. Medicaid population, from this report at MedCity News.
Is it good faith medical practice
to continue to prescribe opioid and other medications with potentially high risk for harm by prescribers believing they were missing signs of drug abuse in their patients, and continuing to prescribe?
67 percent of a representative sample of primary care physicians is not a “small number” or outlier pill mill doctors. It is American Medicine at practice –
A fundamentally relevant and troubling body of evidence illustrates the real concerns about the clinical practices of American Medicine In a the study, surveyed medical doctors reported they were confident in their ability to detect misuse of substances, yet 50 percent of samples indicated misuse.
Telehealth offered numerous benefits to patients during the COVID-19 pandemic, providing access to care when in-person visits weren’t safe or feasible for many. But a new report shows providers worry that virtual visits allowed signs of drug abuse to slip by unnoticed.
In a report from Quest Diagnostics released Monday, 67% of the over 500 primary care physicians surveyed said they fear they missed signs of drug abuse in their patients during the pandemic.
And nearly all of them were prescribing those often-misused drugs—a whopping 97% reported prescribing opioids within 6 months of taking the survey.
Their concerns extend beyond the pandemic into telemedicine use today. Only 50% of physicians said they were confident they could recognize signs of drug misuse during telehealth visits, a far cry from the 91% that said the same of in-person patient interactions.
. . .
But Quest’s data indicates that just because a physician thinks they can spot patient signs of drug misuse doesn’t always mean they do.
While 88% of the physicians reported feeling confident they could identify patients at risk for drug abuse, nearly half of all patients tested by Quest in 2020 showed signs of drug abuse.
Here’s the report these interpretations were based on, analyzing “nearly 5 million de-identified aggregated Quest Diagnostics test results, including over 475,000 from 2020 alone, with a survey from the Harris Poll of more than 500 primary care physicians”.
SECAUCUS, N.J., Nov. 15, 2021 /PRNewswire/ — A new Health Trends® report from Quest Diagnostics (NYSE: DGX) finds that almost 70% of physicians fear they missed signs of drug misuse during the pandemic, and, given how the global health crisis disrupted medical care, anticipate rising overdose deaths – especially those involving prescribed and non-prescribed (illicit) fentanyl – even as the pandemic subsides.
By combining an analysis of nearly 5 million de-identified aggregated Quest Diagnostics test results, including over 475,000 from 2020 alone, with a survey from the Harris Poll of more than 500 primary care physicians, “Drug Misuse in America 2021: Physician Perspectives and Diagnostic Insights on the Drug Crisis and COVID-19,” provides a unique snapshot of prescription and illicit drug misuse in the United States during the COVID-19 pandemic. The Partnership to End Addiction was an advisor to the report’s development.*
The new report comes on the heels of the approximately 96,779 drug overdose deaths between March 2020 and March 2021, as reported by the Centers for Disease Control and Prevention (CDC).i It also builds on prior Health Trends research, including a 2019 report that examined physician attitudes on drug misuse and a 2020 report that showed positivity increased by 35% for non-prescribed fentanyl and 44% for heroin among tested individuals during the early months of the pandemic.ii
Let’s summarize these studies, so we don’t miss the points.
– Doctors prescribing commonly misused and potentially lethal drugs (two thirds of prescribers surveyed) believed they were missing signs of misuse over months of COVID pandemic relaxed prescribing controls that were initiated for patient safety, allowing prescription based on video or even telephonic contact, even for an initial visit and prescription.
– And they continued, knowingly prescribing.
– Even for doctors (about 90 percent) who believed that under improved clinical conditions they were not missing signs of potentially dangerous abuse, patient samples indicated misuse in “nearly half of all patients”.
– Over the same period, doctors who could have used objective evidence to protect against potentially lethal error in their impressions by using the PDMP databases, were not using them to control prescribing.
And? Institutional, doctor, medical, and other groups are lobbying hard to protect their ability to continue to use telemedicine and telephone prescribing post-pandemic.
The Supreme Court’s establishment of presumption of good faith as defense in Ruan is grounded in lies, cover stories and fabrications that have enabled and empowered lethal misprescribing through decades of the epidemic, despite warning signs and reports from the beginning.
Reports from the beginning from the doctors themselves,
talking to authors like Chris McGreal, writer of American Overdose, and Sam Quinones, whose unflinchingly “True Tale” in Dreamland described the institutional and professional pressures on doctors to over-prescribed opioids.
(from American Overdose pp 88 – 89)
The case was dropped, but it was not an isolated incident. Luca has worked closely with another surgeon, Anna Ledgerwood, since 1972. She too was hauled before the ethics committee on more than one occasion on the same charge. One of the investigations, for alleged inadequate pain management after a hernia operation, went all the way up to the state medical board. It cleared Ledgerwood, but Lucas said more junior surgeons buckled to the pressure to administer opioids just to stay out of trouble. “If they will give me a hard time, then they will surely give a young resident a harder time,” he said. “I tend to be a fighter. That’s my nature. But somebody who just wants to take care of patients, they want to be a professional physician, they don’t want to put up with all this crap; they’re intimidated. They’re also frustrated by it. The medical community knows that too many pain medicines are being written. Doctors talk about it among themselves. They’re not in a position to challenge the system. But they know.”
Lucas regarded the new pain orthodoxy as a growing tyranny, and he thought it was killing patients.
Quinones spilled the truth, more directly, as part of a cover story in the LA Times, when he noted, simply, that doctors told him they misprescribed the addictive opioids – Schedule II Controlled Substances – knowing it was medically not indicated.
Again, from Chris McGreal’s “American Overdose” –
“The medical community knows that too many pain medicines are being written. Doctors talk about it among themselves. They’re not in a position to challenge the system. But they know.”
Lucas regarded the new pain orthodoxy as a growing tyranny, and he thought it was killing patients.
“The medical community” –
That’s generalized, a description of American medical practice, by individual licensed medical professionals.
“They’re not in a position to challenge the system. But they know.”
That’s right, they had to know – they were misprescribing, and not willing to stand up against expectations of them to put their patients at risk of harm, to stand up to protect the safety of their patients at risk to their medical careers.
Is it good faith medical practice to knowingly misprescribe dangerous substances out of cowardice?
Is it good faith medical practice
to disregard direct, pharmacy-generated warnings based on patient prescription records of dangerous opioid prescribing that is not in question, for example the high-risk prescription of a benzodiazepine with an opioid? That combination that has been commonly used by MAT patients and others in the longstanding, pervasive illicit economies and lethal misuse of doctor-prescribed MAT opioids like Suboxone and methadone? The combination that makes life-saving revival with naloxone less predictably life-saving? What about direct warnings to LMP prescribers from pharmacists when that combination is identified?
Email alerts to practitioners from pharmacists did not reduce concurrent prescribing of opioids and benzodiazepines, a randomized trial showed.
That’s not about pill mill doctors or a small number of outlier prescribers. It’s about American medical practice.
The Supreme Court decision protective of American Medicine’s incompetent and criminally negligent perpetuation of the opioid crisis significantly bolsters protections afforded by America’s medical-media collusion, empowering continuing overprescribing and misprespcribing of opioids driving the lethal epidemic.
