When Managing Pain Becomes a Criminal Offense

When Managing Pain Becomes a Criminal Offense: Advice for Health Care Professionals – Pain Medicine News – JUNE 7, 2017 – Jack Sharman

When does your patient care turn into your criminal trial?

That’s the question many physicians, nurse practitioners (NPs), certified registered nurse anesthetists (CRNAs) and physician assistants (PAs) are asking in the wake of a tidal wave of prosecutions related to pain medicine.

This has been partly spurred on by the “opioid epidemic.”

There has been a sharp spike in convictions—either by guilty plea or by conviction after a trial—of health care professionals involved in pain medicine.  

The facts of each case are different, but the gist of each charge is that

  • health care providers are operating a “pill mill,”
  • where prescriptions are being provided “outside the usual course of medical practice” and
  • “not for a legitimate medical purpose.”

There also may be a charge that procedures or tests are not “medically necessary.”

How can you avoid being drowned in the tidal wave?

When you look at a patient, you consider what is the best care for that patient in that particular circumstance.

When federal prosecutors and FBI agents look at you, what are they looking for?

What Prosecutors Look For

It is irrelevant how you see yourself.

What matters is how federal prosecutors, agents and regulators see you.

For a host of educational, cultural and psychological reasons beyond the scope of this article, the vision of government investigators and enforcers in health care will likely differ radically from yours.

A Checklist to Keep You Safe

? Limit patients. As noted above, volume is frequently a red flag for investigators. Do not see more patients in a day than is reasonable and fair.

? Insist on good electronic medical records. Three years from now, you do not want to be in a courtroom trying to defend an entry on a medical record that bears your electronic signature.

? Do not sign prescriptions for the physician. An instruction to not forge a prescription seems obvious, but such things can happen in the hurried day of a large, successful medical practice, even one with the best of intentions.

? Heed your license. If you are licensed by a jurisdiction that allows you to prescribe any medications, including any level of scheduled drugs, be scrupulous about not prescribing outside of or beyond your licensure.

? Don’t use drugs. If you do, seek a leave of absence and get assistance. This instruction, like the forgery advice, seems obvious, yet many NPs and other physician extenders in pain medicine practices find themselves in dependency situations far more often than one would reasonably expect.

? Leave the practice, if necessary. If the practice where you work has a culture of noncompliance and critical-level sloppiness, resign. A job search may not be appetizing, but it is better than prison.

? Get advice. If you feel compelled to report conduct—whether your own or someone else’s—talk with a good lawyer experienced in the field before you do so. Your intentions may be honorable and public spirited, but it is difficult to disengage from the federal criminal justice system machinery after coming forward. As in many other aspects of professional life, prudence is in order.


Author: Jack Sharman is a partner with the law firm of Lightfoot, Franklin & White LLC, in Birmingham, Ala., and chairs the firm’s White Collar Criminal Defense and Corporate Investigations practice. He has represented physicians, nurse practitioners and other health care professionals in matters involving government “pill mill” investigations and other criminal and civil enforcement actions. He can be reached at jsharman@lightfootlaw.com.

2 thoughts on “When Managing Pain Becomes a Criminal Offense

  1. leejcaroll

    Problem for me is most of the docs well meaning but when some go to jail provably in violation of the law, signing scripts written by a nurse etc they clamor about how they were railroaded and falsely found guilty and jailed and then other docs and pain patients take up their cause. We need to be very careful when we go to bat for these docs to make sure we are behind those provablu not guilty vs those who scream the loudest they are despite evidence to the contracy

    Liked by 1 person

  2. Emily Raven

    So basically this could be avoided if you don’t operate a cattle run clinic where you see someone for less than ten minutes unless you’re giving them an epidural. Interesting.

    Liked by 1 person


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