Early in my career, I handled a case before the Board of Registration for the Healing Arts, the licensing agency for physicians in Missouri. The case is reported in the law books so I am not revealing any client confidences.
The board filed a complaint alleging that our client had pleaded guilty to a two-count indictment charging her with selling controlled substances, a felony. The board contended that her license was subject to suspension or revocation. The doctor answered the complaint and admitted that she had entered a plea of guilty on three charges of unlawfully prescribing controlled substances, but that her pleas were “Alford pleas” and therefore she had not actually pleaded guilty to a felony. In an “Alford plea,” the defendant admits that the evidence the prosecution has would be likely to persuade a judge or jury to find the defendant guilty beyond a reasonable doubt, but allows the defendant to still contend she is innocent.
The Board of Registration suspended the doctor’s license to practice medicine for one year and then placed her on probation for 10 years with the restrictions that she could not prescribe narcotics and she could not deliver babies. She delivered babies in the mother’s home and her services were sought by parents seeking non-traditional birthing. The issues on appeal were that since she had entered an Alford plea she had not entered a guilty plea as required by the licensing statute and therefore her license was not subject to suspension. We also argued that the board lacked authority to restrict her license from practicing obstetrics after her one year suspension was concluded.
We contended that the true motivation of the board was to keep her from delivering babies. The Court of Appeals ruled against us and the doctor’s license was suspended and restricted. It was my first appellate argument and I remember one of the appellate judges asking me why my partner had not handled the criminal case differently. Essentially, he was asking me to criticize my partner which I thought was very unfair. I ducked the question by telling him that I was not sure why he did not handle the criminal case differently. He didn’t like my answer and I did not like his question, so I guess we were even, but he ruled against us so I suppose he had the final word.
This case came to mind as I considered the opioid crisis that we are facing in the United States. The doctor in our case was accused of improperly prescribing narcotic medications. At that time, in the early 1980s, we were in the early stages of a crisis, but law enforcement and licensing authorities were keenly aware of the danger. The dangers now have reached the stage of crisis, but the politicians in Missouri have been a little slow to react.
Missouri owns the dubious distinction of being the only state that does not have a program to monitor opioid use. In other states, physicians can access and track use of narcotics by their patients to prevent doctor shopping. Legislators in Missouri have blocked legislation for a variety of reasons. The most frequent excuse is that it invades privacy. I guess an opioid abuser has the right to abuse drugs in private. One of the most vocal opponents of the drug monitoring program is a physician-legislator from St. Joseph.
According to the Centers for Disease Control and Prevention, approximately 35 percent of people prescribed a month’s supply of painkillers become hooked for at least a year. Heroin is becoming more popular because it is more accessible on the street and it is cheaper. For every five new heroin users, four of them started with prescription opioids. Apparently, Governor Greitens is in favor of stronger opioid regulation as he had a relative killed by heroin. The governor signed an executive order on Monday directing the Missouri Department of Health and Senior Services to create a prescription drug monitoring program. The governor’s order does not provide physician access to the monitoring program and there are some who question the governor’s power to handle this issue by executive order. The simple solution is to pass legislation. The governor likes special sessions so it would seem appropriate to handle a crisis in a special session if the governor wants to handle the problem like every other state.
Senator Claire McCaskill has recently demanded information from five top opioid manufacturers as she has started an investigation into their alleged role in the drug epidemic. She says that the “epidemic is the direct result of a calculated sales and marketing strategy major opioid manufacturers have allegedly pursued over the past 20 years to expand their market share and increase dependency on powerful – and often deadly – painkillers.”
Many factors led to the current crisis. The prestigious New England Journal of Medicine has only recently acknowledged that a five-sentence letter in the journal in 1980 was “heavily and uncritically cited as evidence that addiction was rare with long-term opioid therapy.” In 2007, the manufacturer of OxyContin and three senior executives pleaded guilty to federal criminal charges that they misled regulators, doctors, and patients about the risk of addiction associated with the drug. The Journal admitted in June of this year that it believes that “this citation pattern (from the 1980 letter) contributed to the North America opioid crisis by helping shape the narrative that allayed prescriber’s concerns about the risk of addiction with long-term opioid therapy.”
My experience with a physician who was convicted of improperly prescribing narcotic medications came shortly after the New England Journal letter was issued that claimed addiction was rare with long-term opioid therapy. Now, 37 years later, we are in the middle of a crisis and some politicians either don’t care or have their heads buried where the sun does not shine.
How many more people must die before aggressive action is taken?
-- Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org