Perspective: Doctors to DEA: Know when to back off

April 18, 2008

The issue of prescription drug abuse and its effect on prescribing physicians is once again front and center.

The release last month of the Bush administration's 2008 National Drug Control Strategy was cause for optimism, but only barely.

On the plus side, the use of illicit drugs among young people has declined 24 percent since 2001, when the first such report was released. The steepest drops have occurred in the use of meth, LSD, ecstasy, steroids, marijuana, and other "street" drugs.

But kids, it turns out, are finding drugs closer to home, sometimes in the family medicine chest. According to the report, prescription drug abuse among the young is on the rise, especially the abuse of opioid pain killers. For youngsters 12 or older, in fact, a pain reliever like OxyContin is now vying with marijuana as the "gateway" drug of choice-the one that initiates even more serious drug abuse down the road. The administration has promised to step up its efforts to control the problem, through youth education and random testing but also through aggressive law enforcement efforts, aimed in part at the prescribers themselves.

The op-ed writer is Scott Gottlieb, a practicing internist in Stamford, CT, and a former deputy commissioner of the FDA. After acknowledging the growing prescription drug problem and need for enhanced law enforcement, Gottlieb demands that cops step aside "when it comes to managing legitimate medical practice issues." He continues: "The risk is to return to an era when pain went unrecognized, treated patients were commonly undermedicated, and doctors were reluctant to prescribe powerful narcotics-sometimes out of fear of those looking over their shoulder."

Criminals or sloppy doctors?

Gottlieb's warning isn't simple fear-mongering. Besides going after blatant offenders, the DEA and Department of Justice have also targeted physician prescribers who insist they were acting in good faith.

One such case involves Indiana FPs David and Randall Chube, who were convicted of unlawfully distributing controlled substances from their practice and are now sitting in federal prison, pending their appeal. The Chubes contend that the government gained a criminal conviction against them by successfully questioning their legitimate medical purpose. But the question of medical legitimacy, argues Eli D. Stutsman, their appellate attorney, is not a criminal matter. It's a clinical matter, subject to the civil standard of care. By conflating the two standards, Stutsman says, the government, in effect, put the Chubes in prison for being bad doctors, something the Controlled Substances Act never intended.

Enforcement in this area is tricky, of course, given the small but still unacceptable number of physicians who do sell drugs for money or sex or otherwise run afoul of current law. But those who act in good faith-whose biggest sin is being sloppy or insufficiently vigilant or unwitting dupes-don't fit this category.

Practicing bad medicine may be grounds for a malpractice suit or censure. It shouldn't lead to hard time in the federal pen.