Legal and professional authorities frown on clinicians who try to offer rehab on their own.

Dr. G, 45, worked in an inner city, and some of his patients used illegal drugs. Sympathetic to their situation, he believed that the criminalization of drug addiction discouraged rehabilitation.

To remedy that, he regularly prescribed what heconsidered “transitional medication” to ease the symptoms of withdrawal and to keep his patients off hard drugs. This approach earned him a reputation as a supplier to addicts who misused prescription drugs that they obtained from physicians. Eventually, it brought him to the attention of the drug enforcement authorities, and they sent undercover agents to visit him.

The first agent, a young woman, came to see Dr. G with a (false) complaint of cocaine addiction. She wore a colorful blouse over a tape recorder that provided evidence for the subsequent criminal trial. Dr. G started taking her medical history by asking if there was “anything he needed to know.”

“No, nothing,” she answered.

When Dr. G asked if she had a drug or alcohol problem, she replied: “Well, I do a little bit of this and that.” Asked about medications, she said that the only medication she took was cocaine, which she smoked every day.

That answer did not seem to surprise Dr. G, who asked: “Would you like to get off the cocaine?” Hearing an affirmative reply, he went on: “I am going to start you on Valium [diazepam] to get you off that stuff.”

The agent said that she was hoping for some Demerol [meperidine]. “Does Demerol help you?” Dr. G asked. “Demerols … they kick butt,” the agent replied. “I can really party off those.” Dr. G then performed a physical exam and wrote prescriptions for Valium and Demerol.

About a month later, the agent returned to Dr. G’s clinic, and asked for “a couple more” Demerol and Valium prescriptions. At first Dr. G refused, stating that “she should be getting off that stuff now, on the way to nothing at all.” After some coaxing on the agent’s part, however, he gave her a new prescription for Valium and replaced the Demerol with oxycodone (Percocet).

All this—and a similar story from a second undercover agent—came out during testimony at Dr. G’s criminal trial for “issuing prescriptions of controlled substances without a legitimate medical purpose.” During pretrial hearings, his lawyer repeatedly requested copies of the agents’ medical records, but those motions were ruled irrelevant to the charges.

After hearing the witnesses and listening to the agents’ tapes, a jury found Dr. G guilty as charged. But before the judge could pass sentence, Dr. G’s lawyer appealed the conviction, arguing that Dr. G’s rights had been violated when he was denied access to the agents’ medical records.

The appeals court rejected this argument, reasoning that the records were not relevant and that the agents could present false medical histories to see if the physician would prescribe inappropriately.

Dr. G was sentenced to two years of community service on probation. Ironically, he worked in a drug rehab center for that period, under a conditional restricted medical license. The curbed license was the result of disciplinary action the state licensing board had initiated on its own.

Legal background

Under the U.S. Supreme Court ruling in Brady v. Maryland, a criminal defendant has a right to access any favorable material evidence the prosecution has. In this way, defense lawyers can get evidence to use in their clients’ behalf that otherwise would not be available to them.

As this case demonstrates, however, that evidence must be “material”; that is, it must have a high degree of relevance. The appeals court ruled that the agents’ medical records — which showed complaints of back pain, muscle spasms, and sleeplessness — were not of central relevance to the case and did not warrant overturning the conviction.

Drug enforcement agencies and medical licensing boards work together. They exchange information about physicians in trouble with drugs, either as users or prescribers. An action by one agency can be expected to trigger an action by the other, creating a world of trouble for the lapsed practitioner in these days of heavy-handed law enforcement.

In Dr. G’s case, while bills from his defense attorney piled up, his ability to earn a living through the practice of medicine was curtailed by the licensing board as an “emergency” matter. This left him alone, isolated from the medical community,and soon broke.

Protecting yourself

At one time, substance abuse was treated as mostly a medical problem, but over the past 20 years, there has been a growing trend to criminalize drug dependence. Dr. G may have been trying to help wean his patients from addictive substances by prescribing scheduled medications, but in the modern view, he was simply a “drug provider” with a medical license and subject to the fullest rigors of the law.

Risk management, therefore, has no place for informal drug weaning or rehab programs. Patients should be referred to established drug programs. The clinicians at these programs may prescribe just as Dr. G did, but their actions are sanctioned and controlled by the government as medical activities.

A drug-seeking patient presents the primary-care clinician with a difficult medicolegal problem, prompting such questions as: “Are the patient’s complaints genuine or motivated purely by a desire for addictive medications?” These questions are practically impossible to resolve satisfactorily, so it is best to have a contingency plan ready, such as referrals to a pain clinic or specialist.

 

Dr. Starr is a retired physician and lawyer in the Austin, Tex., area. His legal practice included defending clinicians in malpractice litigation.