Has the Opioid Crisis Resulted in the Unfair Prosecution of Doctors?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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OpioidsDrug policy in the United States has always been haphazard. The drug most often responsible for devastated lives is alcohol, but attempts to ban its consumption ended with the repeal of Prohibition. Drug warriors continue to make specious arguments about the evils of marijuana even as states increasingly legalize its use, a trend that places “states’ rights” advocates at odds with supporters of federal agencies that receive massive amounts of funding to continue a fruitless drug war.

In addition to marijuana, drug policy for years targeted cocaine, focusing largely on crack. While powder cocaine is usually inhaled, crack cocaine is a hardened form of the drug that is manufactured by removing hydrochloride (a non-psychoactive chemical) from powder cocaine, increasing its melting point so that the drug can be smoked in a pipe. The cocaine in crack is therefore a bit more concentrated and smoking allows crack cocaine to reach the brain more quickly, but there is no meaningful chemical difference between the two forms of the drug.

Until recently, Congress mandated substantially harsher penalties for crack cocaine than it applied to comparable amounts of powder cocaine. Since Congress had no rational science-based justification for the differing penalties, many civil libertarians concluded that the law enforcement community wanted to target crack because it was prevalent in poor black communities while powder cocaine was seen as a “party drug” favored by affluent whites.

Opioid Policy

Drug warriors have now set their sights on the opioid crisis. Policy is again influenced by politics, however, since many people who have become addicted to opioids (including military veterans who were wounded in combat) are not within the demographic that police agencies have typically targeted with aggressive drug law enforcement. Some politicians (and law enforcement agencies that crave federal dollars) advocate a return to the failed drug war model to combat opioid addiction, but it seems unlikely that imposing harsh penalties on veterans and car accident victims is likely to gain favor with the politicians who need to balance their “tough on crime” rhetoric against the fear of being viewed as “tough on veterans” or “tough on grandmothers.”

While heroin is an opioid, addiction is much more likely to begin with prescription pain relievers, including oxycodone (marketed as OxyContin) and hydrocodone (one of the ingredients in Vicodin and Lortab). Addicts sometimes turn to heroin when they can no longer feed their addictions through prescribed medications. Law enforcement agencies that perceive doctors as the problem are increasingly using the threat of arrest to deter the prescription of opioids.

Doctors Accused of Overprescribing Opioids

The focus on doctors raises serious policy questions about whether physicians should be second-guessed by law enforcement agencies like the Drug Enforcement Administration (DEA). The DEA’s agenda may be laudable to the extent that the agency is seeking to reduce opioid addiction or overdoses, but prosecuting doctors for prescribing opioids may deter doctors from prescribing medicines that are needed to reduce their patients’ pain.

The ethical question that pain management doctors face is whether it is worse for patients to become addicted to opioids than it is for patients to live with severe pain because they aren’t getting the opioids they need to reduce their pain. Pain management doctors and their patients may legitimately conclude that pain-free addiction is better than constant pain. Both conditions make it difficult to live a normal life. Given the choice, however, many people would choose the perils of addiction over debilitating pain.

Neither police officers nor politicians have the medical training that is required to understand whether a doctor is overprescribing pain medicine to patients who suffer from chronic pain. Most doctors now prescribe opioids as a last resort, after other alternatives have failed. But fear of prosecution may be deterring pain specialists from prescribing opioids even when they are needed.

As one medical journal article noted, “relief from suffering is a primary obligation of physicians,” but “pain remains undertreated.” The development of pain management as a medical specialty was meant to tackle that problem, but physicians who specialize in treating pain now face a risk of criminal investigation and prosecution, simply because they write more opioid prescriptions than other doctors. The crackdown on opioid prescriptions will hurt those doctors, but it will also hurt patients who live with debilitating pain because they cannot find a doctor who is willing to treat them with opioids.

Should the Police Second-Guess a Doctor’s Pain Management Decisions?

One physician who has been caught up in the DEA’s campaign to combat opioid addiction is Dr. Forrest Tennant. Court records show that Dr. Tennant, a former mayor of West Covina, California, is under investigation for allegedly over-prescribing fentanyl and other opioids. Search warrants were served at Dr. Tennant’s home and office and at a Los Angeles pharmacy that was suspected of being part of a “drug trafficking operation” for doing what pharmacies do — filling prescriptions.

Federal investigators alleged that Dr. Tennant accepted more than $100,000 in kickbacks, taking the form of consulting fees and payments for speaking engagements, from the drug manufacturer Insys Therapeutics, which produces a fentanyl-based nasal spray marketed as Subsys. It is not unusual or illegal for doctors to accept payments from drug manufacturers. Dr. Tennant noted that he has been paid for speaking about pain management since 1973 and described allegations that the payments were “kickbacks” as “ludicrous.”

When the warrants were served, Dr. Tennant was 76 years old and only practicing medicine once a week from a small clinic in West Covina. He said he treats 80 patients a month, most of whom are suffering from cancer or other conditions that cause extreme pain.

The DEA suspected Dr. Tennant of participating in a drug trafficking operation because he treated patients who lived outside of California. Dr. Tennant notes that he treats the toughest cases, including out-of-state patients who have not responded to conventional pain treatment, and that he always consults with their local doctors. The DEA also viewed the combinations of drugs that Dr. Tennant prescribed as a “red flag” that signaled the operation of a “pill mill.” Dr. Tennant says his patients have developed a tolerance to conventional doses of pain medications after years of treatment, leading him to prescribe quantities and combinations of drugs that the DEA views with suspicion.

The End of a Career

Dr. Tennant has published more than 200 articles in medical journals and given more than 130 presentations at professional conferences. While suspicious minds at the DEA viewed those credentials as a “cover” for a drug-trafficking enterprise, it is difficult to understand why law enforcement officers with no medical training claim to know more about pain management than a doctor who is recognized as an expert in the field.

Dr. Tennant’s patients describe him as saving them from a life of intractable pain. His peers praise his career, spanning more than a half century, as a pain management expert and as a professor at the UCLA School of Public Health.

After months of investigation, the DEA apparently has not found sufficient evidence to charge Dr. Tennant with a crime. He nevertheless decided to retire and closed his practice this year, reportedly because of ongoing DEA scrutiny. Dr. Tennant told the media that it was “hard to continue operating when they never closed my case, and so I’m going to retire and move on.” He lamented that doctors “can’t do the kind of work I do and operate in legal uncertainty. . . . You’ve got to have legal backing to treat these individuals. And I don’t know what the law is anymore.”

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