Treating doctors as drug dealers: the drug enforcement administration's war on prescription painkillers.

• Author: Libby, Ronald T.

Untreated pain is a serious problem in the United States. Given the difficulties in measuring a condition that is untreated, estimates of the number of people affected vary, but most experts agree that tens of millions of Americans suffer from undertreated or untreated pain. The Society for Neuroscience, the largest organization of brain researchers, estimates that 100 million Americans suffer from chronic pain (Hall 1999). The American Pain Foundation, a professional organizations of pain specialists, puts the number at 75 million--50 million from serious chronic pain (pain lasting six months or more) and an additional 25 million from acute pain caused by accidents, surgeries, and injuries. The societal costs associated with untreated and undertreated pain are substantial. In addition to the obvious cost of needless suffering, damages include broken marriages, alcoholism, family violence, absenteeism and job loss, depression, and suicide (American Pain Foundation n.d.). The American Pain Society, another professional group, estimates that in 1995, untreated pain cost American business more than $100 billion in medical expenses, lost wages, and other costs, including 50 million workdays (American Pain Foundation 2002, 1) A 2003 article in the Journal of the American Medical Association puts the economic impact of common ailments such as arthritis, back pain, and headache alone at $61.2 billion per year (Stewart et al. 2003).

Chronic pain can be brought on by a wide range of illnesses, including cancer, lower back disorders, rheumatoid arthritis, shingles, postsurgical pain, fibromyalgia, sickle cell anemia, diabetes, HIV/AIDS, migraine and cluster headaches, broken bones, sports injuries, and other trauma.

According to one 1999 survey, just one in four pain patients received treatment adequate to alleviate suffering (American Pain Foundation 2004; see also Wisconsin Medical Society 2004, 16). Another study of children who died from cancer at two Boston hospitals between 1990 and 1997 found that almost 90 percent of them had "substantial suffering in the last month and attempts to control their symptoms were often unsuccessful" (Wolfe et al. 2000, 326). In a formal policy statement issued in 1999, the California Medical Board found "systematic undertreatment of chronic pain," which it attributed to "low priority of pain management in our health care system, incomplete integration of current knowledge into medical education and clinical practice, lack of knowledge among consumers about pain management, exaggerated fears of opioid side effects and addiction, and fear of legal consequences when controlled substances are used" (Hall 1999). The American Medical Association (AMA) stated in a 1997 news release that 40 million Americans suffer from serious headache pain each year, 36 million from backaches, 24 million from muscle pains, and 20 million from neck pain. An additional 13 million suffer from intense, intractable, unrelenting pain not related to cancer. Most of those patients, the AMA warned, receive inadequate care because of barriers to pain treatment. A 2004 survey of the medical literature published in the Annals of Health Law found documented widespread undertreatment of pain among the terminally ill, cancer patients, nursinghome residents, the elderly, and chronic-pain patients, as well as in emergency rooms, postoperative units, and intensive-care units (Dilcher 2004).

One reason chronic pain remains undertreated is that few doctors specialize in the field. Dr. J. David Haddox, the vice president of health affairs at Purdue Pharma L.D., the manufacturer of the long-acting opioid medications OxyContin and MSContin, estimates that only 4,000 to 5,000 doctors who specialize in pain management treat the 30 million chronic pain patients who seek treatment in the United States (personal communication, November 11, 2004)--about one doctor for every 6,000 patients. (1) In Florida, just one percent, or 574, of the state's 56,926 doctors prescribed the vast majority of narcotic drugs paid for by Medicaid in 2003 (Schulte 2003, 1).

The shortage of pain doctors can be explained in part by the relatively new, dynamic nature of pain medicine as well as by many people's aversion to narcotics. Not until the 1980s did physicians who specialized in opioid treatment for the pain associated with terminal cancer begin to advocate the same treatment for nonterminal chronic pain patients (Long 2002, 4). The field's novelty has not only prevented physicians from seeking it out as a specialty, but also caused a great deal of debate initially within the medical community. Although many physicians now approve of opioid therapy for nonterminal chronic pain, some initial resistance arose both inside and outside the medical community. "There's still a fear of opiates," University of California at San Francisco pain expert Allan Basbaum told the San Francisco Chronicle. "The word 'morphine' scares the hell out of people. To many patients, morphine either means death or addiction" (Hall 1999). In an article for Ramifications, a newsletter for pain specialists, Dr. Karsten F. Konnerding of the Richmond Academy of Medicine compares the contemporary practice of pain medicine with the infant field of radiology at the turn of the twentieth century. One London newspaper at that time, Konnerding notes, called radiographs of bones and organs "a revolting indecency" (2002, 1).

Having overcome their reluctance to enter an emerging and not-altogether-accepted field, physicians specializing in pain medicine can find themselves caught in a "damned if you do, damned if you don't" conundrum with some patients. My own study deals primarily with the government's efforts to minimize the overprescribing of painkillers, but several physicians have also been sued for underprescribing, including one California physician who was successfully sued in 2001 for $1.5 million (Rosenthal 2002, 4; see also Bergman v. Eden Medical Center, Alameda County Ct., no. H205732-1 [June 13, 2000]).

Such cases notwithstanding, a significant reason why pain is undertreated--and increasingly so--is the government's decision to prosecute pain doctors who, it says, overprescribc prescription narcotics. According to the federal government, a small group of doctors is prescribing hundreds of millions of dollars worth of such drugs, many of which are finding their way to the black market, contributing to an epidemic of addiction, crime, and death ("OxyContin Special" 2001). (2) Over the past several years, federal and state prosecutors have prosecuted licensed physicians for drug distribution, fraud, manslaughter, and even murder for the deaths of people who misused or overdosed on prescription painkillers. If convicted, those physicians are subject to the same mandatory drug-sentencing guidelines designed to punish conventional drug dealers. These highly publicized indictments and prosecutions have frightened many physicians out of the field of pain management, leaving only a few thousand doctors in the country who are still willing to risk prosecution and ruin in order to treat patients suffering from severe chronic pain. (3) One 1991 study in Wisconsin, for example, found that more than half the doctors surveyed knowingly undertreated pain in their patients out of fear of retaliation from regulators (Weissman et al. 1991, 671). Another 2001 study of California doctors found that 40 percent of primary-care physicians said fear of investigation affected how they treated chronic pain (Potter et al. 2001, 148). In states where state regulatory bodies aggressively monitor physicians' prescriptions of narcotics, doctors are even more reticent to treat pain adequately (Brushwood 2003, 41 and n. 13).

"The medical ambiguity is being turned into allegations of criminal behavior," Dr. Russell K. Portenoy told the Washington Post. Portenoy is a pain specialist at Beth Israel Medical Center in New York and is considered one of the fathers of opioid pain therapy. "We have to draw a line in the sand here, or else the treatment will be lost, and millions of patients will suffer" (qtd. in Kaufman 2003b).

A Brief History of Painkillers and the Law

From the 1880s until about 1920, narcotics were unregulated and widely available in the United States (Musto 1999, 1-23). Drug addiction was largely accidental, owing to the public's ignorance of the habit-forming properties of morphine, the most popular highly addictive drug of the era. Though widely used for medical operations and convalescence, morphine was also used in everyday potions and elixirs. The drug was commonly regarded as a universal panacea, used to treat as many as fifty-four diseases, including insanity, diarrhea, dysentery, menstrual and menopausal pain, and nymphomania. (4) Opiates were as readily available in drug stores and grocery stores as aspirin, serving many of the same functions that alcohol, tranquilizers, and antidepressants serve today. That perception changed during the Progressive Era, when the government criminalized the common use of opium (Musto 1989; Hohenstein 2001).

The first federal law to criminalize the nonmedical use of drugs was the Harrison Narcotics Act of 1914 (Public Law 223, 63rd Cong., 3rd sess., December 17), which outlawed the nonmedical use of opium, morphine, and cocaine. The law was supported by advocates of Prohibition (Sterling 2000; Levine 2002, 3).

Section 2 of the Harrison Act made it illegal for any physician or druggist to prescribe narcotics to an addict, effectively turning one-quarter of a million drug addicted citizens and their doctors into criminals (Musto 1999, 181-82; Hohenstein 2001, 253). By 1916, 124,000 physicians; 47,000 druggists; 37,000 dentists; 11,000 veterinarians; and 1,600 manufacturers, wholesalers, and importers had registered with the Treasury Department, as required by the Harrison Act (Musto 1999, 121). Hundreds of doctors were arrested almost as...