Chronic Pain, Federal Criminal Law, and the Prosecution of Pain Management Doctors in Federal Court

Earlier this year, the United States Attorney’s Office for the Northern District of Georgia announced that federal prosecutors and federal agents are ramping up criminal investigations and prosecutions of so-called “pill-mills” in metro Atlanta. The statement (which was reported in the Atlanta Journal Constitution) was made during a “summit” on prescription drug abuse held here in Atlanta back in March.

Since that “summit”, federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. Indeed, as recently as last month, federal prosecutors indicted doctors, managers, and owners of “Atlanta Medical Group”, charging these individuals with a number of federal offenses. According to the press release issued in connection with the federal indictment, these individuals operated a “pill-mill”, illegally distributing oxycodone in violation of federal law.

There is no doubt that prescription drug abuse is a serious problem that needs to be addressed. However, it is equally true that chronic pain is also a serious problem in the United States. Indeed, just last week, the New York Times published an article discussing a sweeping review on this issue that was recently released by the Institute of Medicine – the medical branch of the National Academy of Sciences. According to that review, it is “estimated that chronic pain afflicts 116 million Americans, far more than previously believed.” The article goes on to describe that “[t]he toll documented in the report is staggering[,]” leading the chief of pain management at the Stanford School of Medicine (Dr. Sean Mackey) to conclude that number of people suffering from chronic pain “is more than diabetes, heart disease and cancer combined.”

The article goes on to note that “[f]or patients, acknowledgment of the problem from the prestigious Institute of Medicine is a seminal event. Chronic pain often goes untreated because most doctors haven’t been trained to understand it. And it is isolating: Family members and friends may lose patience with the constant complaints of pain sufferers. Doctors tend to throw up their hands, referring patients for psychotherapy or dismissing them as drug seekers trying to get opioids.”

As I mentioned in an earlier post, we have represented a number of doctors in alleged over-prescribing cases, and in those cases, we learned a lot about this unique area of the law. Typically, the federal government prosecutes doctors under the same federal statute that it uses to prosecute cocaine dealers and other alleged drug offenders. In federal cases against doctors, however, the government has to prove that the prescriptions at issue were written “outside the usual course of professional practice and without legitimate medical purpose.” Not surprisingly, the resolution of this important issue often depends upon expert testimony and the experts that the Government uses, quite often, take a very conservative view of what legitimate pain management physicians should be permitted to prescribe. That view, however, is not the only view. As the New York Times article quoted above recognized, the “proper use of the drugs early in a pain cycle can resolve pain problems sooner, and . . . opioids are also particularly useful for pain management near the end of life.”

We will continue to follow developments in this interesting area of federal law. For those of you that may be interested, the full New York Times article can be found here.