One of the most significant legal issues facing the health care industry today is not a specific case or statute but rather an ongoing “perfect storm” that will affect nearly every company in various ways. This onslaught includes several sweeping new requirements and restrictions imposed by numerous federal and state statutes, regulations, and court opinions. That perfect storm is the opioid crisis and litigation that is resulting from it.
The opioid crisis and the corresponding legal and political response will affect health care in many ways. One of the groups that will be most affected is chronic pain sufferers who rely on the services of pain management physicians to make their lives manageable.
Attorney Ken Julian of Manatt, Phelps & Phillips LLP, who is widely acknowledged as one of California’s leading white-collar criminal defense litigators and an authority on health care, believes that the opioid crisis and resulting litigation will have a chilling effect on physicians who will be afraid to prescribe opioids at all, much less high doses. In Mr. Julian’s words, “As a result, the relative ease with which chronic pain patients could secure prescriptions for opioids as recently as a few years ago will disappear.”
This will leave many of these patients in agony and unable to find any relief. Moreover, since they won’t be able to procure prescriptions for opioids, many of them will turn to the black market and illegal drugs such as heroin and fentanyl, which carry a high risk of overdose and death.
Julian also believes that the opioid crisis will also prompt insurers to place more significant restrictions on the use of opioids, making it more difficult for patients who need them as a result of surgery or chronic pain to obtain treatment. Many, if not most, insurers already impose strict limits on opioid prescriptions and monitor doctor shopping very closely.
In states that have enacted Good Samaritan laws, physicians are protected from civil liability when prescribing opioids to patients in good faith, even if the doctor’s treatment fails. However, Julian believes that “the immunity provided by Good Samaritan laws will be of little solace because doctors may fear that their efforts could expose them to criminal prosecution.”
Julian also notes that the opioid crisis is not likely to go away any time soon and will only intensify. “The federal government is expected to make recommendations for new prescribing guidelines in the very near future,” Julian predicts.
In addition, many state governments are passing laws creating more stringent restrictions on opioid prescription practices that may narrow the scope of a doctor’s discretion in prescribing certain controlled substances or result in more involvement from board-certified pain management physicians to reduce physician shopping and drug diversion. In the latter instance, pharmacies will be required to report any prescriptions that exceed a certain threshold value of controlled substances.
There has been some question about whether further governmental regulation of opioid prescribing is necessary or appropriate government intrusion into what is essentially a matter between a doctor and a patient. There is no question that opioid abuse presents real problems, and there are people who need help. However, it is essential to remember that most individuals who seek treatment for chronic pain from their physicians do not become addicts.
In addition, it should be kept in mind that the current crisis was created by “pill mills” and unscrupulous doctors who were willing to operate outside of the law to make money by providing vast numbers of prescriptions for opioids.
It is indisputable that many people have become addicted to opioids due to being prescribed high-dose pain meds after surgery or an injury. However, most individuals can taper off when they no longer need them without becoming addicts.
The current opioid crisis revolves primarily around illicit drugs such as heroin and fentanyl, which are powerful, addictive, dangerous, and deadly. While there is no question that people who become addicted to pain medication prescribed by their doctors find it extremely difficult or impossible to stop taking the opioids without incurring excruciating withdrawal symptoms, those who become addicted to heroin and fentanyl have no such difficulty.