Stethoscopes, Handcuffs and Pain

The ties that bind.

When does managing pain become a crime?

And, what can a healthcare provider do to stay out of trouble in these days of the “opioid epidemic”new federal legislation and the criminal prosecution of doctors?

I make a few suggestions here in Pain Management News:

That’s the question many physicians, nurse practitioners (NPs), certified registered nurse anesthetists (CRNAs) and physician assistants (PAs) are asking in the wake of a tidal wave of prosecutions related to pain medicine. This has been partly spurred on by the “opioid epidemic.” There has been a sharp spike in convictions—either by guilty plea or by conviction after a trial—of health care professionals involved in pain medicine.

The facts of each case are different, but the gist of each charge is that health care providers are operating a “pill mill,” where prescriptions are being provided “outside the usual course of medical practice” and “not for a legitimate medical purpose.” There also may be a charge that procedures or tests are not “medically necessary.”

Read the full article here, and our previous notes on related topics:

And my mens rea is unknown, too.

Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct

“In Flanders fields . . . .”
(via Zyance)


Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

We’ll be right with you.

Electronic Medical Records and Federal Criminal Prosecution

Electronic Medical Records and Federal Criminal Prosecution

Bedside manner.

Bedside manner.

Electronic medical records (or “EMR”) were supposed to be a boon to the provision of healthcare.

As two Boston-area physicians point out, EMR are anything but a benefit:

Electronic medical records, or EMRs, were supposed to improve the quality, safety and efficiency of health care, and provide instant access to vital patient information.

Instead, EMRs have become the bane of doctors and nurses everywhere. They are the medical equivalent of texting while driving, sucking the soul out of the practice of medicine while failing to improve care.

Read the whole article: Death By A Thousand Clicks: Leading Boston Doctors Decry Electronic Medical Records

We'll be right with you.

We’ll be right with you.

The additional problem for healthcare professionals is that EMR systems often auto-populate fields from the last patient visit (or even from the first patient visit).  In busy clinical practices, such systems can create technically inaccurate records that do not diminish patient care but, three years later and blown up on a courtroom monitor, can be used by the Government in a criminal prosecution under a “medical necessity” theory under Medicare or a prescription-based “not for a legitimate medical purpose” theory under the Controlled Substances Act.  (A physician may legally “dispense” controlled substances but, if he or she does so without a legitimate medical purpose or not in the usual course of his professional practice, he or she may be criminally prosecuted under the CSA.)

An EMR trial.

An EMR trial.

On the latter point, consider our White Collar Law 360 article:  Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct.

In particular:

Physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.


Tuomey, Stark, FCA and Advice of Counsel

This has been a long saga, even by FCA standards: Judge orders Tuomey to pay $276.8 million for Stark, False Claims Act violations (via

In summary:

A federal judge ordered South Carolina’s Tuomey Healthcare System to pay $276.8 million for violating laws that bar hospitals from paying doctors to refer Medicare patients for treatments.

On Tuesday, U.S. District Judge Margaret Seymour ruled against Tuomey (PDF) on virtually every post-trial issue and granted the government’s request to impose $39.3 million in Stark penalties and another $237.5 million in False Claims Act fines. Seymour also rejected Tuomey’s attempts in legal filings to nullify the verdict.

The damage amount is believed to be the largest of its kind against a community hospital in U.S. history, involving more than 21,000 Medicare claims that a jury said violated the Stark law and the False Claims Act. The claims were worth a total of $39.3 million.

Here’s the post-trial order and opinion.  Note especially the discussion of the jury’s rejection of the advice of counsel defense.  If you retain a lawyer, you have to be careful about terminating the relationship.