Ethical Responsibilities of Physicians in the Opioid Crisis

Centers for Disease Control and Prevention, National Center for Health Statistics, “Provisional Counts of Drug Overdose Deaths, as of 8/6/2017,” available at <https://www.cdc.gov/nchs/data/health_policy/monthly-drug-overdose-death-estimates.pdf> (last visited Sept. 6, 2017). See J. Katz , “New Count of 2016 Drug Deaths Shows Accelerated Rate,” New York Times, Sept. 3, 2017, at 14. It should be noted that the data slightly overestimate the number of deaths by substance because some overdose fatalities were the result of multiple drugs; but the data are based on state reports, which have a completeness of reporting of > 90%, and therefore slightly undercount the number of fatalities. It is not known precisely whether the over-counting and under-counting precisely cancel out. See Provisional Counts, supra at 2, Notes on Data Quality.

Centers for Disease Control and Prevention, Prescription Opioid Overdose Data, Dec. 16, 2016, available at <https://www.cdc.gov/drugoverdose/data/overdoes.html> (last visited Sept. 16, 2017).

D. Dowell , T.M. Haegerich , and R. Chou , “CDC Guideline for Prescribing Opioids for Chronic Pain – United States, 2016,” Morbidity and Mortality Weekly Reports Recommendation Reports 65, no. 1 (2016): 1-49.

Centers for Disease Control and Prevention, Annual Surveillance Report of Drug-Related Risks and Outcomes: United States, 2017, at 9 (2017).

B. Han et al. , “Prescription Opioid Use, Misuse, and Use Disorders in U.S. Adults: 2015 National Survey on Drug Use and Health,” Annals of Internal Medicine 167, no. 5 (2017): 293-302.

See generally D.F. Musto , Drugs in America: A Documentary History (New York: New York University Press, 2002).

See A. Case and A. Deaton , “Rising Morbidity and Mortality in Midlife among White Non-Hispanic Americans in the 21st Century,” Proceedings of the National Academy of Sciences USA 112, no. 49 (2015): 15078-15083. See also M. Bible , “Is the US Facing an Epidemic of ‘Deaths of Despair’? These Researchers Say Yes,” The Guardian (March 28, 2017), available at <http://www.theguardian.com/us-news/2017/mar/28/deaths-of-despair-us-jobs-alcohol-suicide> (last visited Sept. 8, 2017).

See A.V. Diez Roux , “Despair as a Cause of Death: More Complex than It First Appears,” American Journal of Public Health 107, no. 10 (2017): 1566-1567; P.C. Erwin , “Despair in the American Heartland? A Focus on Rural Health,” American Journal of Public Health 107, no. 10 (2017): 1533-1534.

CDC, supra note 4, at 10.

See A. Kolodny and T.R. Frieden , “Ten Steps the Federal Government Should Take Now to Reverse the Opioid Addiction Epidemic,” Journal of the American Medical Association (2017), doi: 10.1001/jama.2017.14567.

See M.A. Rothstein , “The Opioid Crisis and the Need for Compassion in Pain Management,” American Journal of Public Health 107, no. 8 (2017): 1253-1254.

See A. Rosenblum et al. , “Opioids and the Treatment of Chronic Pain: Controversies, Current Status, and Future Directions,” Experimental and Clinical Psychopharmacology 16, no. 5 (2009): 405-416.

P. Muhari , J. Gfroerer , and M.C. Davies , “Associations of Nonmedical Pain Reliever Use and Initiation of Heroin Use in the United States,” CHHSQ Data Review 2013, available at <https://www.samhsa.gov/data/sites/default/files/DR006/DR006/nonmedical-pain-reliever-use-2013.htm> (last visited Sept. 22, 2017).

A small number of high-volume prescribers can do significant harm. Medicare’s top 20 OxyContin prescribers in 2010 wrote 17,000 Oxy-Contin prescriptions and more than 56,000 prescriptions for narcotics of all kinds. National Academies of Sciences, Engineering, and Medicine, Pain Management and the Opioid Epidemic: Balancing Societal and Individual Benefits and Risks of Prescription Opioid Use (Washington, DC: National Academies Press 2017): 223 [hereinafter cited as National Academies]. Between 2013 and 2015, opioid manufacturers made payments of $46 million to 68,000 physicians. M. Fox , “Many Doctors Get Goodies from Opioid Makers,” NBCNews.com, Aug. 10, 2017, available at <http://www.nbcnews.com/pages/print> (last visited Sept. 22, 2017).

See A. Van Zee , “The Promotion of OxyContin: Commercial Triumph, Public Health Tragedy,” American Journal of Public Health 99, no. 2 (1999): 221-227.

“Compared with the progressive advancement of medical education surrounding such fields as cardiology and oncology, advances in pain management education are entirely absent or minimally developed — often limited to a few hours of didactic lectures over multiple years of training.” National Academies, supra note 15, at 293. One study demonstrated that physicians who trained at low-ranked medical schools wrote three times as many opioid prescriptions as those who trained at top-tier schools, clearly suggesting that better instruction might have limited the magnitude of the crisis. See C. Siemaszko , “Doctors from Top Medical Schools Prescribe Fewer Opioid Pain-killers,” NBCNews.com, Aug. 15, 2017, available at <http://www.nbcnews.com/pages/print> (last visited Sept. 22, 2017).

K. Thomas and C. Ornstein , “Insurers Putting Cost over Safety with Painkillers,” N.Y. Times, Sept. 18, 2017, at 1.

See B. Levy et al. , “Trends in Opioid Analgesic-Prescribing Rates by Specialty, U.S., 2007-2012,” American Journal of Preventive Medicine 49, no. 3 (2015): 409-413; J.L. McCauley et al. , “Dental Opioid Prescribing and Multiple Opioid Prescriptions among Dental Patients,” Journal of the American Dental Association 147, no. 7 (2016): 537-544.

See A. Edelman , “Pet Connection: Opioid Addicts Score Drugs from the Local Vet,” NBCNews.com, Sept. 2, 2017, available at <https://www.nbc-news.com/pages/print> (last visited Sept. 3, 2017).

21 U.S.C. § 801 et seq.

429 U.S. 589 (1977).

Pub. L. No. 109-60 (2005).

Y. Bao et al. , “Prescription Drug Monitoring Programs Are Associated with Sustained Reductions in Opioid Prescribing by Physicians,” Health Affairs 35, no. 6 (2016): 1045-1051.

H. Wen et al. , “States with Prescription Drug Monitoring Mandates Saw a Reduction in Opioids Prescribed to Medicaid Enrollees,” Health Affairs 36, no. 4 (2017): 733-741.

R. Haffajee , A.B. Jena , and S.G. Weiner , “Mandatory Use of Prescription Drug Monitoring Programs,” Journal of the American Medical Association 313, no. 9 (2015): 891-892, 891. See also R.L. Haffajee , “Preventing Opioid Misuse with Prescription Drug Monitoring Programs: A Framework for Evaluating the Success of State Public Health Laws,” Hastings Law Journal 67, no. 6 (2016): 1621-1694.

Mandatory Use, supra note 26, at 892.

P. Lanser and S. Gesell , “Pain Management: The Fifth Vital Sign,” Healthcare Benchmarks 8, no. 6 (2001): 68-70. The four traditional vital signs are temperature, respiration rate, blood pressure, and pulse rate.

Van Zee, supra note 16.

Centers for Disease Control and Prevention, Guideline for Prescribing Opioids for Chronic Pain (2016), available at <www.cdc.gov/drugoverdose/prescribing/guideline.html> (last visited Sept. 23, 2017). See also D. Dowell , T. Haegerich , and R. Chou , “CDC Guideline for Prescribing Opioids for Chronic Pain – United States, 2016,” Journal of the American Medical Association 315, no. 15 (2016): 1624-1645.

CDC Guideline, supra note 30, provision 1.

K. Kroenke and A. Cheville , “Management of Chronic Pain in the Aftermath of the Opioid Backlash,” Journal of the American Medical Association 317, no. 23 (2017): 2365-2366, 2366.

Often, this takes the form of telling patients that all painkillers must be prescribed by a pain management specialist. As of January 2017, however, there were only 2,300 physicians who were board certified by the American Board of Pain Management, available at <http://abpm.org/faq> (last visited Sept. 28, 2017), and 6,000 members of the American Academy of Pain Management, available at <https://health-finder.gov/FindServices/organizations/organizations.aspx?code=HR3001> (last visited Sept. 28, 2017). Even if a pain management physician can be located, the added delay, burden, and expense compounds the pain and distress of the patient.

See R. Cornish et al. , “Risk of Death During and After Opiate Substitution Treatment in Primary Care: Prospective Observational Study in UK General Practice Research Database,” British Medical Journal 341 (2010: doi: 10.1136/bmj.e5475).

National Academies, supra note 15, at 53.

American Medical Association, Code of Medical Ethics of the American Medical Association 2014-2015 edition, § 10.015, at 409 (Chicago: American Medical Association, 2015).

See F. Brennan , D. Carr , and M. Cousins , “Access to Pain Management – Still Very Much a Human Right,” Pain Medicine 17 (2016): 1785-1789, doi: 10.1093/pm/pnw222.

See S.E. Roskos et al. , “Literacy Demands and Formatting Characteristics of Opioid Contracts in Chronic Nonmalignant Pain Management,” Journal of Pain 8, no. 10 (2007): 753-758 (opioid contracts are frequently written in language that is not understandable by patients). Legally, it is likely that the contracts would be deemed unenforceable adhesion contracts because of the compulsion to sign by the weaker party (i.e., patients). See M. Collen , “Opioid Contracts and Random Drug Testing for People with Chronic Pain – Think Twice,” Journal of Law, Medicine & Ethics 40, no. 4 (2009): 841-845.

Id .

R.M. Arnold , P.K.J. Han , and D. Seltzer , “Opioid Contracts in Chronic Non-malignant Pain Management: Objectives and Uncertainties,” American Journal of Medicine 119, no. 4 (2006): 292-296, 295.

A.B. Rapoport and C.F. Rowley , “Stretching the Scope – Becoming Frontline Addiction-Medicine Providers,” New England Journal of Medicine 377, no. 8 (2017): 705-707, 706.

Merely adopting a strategy of referring patients to pain management specialists will not work because of the large number of individuals with OUD and the small number of specialists. See note 34 supra.

Many physicians and institutions already have dedicated considerable efforts and resources to help in treating OUD in their patients. On a national basis, however, these efforts are not nearly enough to combat addiction.

Rapoport and Rowley, supra note 42, at 706-707.