Overprescribing: Mistake, Malpractice, or Murder?

The Los Angeles District Attorney is prosecuting a doctor for second degree murder in the deaths of three of her patients.  Hsui-Ying “Lisa” Tseng, D.O. faces a total of 24 felony counts, including three second degree murder charges resulting from her alleged habitual practice of overprescribing drugs, often without the required complete physical examination.  In her June 2012 preliminary hearing, Dr. Tseng was accused of writing 27,000 prescriptions in three years for drugs including Xanax, oxycodone, methadone, and Soma.
The preliminary hearing consisted of testimony from more than forty witnesses including law enforcement personnel, the Los Angeles County Coroner’s office, Dr. Tseng’s former staff members, experts, as well as former patients and their family members. There was testimony regarding a total of twelve of Dr. Tseng’s patients who died of overdoses as well as a story of a patient who received a prescription for opium and proceeded to immediately overdose in Dr. Tseng’s office bathroom, an incident specifically cited by Los Angeles Superior Court Judge M.L. Villar de Longoria in her decision to hold Dr. Tseng over for trial.[i]
Whatever the outcome of Dr. Tseng’s case, the circumstances are undeniably tragic.  The larger tragedy, however, is that they are becoming increasingly common at an almost incomprehensible pace.  The deaths of Heath Ledger, Anna Nicole Smith, and Michael Jackson among others have put a very high profile face on prescription drug abuse and most of us probably have a friend, family member, or acquaintance who has struggled with it as well.  Even given our awareness of the issue, the hard numbers are staggering.  According to the US Department of Health and Human Services Center for Behavioral Health Statistics and Quality’s Drug Abuse Warning Network, 2009: National Estimates of Drug-Related Emergency Department Visits[ii] emergency room visits involving the non-medical use of pharmaceuticals rose from 536, 247 in 2004 to 1,079,683 in 2009.  According to the Substance Abuse and Mental Health Administration’s Results from the 2009 National Survey on Drug Use and Health[iii], found the following:

In 2009, prescription drugs were the second-most abused category of drugs in the United States, following marijuana.9 While about 16.7 million persons aged 12 or older used marijuana, 7.0 million persons reported using psychotherapeutic drugs nonmedically (5.3 million reported using pain relievers, 2.0 million tranquilizers, 1.3 million stimulants, and 370,000 sedatives). Over 2.5 million persons used psychotherapeutics nonmedically for the first time within the past year, an average of around 7,000 new initiates per day. The number of patients in treatment for abuse of pain relievers has risen from 360,000 in 2002 to 739,000 in 2009.

Given these dire statistics, it is clear that action must be taken to slow, and ultimately reverse, this terrifying trend and that physicians must be a part of any solution.  While, in many cases, physicians are integral in heading off and treating addiction and there has been an emphasis on greater education regarding substance abuse and pain management for physicians, partly as a result of the White House’s Office of National Drug Control Policy’s Prescription Drug Abuse Treatment Plan,[iv] it remains clear that negligent or intentional prescribing to addicts by physicians is a major factor in this rise.  Troublingly, an analysis of the Medical Board of California’s disciplinary data shows that, despite the huge increase in prescription drug abuse documented above, medical license discipline for “inappropriate prescribing” has remained stagnant, with a mere four case increase between Fiscal Year 2000-2001 and Fiscal Year 2010-2011.[v]
It is no wonder that prosecutors are feeling that it is necessary to take unprecedented measures against physicians when one considers the exponential increase in the problem and the somewhat lackluster response by the Medical Board.  However, criminal prosecution for overprescribing is not without risk.  In the LA Times article cited above, the reporter spoke with Dr. Kimberly Lovett of the UC San Diego School of Medicine, who raised some of the most common concerns – increased suffering for legitimate chronic pain patients and the difficulty of quantifying over or inappropriate prescribing:

“The legal community is now sending a strong message to physicians: If you prescribe opiates to some ill-defined degree that we consider criminal, we’re going to put you away for it and we’re going to call you a murderer,” said Lovett, who is also a member of the Institute of Health Law Studies at the California Western School of Law. “When physicians adapt to that message, patients will suffer…. You’re now putting patients in a position of proving their innocence.”

In addition, shifting primary responsibility for the death of an addict to the prescriber removes the culpability of the addict themselves.  How much responsibility can we reasonably expect physicians to take for the actions of their patients?
As with most things, the  solution to the prescription drug abuse epidemic will likely prove to be a combination of approaches.  This will, include increased education, more vigorous license discipline for overprescribing doctors, and, perhaps, criminal prosecution in the most egregious cases. Unfortunately, that will take time.  And time, unfortunately, is running out for many people like Dr. Tseng’s patients.