Overprescribing and Medical Board Enforcement: How to Avoid Discipline

State medical boards take the inappropriate overprescribing of controlled medication very seriously. For this reason, it is important to take appropriate steps to protect yourself from mistakes that can lead to overprescribing enforcement actions by your medical board. Many physicians may feel that it may be difficult for medical boards to monitor prescriptions, but in some states, this is actually not the case.  

Several states have internal databases that monitor prescriptions. In Florida, legislators recently enacted laws placing restrictions on physicians dispensing controlled substances as well as reporting mandates for physicians treating chronic pain. As a result, disciplinary actions by the Florida Board of Medicine jumped from 215 actions in 2010 to 332 in 2011. California, for example, has a state database for drug prescribing known as the Controlled Substance Utilization Review and Evaluation System, commonly called CURES. There are over 100 million entries on the CURES database.2

One of the devices the California Medical Board uses is a patient activity report.3 The patient activity report contains an entire list of all Schedule II-IV prescription drugs that have been prescribed to an individual patient. The report includes the name of the physician that prescribed the drug as well as the pharmacies where the patient obtained the drugs.4 Similarly, in Texas, the Texas Prescription Program monitors Schedule II-IV prescription drugs from manufacture to end use. Like California's patient activity report, the TPP can be used to verify a physician's prescription record, generate prescription trends and inquire about patients.5

Patient reports generally come into play after a complaint has first been filed with the state medical board. After receiving the complaint, the medical board will initiate an investigation into the validity of the complaint. During this process, medical board investigators will review the patient report and look for patterns that indicate overprescribing of narcotics.6 Some of the patterns that will get medical board attention include: the quantity of drugs being prescribed to particular patient, the patient's location as compared to the location of the physician (presumably, if a patient travels a great deal to see a physician, he or she may appear to be seeking illicit drugs), how many past physicians the patient has seen and how many different pharmacies the patient used to fill the prescription.7

Many times, physicians are innocent parties and fall prey to a patient that is "doctor shopping" for pain medication. These kinds of patients may go from one physician to another looking for a physician to prescribe pain medications. To the physician, the patient may seem qualified for a prescription, but in reality the patient is simply trying to obtain illegal drugs. This is especially difficult for physicians because measuring pain in a patient is complicated, and physicians regularly have to rely on patient testimonials to assess pain.

Nonetheless, even innocent physicians can be held responsible for negligent overprescribing. In order to combat doctor shopping, some states have decided that having access to patient databases is not enough, and now require physicians to check database information before writing certain prescriptions. Beginning in 2013, physicians in New York and Tennessee will be required to query prescription drug monitoring databases before a prescription is written for controlled substances and continue to monitor databases for regular periods thereafter.8

It is not surprising that many drug-related types of misconduct are forbidden by state law and subsequently will serve as the basis for medical board enforcement. Any conviction for violating a federal or state statute regulating drugs constitutes unprofessional conduct.9 A violation of one of these statutes, even without a conviction, may serve as the basis for a finding of unprofessional conduct.10 In California, Business & Professions Code section 2241.5(d) states "a physician and surgeon shall exercise reasonable care in determining whether a particular patient or condition, or the complexity of a patient's treatment, including, but not limited to, a current or recent pattern of drug abuse, requires consultation with, or referral to, a more qualified specialist."  

So what can a physician do to avoid the overprescribing traps?11 Registering for access to a patient database will allow physicians to obtain reports on patients, which will provide statistical information about prior drug prescriptions with regard to a particular patient. Once registered, a physician can look up a new patient who has raised certain red flags regarding pain medication. Physicians should also perform complete examinations of patients and document meticulous notes in the patient's charts.12 If a physician does attract the attention of the medical board, then he or she will have to justify the prescription. Well maintained and documented patient charts are essential for that, especially if memory may be an issue based on the amount of time that has elapsed from when the physician treated the patient. In maintaining proper documentation, the physician should keep a record of all drugs dispensed in the office and all prescriptions filled out, detailed descriptions of the tests or examination performed and detailed descriptions of the pain or symptoms of the patient.13 Physicians should avoid prescribing pain medications without first performing a physical exam, even if it is a recurring patient. 

Physicians should also properly screen patients seeking prescription drugs. Likely red flags include patients who have had numerous physicians in a short period of time, patients that refuse to try non narcotic treatments, patients that request specific narcotics at the outset of treatment and patients that appear to require re-fills too quickly.14 Physicians should use common sense and their trained medical instincts when screening patients for the first time.    

Investigations and medical board trials are costly. Even if the physician ultimately prevails, thousands of dollars may have been spent to prove he or she was not negligent or did not engage in unprofessional conduct. For this reason, it is essential that physicians take appropriate steps to ensure that pain medication prescriptions do not get the negative attention of the medical board.  


1 http://www.ama-assn.org/amednews/2012/06/04/prl10604.htm
2 http://oag.ca.gov/cures-pdmp
3 http://www.mbc.ca.gov/licensee/seven_sins-gluttony.html
4 Id.  
5 http://texaspain.org/Docs/PrescriptionMonitoringTexas.pdf
6 http://www.mbc.ca.gov/licensee/seven_sins-gluttony.html
7 Id.  
8 http://www.ama-assn.org/amednews/2012/06/25/bisg0628.htm
9 California Business & Professions Code § 2237.  
10 California Business & Professions Code § 2238.  
11 https://pmp.doj.ca.gov/pdmp/Guidelines%20for%20Combating%20rx%20abuse.pdf
12 Id.  
13 Id.
14 Id.  

Nicholas Jurkowitz, JD, is an associate at Fenton Nelson with a wide range of experience representing and advising healthcare providers on litigation related matters. His work focuses on representing providers in administrative proceedings and in all aspects of civil litigation.

Farooq Mir, JD, is an associate at Fenton Nelson.

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