Harry Nelson

Justice or just a witch hunt?

My heart went out Friday to Dr. Hsiu-Ying “Lisa” Tseng, the Los Angeles doctor convicted this past fall of second-degree murder after three of her patients died of overdoses, and her family. Tseng, who is 45 years old, received a sentence of 30 years to life.

I’m not making light of the tragic patient deaths in this case, nor the problems of physician overprescribing and inattention to prescription drug abuse by patients. The United States and the rest of the world are in the grips of a pandemic of prescription drug abuse, and physicians need to be on the front line of preventing it. At the same time, this conviction highlights some ugly trends at work in the healthcare regulatory world.

Historically, physicians and other health professionals have been accorded the privilege of practicing their profession by virtue of their application and approval for licenses to practice medicine from state medical boards. The function of professional licensing is to protect the public. To do so, these boards are charged with policing physician conduct and imposing discipline, up to and including revocation of licensure, when physicians show themselves to be unworthy of the privilege of practicing medicine.

In recent years, however, we’ve seen an increasing trend of criminalization of physician misconduct. A few weeks ago, I wrote about the way that district attorneys have usurped the role previously played by state medical boards, forcing boards to justify their existence by getting tougher on increasingly technical and less serious physician conduct. In the place of board disciplinary cases, district attorneys now bring criminal prosecutions against doctors. Dr. Tseng is only the latest physician nationally to face murder charges for prescribing narcotic opioids that led to a patient death. Last month, 81-year-old Florida physician Gerald Klein was acquitted in a similar case. The most famous prior example was Conrad Murray, who was convicted of involuntary manslaughter when his patient, Michael Jackson, died.

While there are certain types of physician misconduct where criminal charges would be appropriate (such as possession of illegal narcotics or commission of insurance fraud), the criminalization of prescribing medication or other clinical conduct is troubling on several levels.

First, there is an issue of unfair surprise for physicians who get charged criminally for clinical errors. Doctors are on notice when they apply for licensure that if they depart from the standard of care in prescribing medications, they may be placing their professional licenses in jeopardy and face medical board accusations of excessive prescribing, prescribing without indication, or gross negligence. Similarly, doctors are on notice that the DEA may revoke their registrations to prescribe controlled substances for the same reasons. But doctors are never warned that some clinical errors are so serious that they may be criminal. (My impression is that this trend has been a specific outgrowth of the ineffectiveness of prosecutors representing the board.)

Dr. Tseng certainly did not know the stakes. She appears to have been duped by patients who were selling the drugs she prescribed. She reminds me of many physicians I’ve met, who are so focused on being compassionate to patients with chronic pain problems that they fail to adequately protect themselves.  I’m not letting her off the hook for not practicing at the standard of care in prescribing medications; to the contrary, I think her lack of awareness presented a public safety risk that warranted revocation of her medical license.  But at least part of the problem is that she, like many doctors, was not cynical enough about their patients’ motives or thoughtful enought about how patients might misuse medications.

Second, there is a pointlessness to the prosecution. Physicians like Dr. Tseng are not wanton killers, but rather professionals who exercised bad judgment. She appears to have been oblivious to the drug-seeking behavior of patients and the danger inherent in overprescribing. Taking away her medical license would have achieved the professional licensing board’s purpose of protecting the public, because she could no longer issue inappropriate prescriptions. Putting her in prison for 30 years serves no purpose whatsoever. Stripped of the ability to prescribe, Dr. Tseng poses no threat to anyone. California taxpayers can thank prosecutors for wasting resources in the name of punishing her.

Third, there is a nasty undercurrent of demagoguery in the way that criminal prosecutors handle cases like Tseng’s. They play to the emotions and prejudice of jurors rather than the clinical evidence, focusing on how much money a rich “dirty doctor” made in a “pill mill.” In place of analysis of the standard of care by medical reviewers and proportionate sentencing that takes into account guidelines established for consistent handling of these types of cases, the case is sensationalized and the penalty stands as a radical outlier to any other decision.

Fourth, the villainization of doctors in the problem of prescription drug abuse obscures the culpability that exists throughout the entire broken system. Doctors who prescribe a medication are only one point of contact. What is the responsibility of the pharmaceutical manufacturers who produce and market these deadly, abused products? What about the responsibility of the patients who, in many of these cases, combine the medications with alcohol or illegal drugs? What about the responsibility of the patients who lie to doctors to encourage them to prescribe?

I’m not minimizing the tragedy of Dr. Tseng’s patients who died, but I am left with a sense of injustice about Dr. Tseng having been subjected to murder charges and spending the next three decades in prison. License revocation makes perfect sense. But 30 years in prison?

Over the years I have worked with many deeply compassionate doctors who struggled with prescribing for patients with chronic pain. These are doctors who only want to take care of people who are genuinely suffering, and aren’t sure how to do so in a treacherous environment where scheming patients may be playing them for fools or where pharmacies, insurance companies, and licensing boards are second-guessing their compassion. I have a number of doctor friends and clients who have chosen to stop prescribing opioids altogether and simply make referrals to a pain specialist, which feels like an abdication of responsibility, albeit a rational choice. The reality is that, even before the Tseng conviction, there is a climate of fear among physicians who prescribe long-term narcotic opioids. Doctors frequently call me in a panic after a patient passes away, especially when that patient is a celebrity. Over the years, I’ve tried to help doctors develop effective compliance mechanisms to ensure that their patients are not drug-seeking nor engaging in diversion by selling drugs onto the street. We’ve developed physician-patient contracts, encouraged urine toxicology screening, and counseled doctors to terminate patients who weren’t strictly compliant.

These things help. But what would really help is to have state licensing boards do their job and deal with these cases as disciplinary matters, rather than leaving the dirty work to ill-equipped criminal prosecutors.

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