5 ways to avoid overprescribing allegations

Being charged with murder for overprescribing narcotics is more common than you might think. Here are steps attorneys say you can take to avoid criminal charges.

Primary care physicians (PCPs) need to use caution when prescribing painkillers, say criminal defense attorneys who have represented physicians charged with overprescribing.

On March 1, a general osteopathic physician in California was charged with second-degree murder after the prescription drug overdose deaths of three patients in their 20s, according to a statement from the Los Angeles County District Attorney’s Office.

Hsiu-Ying “Lisa” Tseng, DO, 42, was taken into custody by state medical board investigators. Tseng is being held on $3 million bail.

“Family doctors are between a rock and hard place,” Michael J. Khouri, JD, of the Khouri Law Firm and former assistant district attorney in Orange County, California tells Medical Economics eConsult.

Health maintenance organization insurance plans often require a PCP to see a patient before referring to a specialist, creating a dilemma for the PCP, Khouri says.

Khouri, who specializes in defending physicians and healthcare organizations against criminal charges, recommends physicians give patients a small prescription for the lowest-dose painkiller necessary and then refer them to specialists.

“Make sure you have an internal policy for prescribing controlled substances,” he adds.

Most physicians who are the subjects of overprescribing investigations are solo doctors or the only physician working in a clinic, George F. Indest III, JD, MPA, LLM, owner of the Health Law Firm in Altamonte Springs, Florida, tells eConsult.

“If you are going to practice any pain management, it is recommended that you do so in a group practice or institutional setting,” Indest says.

Indest has represented several physicians who have been accused of overprescribing. In almost every case, the Drug Enforcement Administration (DEA), state or local health departments, or local law enforcement used undercover agents posing as patients to secretly record the physician encounters.

Indest offers the following tips for protecting yourself from overprescribing charges and drug-seeking patients:

Confirm the patient’s identity. Require valid, government issued identification, preferably two forms, and ask the patient a few background questions that can be verified. “Identity theft is common among drug abusers seeking prescription meds,” Indest says.

Require that prior medical records be sent directly from other physicians., Radiology report forgery and the sale of false reports, especially for diagnostics such as MRIs and x-rays, are notorious among drug seekers, he says.

Require a urinalysis test before every visit. Wait for the report and review it prior to prescribing. An absence of the medications in the test results is just as informative as the presence of medications you have not prescribed.

Stop treating “doctor shoppers.” If you get any information that the patient has been visiting other doctors or obtaining similar medications from more than one physician, immediately terminate the relationship and notify local law enforcement. In many states, “doctor shopping” by patients is now a crime.

Be leery of out-of-state patients. Treating patients seeking opioids and other controlled substances from outside the area – even if they’re family members of patients – should raise some red flags.

Tseng, licensed to practice in 1997, opened a storefront medical office in Los Angeles in 2005. The DEA launched an investigation in 2008 after a pharmacy reported overlapping customers. Along with the murder charge, Tseng is charged with one felony count of prescribing drugs using fraud and 20 felony counts of prescribing drugs without a legitimate purpose. Two of the prescription counts involve two of the patients who died. The charges involve patients or prescriptions written for undercover officers. The lead investigative agency is the California Medical Board.

If convicted as charged, Tseng faces a possible maximum state prison term of 45 years to life.

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