In 2011, I wrote the article below arguing that criminalizing medicine was a bad idea.
Then I saw this press release from the United States Department of Justice. Dr. Jorge Zamora-Quezad was convicted of health care fraud and obstruction of justice in his rheumatology practice. He reportedly falsely diagnosed patients with chronic diseases such as rheumatoid arthritis and then billed the government for administering expensive chemotherapy drugs based on the false diagnoses. In total, Dr. Zamora-Quezad reportedly made more than $325 million in his practice. Once discovered, he also reportedly falsified medical records in an attempt to mislead the grand jury investigation into his practices. The press release stated that Dr. Zamora-Quezad “traveled to his various offices on his private jet and in his Maserati.” He’ll be sentenced in late March.
I still think that criminalizing medicine is a bad idea. I also think that Dr. Zamora-Quezad should have been criminally prosecuted for his actions. How do I reconcile the disconnect?
Intent.
If Dr. Zamora-Quezad intentionally misdiagnosed patients with disease so that he could bill the government hundreds of millions of dollars for expensive medications, he wasn’t practicing medicine. He was using his medical license as a means to perpetrate fraud on patients and on the government.
On the other hand, if a medical provider is taking actions that are genuinely intended to help a patient, I have a hard time justifying the threat of incarceration. Malpractice suits? No problem. Licensure actions? Go for it. Jail time is too much.
Read below and see what you think.
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September 14, 2011
Lets say that you work in a Chinese restaurant. A customer orders chicken with peanut sauce. You give them their order. Later the customer goes home and dies from an allergic reaction to peanuts. The customer did not tell you that he had a peanut allergy, but nevertheless, later you are arrested and charged with a felony because you served the customer peanuts and caused the patient’s death. You must hire a lawyer to fight the charges and could end up in jail for four years.
Or suppose you work in a bar. A customer comes up and orders a triple shot of tequila. You pour it, the customer drinks it and leaves. The customer did not look intoxicated at all and tells you that he has not been drinking at all. Later, he gets into a car accident and dies. You are arrested and charged with a felony for serving the customer a drink when the customer had already been drinking. You must hire a lawyer to fight the charges and could end up in jail for four years.
Finally, imagine that you are a doctor. A cancer patient with chronic back pain comes into your office. The patient has an allergy to some medications and states that other medications “don’t help the cancer pain.” You know that if you don’t make the patient happy and get low patient satisfaction scores that you could lose your job. The patient tells you that she has only taken Motrin for the past three months. So you prescribe the patient some narcotic pain medications. Actually, the patient has received the same pain medication prescriptions from several other physicians. Later the patient is found dead from a medication overdose. You are arrested and charged with a felony for prescribing the pain medications that killed her. You must hire a lawyer to fight the charges and could end up in jail for four years.
Sound fair to charge the worker, the bartender or the doctor with a crime?
In each case, one person gave another person a substance that caused the other person to die. None of the people intended to kill anyone and each one believed what the other person was telling them.
However, one of the examples could soon become reality.
According to this article in the Chicago Tribune, fatal overdoses from prescription painkillers more than tripled in the United States between 1999 and 2006. To combat that problem, prosecutors are now more willing to charge doctors with crimes when patients abuse prescription drugs because “prosecution of doctors is seen as more effective than bringing cases against their patients.”
Recent years have shown a significant uptick in criminal prosecution of physicians. According to the Tribune article,
Legal database research showed that there were 24 criminal cases against doctors in 20 years between 1981 and 2001.
Legal database research showed that there were 37 criminal cases against doctors in 10 years between 2001 and 2011 – most being recent cases for over prescribing painkillers.
The DEA reported 43 physician arrests resulting in convictions in 2008 alone.
Some may say that criminalization of medicine is needed and point to outlier cases such as Conrad Black giving Michael Jackson an overdose of pain medication. However, where should the line be drawn between negligent medical care and criminal medical care? It isn’t as easy as it seems to differentiate the two.
Think about the consequences that will occur as the practice of medicine becomes more likely to subject doctors to jail time.
When physicians were sued for millions of dollars for missing diagnoses, what happened? Most physicians now practice “defensive medicine” and significantly increase the testing they order so that they don’t miss the “needle in the haystack” diagnosis. CT scan use has skyrocketed. Some physicians retired early or limited their practices to low-risk patients. Several years ago, as the billboard below stated, there were no neurosurgeons in Will County, Illinois who were willing to do brain surgery on an injured patient.
As more and more doctors are charged with crimes for prescribing pain medications to patients, how will the medical community respond? Will future students want to spend 10-12 years in school, amassing hundreds of thousands of dollars in college and medical school loans to lose everything and possibly be thrown in jail for writing a prescription?
How will patient care suffer? Florida physicians who lose three lawsuits lose their license and Florida has some of the highest medical malpractice premiums in the country. Florida is also mentioned in the Tribune article as one of the states actively pursuing criminal charges against physicians. How do those factors affect the availability of physicians in Florida? Ask Florida Senator Bill Nelson. He recently issued a press release stating that “Florida desperately needs more doctors.”
If doctors can be sent to jail for prescribing pain medications, I foresee a lot fewer doctors being willing to prescribe pain medications – especially in higher doses like those needed to treat patients in chronic pain or patients with cancer pain.
Malpractice lawsuits and actions against a physician’s license are one thing. Subjecting physicians to prison for prescribing pain medications is quite another.
If prosecutors want to decrease the number of prescription deaths in this country, enforce laws against patients who doctor shop to obtain multiple narcotic prescriptions – like Tennessee has done.
Criminalizing medicine is just a bad idea.