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Doctors warn of criminalizing painkiller prescriptions

Doctors who prescribe powerful painkillers are worried they could be prosecuted for doing their jobs.

Recent comments by public officials about holding doctors legally accountable for their role in the opiate epidemic sparked a sharp response from leaders of local and state medical societies. Patients suffering from chronic pain already have a hard time finding a willing doctor to help them. Threatening well-meaning doctors with legal action in overdose death cases will only make that worse, they say.

“We certainly have no problem with physicians being prosecuted if they have committed a true crime,” said Dr. Thomas J. Madejski, vice president for the Medical Society of the State of New York. “But to criminalize physicians in the practice of medicine is really a step in the wrong direction.”

The response comes on the heels of recent comments by Erie County Executive Mark C. Poloncarz and acting U.S. Attorney James P. Kennedy Jr. about the desire to hold physicians accountable for their contributing role in opiate drug-related deaths.

Both Poloncarz and Kennedy said their comments may have been misconstrued. There are no plans to change the standards by which physicians have always been held accountable.

“It’s not anything new. It’s the way we’ve always done business,” Kennedy said. “What is new is the scope of the problem.”

Erie County sues drugmakers over 'addictive and dangerous' painkillers

Six physicians in Erie and Niagara counties have been criminally prosecuted for illegally prescribing opioid-based painkillers in recent years.

Access to treatment remains a serious problem – one that could get worse if public officials give doctors reason to believe that the heavy hand of the courts and criminal justice system may come down them, said Dr. Nancy H. Nielsen, senior associate dean for health policy at the University at Buffalo’s Jacobs School of Medicine and Biomedical Sciences.

“They fear not just for their license,” Nielsen said. “They fear for their very freedom.”

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The Gosy case

Dr. Eugene J. Gosy has emerged as the area’s most high-profile prosecution target. He was charged in a 114-count indictment of illegally prescribing drugs and fraudulently billing the state workers’ compensation system. The temporary closure of Gosy’s Amherst office resulted in his 9,000 patients becoming “medical refugees” until an emergency plan was put into place to reopen the practice and ensure patient access to medication.

Physicians who stepped in to treat some of his patients did not support or condemn Gosy’s indictment.

But during an editorial board meeting at The Buffalo News, they said many of the patients they saw had legitimate needs and “reasonable” treatment plans.

Madejski practices geriatric and palliative care in Orleans County and cared for some of Gosy’s patients. He said he did not agree with Gosy’s management of every patient but found complicated cases.

“He had some of the most difficult patients that I’ve ever seen,” Madejski said. “In these very difficult cases, with the knowledge that we had, I think he practiced reasonably.”

The more doctors fear they may be prosecuted for prescribing opioid painkillers, advocates said, the more doctors will refuse to see or keep patients who suffer from complicated pain. That’s part of the reason the temporary closure of Gosy’s practice resulted in a major public health crisis, they said. Many of those patients had nowhere else to go.

Nielsen recounted a Gosy patient with four failed back surgeries, others with multiple complications, and those who were bedridden and wheelchair-bound without narcotic pain medication.

Dr. Eugene Gosy, pictured in 2011. (Derek Gee/Buffalo News)

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Worried doctors

Physicians who act like drug dealers should not be lumped in with doctors who evaluate and treat patients with legitimate medical conditions, Nielsen said.

Prosecuting someone like Gosy falls into a gray area, they say. That’s not the case with someone like Dr. Matthew A. Bennett, the physician who traded a “grill for pills” and signed illegal prescriptions in exchange for repairs and improvements at his Clarence home.

“That’s not medicine,” Nielsen said.

But if law enforcement officials become the judges of what constitutes appropriate medical care, the chilling effect on doctors and harmful impact on patients could be immense, the doctors said.

Representatives from the Erie County Medical Society, an advocacy group of more than 1,100 physician members, fear just that.

Nielsen pointed to remarks Poloncarz made at a recent Opiate Epidemic Task Force meeting, where he touted Erie County’s recent lawsuit filing against major pharmaceutical companies for misrepresenting the addictive properties of their opioid-based painkillers. The suit accuses the companies of deception, false advertising and fraud, among other charges.

Aside from drug manufacturers, Poloncarz said the county will also go after doctors. He pointed out the lawsuit targets four out-of-area physicians, two of whom are listed as living in New York, who were paid to promote these drugs.

“At least two of the names I recognized, and they are giants in the field of palliative care and pain medicine,” Nielsen said.

She fears those doctors are being punished for promoting once acceptable, even encouraged, prescribing practices.

“When docs hear that, they say, ‘Wait a minute. If I’m trying to do what I think is right in taking care of a patient, and I’m either going to be sued or criminally prosecuted for it, I’m not going to do it,’ ” she said.

Christine C. Ignaszak-Nadolny, executive director of the Erie County Medical Society, referred to comments recently made by Kennedy at the Opiate Symposium at Hilbert College. Kennedy mentioned aggressively prosecuting physicians who “misprescribe” or “unlawfully prescribe” narcotic painkillers.

Those types of remarks will only lead to more doctors being unwilling to take, treat or keep patients with chronic pain, Ignaszak-Nadolny said.

“Our office phones are ringing off the wall from patients who cannot find any adequate pain management,” Ignaszak-Nadolny said. “And their own physicians are very concerned about continuing their care.”

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Unnecessary alarm

Poloncarz and Kennedy said their remarks are raising unnecessary alarm.

Poloncarz spokesman Peter A. Anderson and Benjamin M. Swanekamp, assistant to the county health commissioner, said the county executive’s remarks were strictly limited to the county lawsuit and not a commentary about general legal action against physicians. Swanekamp said the four physicians named in the lawsuit targeting pharmaceutical companies had judgments levied against them in a prior pharmaceutical company suit.

“I think they may be reading way too much into Mark’s comments at the task force meeting,” Swanekamp said.

Kennedy, meanwhile, said the U.S. Attorney’s Office has not changed its prosecuting standards for physicians.

“It’s not a new policy,” Kennedy said. “If doctors are following reasonable medical practices, they have nothing to worry about it. But if they’re engaging in fraud or they’re engaging in something else, then maybe they should be worried.”

Medical society representatives acknowledge that physicians bear some responsibility for the opioid epidemic and need to change their prescribing practices. They noted that the Erie County Medical Society has assisted in creating new treatment guidelines for acute pain and supports mandatory education requirements for physicians on the newer guidelines for how and when narcotic painkillers should be used.

“There’s no question that we’ve been very liberal, in the past, about using these drugs,” Nielsen said.

But that was once an acceptable practice.

“We were being told that failure to eliminate patients’ pain amounted to malpractice,” said Dr. Timothy F. Gabryel, Erie County Medical Society president. “That was 10 or 15 years ago, but that was the state of the art at the time.”

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