| STATEMENT
According to the American Medical Association, inadequate treatment of acute and chronic pain is one of the most egregious problems in American medicine. Minimally, there are an estimated 17 to 40 million intractable pain patients in the United States. The vast majority receive grossly inadequate or even no treatment for their pain. Alcoholism, the use of illicitly obtained opiates, and suicide are directly correlated with inadequate treatment. The largest obstacle to the treatment of intractable pain is physician fear of regulatory prosecution.
Every physician faces such prosecution alone. Notification of intent to investigate a physician's pain treatment cases generally will lead to costs of $10,000 to $25,000 to retain counsel. If the investigation proceeds to a formal action against the doctor's medical license, legal fees will approach $150,000. If the physician suffers loss or compromise of his medical license, taking the matter on appeal to a district court can result in legal fees approaching $250,000. If criminal charges are involved, the physician can expect it will cost $500,000 to prove that the charges were baseless.
Few physicians can afford such out of pocket expense. Consequently, most physicians choose to avoid the inherent risks by avoiding treating intractable pain patients.
Of those physicians who do prescribe opioids, many, if investigated, will choose to accept an unwarranted probation or limitation on their medical license, or even surrender their license rather than risk the cost and stigma of further defense. Worse, they are often advised by naïve and inexperienced counsel to accept a reduction of charges to a single felony and plead guilty. What they do not realize is that in doing this their medical career is then over. Few realize that admitting to a felony will result in a report of this conviction to the federal government's National Practitioners Database. Once this information is reported, it results in termination of their state medical license and their federal controlled substances registration, and exclusion from Medicare and Medicaid. A physician who loses his DEA registration or surrenders it voluntarily to avoid action against the license may not, by law, be employed by any facility such as a hospital, clinic or individual practice that holds a registration. This essentially ends their professional careers. Few doctors are advised of these consequences by their attorneys, who generally have no experience in this area of the law and medicine.
No centralized repository of data about such prosecutions is known to exist. Although there are few final actions by state boards or DEA administrative law judges, there is little or no way to determine how many investigations are started and then "settled".
A similar challenge to the practice of medicine arose in the 1970's with the onset of the crisis of medical malpractice litigation.The mitigation of this problem involved modification of the laws concerning malpractice liability (tort reform), the establishment of medical malpractice review mechanisms (medicolegal review boards) and the expansion of medical malpractice insurance. With malpractice insurance it was possible to distribute the costs of legal defense among a large number of practitioners. This made legal defense available to all doctors, discouraged frivolous lawsuits with "deep pocket" legal defense resources, and spared individual doctors from being financially ruined by legal defense fees.
There are 931,000 practicing physicians in the United States licensed by the Drug Enforcement Agency. Enrollment of only a small percentage off these practicing physicians in the United States will annually generate a sum equivalent to the financial resources currently available to regulatory and criminal prosecution. It will level the playing field. It will also provide the means for serious efforts at changing public policy.
Enrollment in PPLA will generate sufficient resources to virtually guarantee that no doctor would ever again face loss of licensure for any reason other than real criminal behavior.
The availability of medical license protection should also reduce the number of prosecutions each year. We estimate that prosecutions will decrease when physicians no longer face such legal charges alone. Logic argues strongly that prosecutors, frequently motivated by the prospect of an easy prosecution against inexperienced legal counsel, whose doctor clients have limited financial resources, will be strongly deterred by substantial and seasoned resources for the doctor's legal defense.
The National Foundation for the Treatment of Pain (www.paincare.org), with the PPLA, offers this protection immediately. The Foundation is utilizing contemporary guidelines for the legitimate practice of intractable pain management by those enrolled. A review board comprised of independent, expert pain specialist professionals and attorneys reviews all claims. Claims in which criminal activity has occurred or in which the standards of care and record keeping were not followed, will be denied under the terms of the contract of protection. But those doctors who have the protection, have conformed their practices to the standard of care, and are not criminals, will have huge resources ready to defend them.
Pain Practice Liability Association will address an enormous social-medical problem. It will help facilitate the universal availability of competent and legitimate treatment for intractable pain. It will safeguard every physician who practices the legitimate treatment of intractable pain. It will also generate a permanent source of endowment for the defense of legitimate pain treatment practitioners and improvement of the regulatory and legal setting in which opioids are prescribed by conscientious doctors. This will help achieve profoundly important changes in public policy that will protect the singular and most valuable asset of all practicing physicians. Currently this license is intolerably vulnerable to regulatory prosecution and social and political fads and vagaries. Further, professional expertise and certifications offer little protection against such prosecutions. PPLA will eliminate this insufferable situation
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