Doctors Prosecuted for Opioid Prescribing Should Fight Back

(Editor’s note: In 2016, Dr. Mark Ibsen’s medical license was suspended by the Montana Board of Medical Examiners for his opioid prescribing practices. Two years later, the suspension was overturned by a judge who ruled that the board made numerous errors and deprived Ibsen of his legal right to due process.)

By Mark Ibsen, MD, Guest Columnist

The headlines are pretty typical: “60 Doctors Charged in Federal Opioid Sting.” The story that follows will include multiple damning allegations and innuendos, including a claim by prosecutors that they are “targeting the worst of the worst doctors.”

Sometimes there is a trial, but often the doctors plead guilty to lesser charges and give up their license rather than mount a lengthy and costly legal defense.

Why are doctors losing every case to their medical boards and DEA? Are there that many criminal doctors? If so, what happened to our profession?

I see a pattern emerging: A doctor sees patients and treats pain in the course of their practice. As other doctors give up prescribing opiates for fear of going to prison or losing their license, the ones left end up seeing more and more patients.

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They soon become the leading prescribers of opioids in their state and become suspect just based on the volume of opioids they prescribe.

Given that law enforcement and medical board investigators usually don’t have training in statistics (or medicine), they are unable to see that the number of pain patients remains the same, but there are fewer practitioners willing to treat them.

“The Criminalization of Medicine: America’s War on Doctors” was published in 2007, but is even more relevant today.   

“Physicians have been tried and given longer prison sentences than convicted murderers; many have lost their practices, their licenses to practice medicine, their homes, their savings and everything they own,” wrote author Ronald Libby. “Some have even committed suicide rather than face the public humiliation of being treated as criminals.”

Libby wrote over a decade ago about doctors’ homes and offices being raided, DEA agents posing as pain patients to entrap them, and law enforcement task forces being created to target doctors for fraud, kickbacks and drug diversion.

Sound familiar?

I was reviewing a case about a nurse practitioner in Michigan who recently had her license suspended because she prescribed opioids “contrary to CDC guidelines” and “ranked among Michigan’s highest-volume prescribers of commonly abused and diverted controlled substances.”

This unsubstantiated crap put out by the Michigan Board of Nursing and its investigator is unethical and immoral. It should lead to a mistrial in court or dismissal at hearings. 

Fight Fire With Fire

This is an Amber alert for physicians. While pejorative headlines contaminate the discourse, the prescriber’s reputation bleeds away. The Montana Board of Medical Examiners did this in my case, and since I knew that the board was relentlessly after my license for “overprescribing” opioids, I gave up any hope of fairness.

My proposal: Lawyers representing doctors must counter the negative headlines with their own, and doctors should use whatever goodwill is left to rally their staff and patients, counteracting the pressure to testify against the doctor. 

I used what was left of my bully pulpit to save my own license and freedom. How? My assistant assembled my patients in large crowds at my hearings. I also made myself available to the media to counter the narrative put out by Mike Fanning, the board’s attorney, who went so far as to publicly question my sanity.

Fanning’s title was special assistant Attorney General, which told me the medical board works for DOJ in my state. I knew this for sure when DEA agents came to my office and tried to intimidate me.

“Doctor Ibsen, you are risking your license and your freedom by treating patients like these.”

Patients like what?

“Patients who might divert their medicine.”

Might? Isn’t that everyone? What would you have me do?

“We can’t tell you, we’re not doctors.”

My plea to doctors: Let’s reinvent our defense. The DEA and medical boards have a formula. It’s winning. 

We need a new response: Fight back and hold on. Just like with any bully, reveal their game and fight fire with fire.

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Dr. Mark Ibsen continues to practice medicine in Montana, but focuses on medical marijuana as a treatment. He no longer prescribes opioids. Six of his former patients have died after losing access to Dr. Ibsen’s care, three by suicide.

Do you have a story you want to share on PNN? Send it to: editor@painnewsnetwork.org.

The information in this column should not be considered as professional medical advice, diagnosis or treatment. It is for informational purposes only and represents the author’s opinions alone. It does not inherently express or reflect the views, opinions and/or positions of Pain News Network.

Fed Prosecutors to Target Doctors and Pharmacists

By Pat Anson, Editor

Attorney General Jeff Sessions has announced the formation of a special prosecution unit in the U.S. Justice Department to target opioid fraud and abuse.

The 12-member unit will not focus on the flourishing underground trade in heroin and illicit fentanyl, but will instead use healthcare data to identify doctors and pharmacies that prescribe or dispense large amounts of opioid pain medication, and prosecute those suspected of fraud or diversion.

“I have created this unit to focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are contributing to this opioid epidemic,” Sessions said in a speech at the Columbus Police Academy in Ohio.

“This sort of data analytics team can tell us important information about prescription opioids -- like which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a doctor's patients died within 60 days of an opioid prescription; the average age of the patients receiving these prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for opioid issues.”

For the next three years, Sessions said 12 experienced prosecutors will focus solely on investigating and prosecuting health care fraud related to prescription opioids, including pill mills and pharmacies that divert or dispense prescription opioids for illegitimate purposes.

The Opioid Fraud and Abuse Detection Unit will concentrate on 12 federal court districts around the country:

  1. Middle District of Florida
  2. Eastern District of Michigan
  3. Northern District of Alabama
  4. Eastern District of Tennessee
  5. District of Nevada
  6. Eastern District of Kentucky
  7. District of Maryland
  8. Western District of Pennsylvania
  9. Southern District of Ohio
  10. Eastern District of California
  11. Middle District of North Carolina
  12. Southern District of West Virginia

The Attorney General said preliminary data shows that nearly 60,000 Americans lost their lives to drug overdoses last year, but only in passing did he note that many of those deaths were caused by heroin and illicit fentanyl. In some states, such as Ohio, Pennsylvania and Massachusetts, more overdoses are linked to illicit fentanyl than any other drug. The CDC estimated that about one in four overdose deaths in 2015 involved prescription opioids.

Sessions said in recent years some government officials – who he did not identify -- have sent “mixed messages” about the harmful effects of drugs.

“We must not capitulate intellectually or morally to drug use. We must create a culture that is hostile to drug abuse. We know this can work. It has worked in the past for drugs, but also for cigarettes and seat belts. A campaign was mounted, it took time, and it was effective. We need to send such a clear message now,” Sessions said. “I issue a plea to all physicians, dentists, pharmacists: slow down. First do no harm.”

Last month the Justice Department announced the largest health care fraud takedown in history, resulting in the arrests of over 400 people around the country. Over 50 of the defendants were doctors charged with opioid-related crimes.

The department also announced the seizure and take down of AlphaBay – a large “dark net” website that hosted over 200,000 listings for synthetic opioids and other illegal drugs.

Sessions has long been a critic of marijuana legalization, but did not mention it in his Columbus speech. In May, he wrote a letter to congressional leaders asking them not to renew a federal law that prevents the Justice Department from interfering with state medical marijuana laws.