Today, doctors’ liberty and property are at risk when they choose to treat a patient. Not because of some new law but because of the misapplication of old ones. The current opioid panic has essentially given the DEA free rein to target any physician whose medical practice they disagree with. This has created a serious problem in American medicine and a unique danger to health care providers in this country. First, let’s deal with the history of present illness or HPI as we refer to anamnesis in the U.S. We expect the patient to tell us everything, and we are expected to compassionately and nonjudgmentally receive this information and use it for the sole purpose of improving our patient’s health and developing an effective treatment plan. This is not how the DEA sees it. They think that we should weed out those they believe to be “at risk” of misuse, diversion, overdose, or addiction.
That this would be a violation of our sacred duties as physicians, tantamount to every priest slapping cuffs on people in confession when they disclose a legal transgression, seems to escape them. I listened today to my state’s pain committee discuss the need for physicians to consider not just the needs of an individual patient but “the greater good,” as they see it, of society. That creates a problem. First, how often does a government’s determination of the greater good turn out to be historically correct from an evidence-based evaluation? I would argue that this is quite rare. While the government has the right to enforce laws, it cannot engage in social engineering, at least not in a democracy and then only if the people and the Constitution have agreed, and on this point, they clearly have not.
Also, how can doctors possibly be advocates for each individual patient if they are constantly worrying about being Monday morning quarterbacked on whether or not their medical decisions were “good for everyone”? Are doctors expected to sacrifice the needs of the individual for the perceived good of the many? I’ll give you an example. There are bacterial diseases that have become antibiotic-resistant due to the overuse of antibiotics. While this overuse is often blamed on physicians, and there is some merit to the argument, it is almost completely due to modern meat production, where the wholesale use of broad-spectrum antibiotics in feed produces heavier livestock and, therefore, more money. So, if a patient comes to me with an infection for which there is a single treatment, what do I do?
Let’s say the patient is seventy-two years old and suffering from active and severe AIDS, complicated by any one of several severe infections like methicillin-sensitive staphylococcus aureus (MSSA), which, as the name implies, can only be treated by beta-lactams such as methicillin. Some would argue that the best thing I could do for society as a whole is to let this patient die from the infection. Why might this be the case? This is an older patient with around a decade of expected lifespan under the best of conditions, but this patient has active acquired immune deficiency syndrome, which means his immune system is knocked down to where bread mold could kill him. If I treat his MSSA with methicillin, it may allow the bacteria growing in his system a better chance of evolving immunity to the antibiotic class, thereby taking away our last weapon and leaving the public defenseless.
It could be then argued that for the good of all, I should make him comfortable and let him die. I would contend that this argument, though logically coherent, is one that no individual physician should ever be forced to accept. I would go even further and argue that any physician who made such a choice should lose the right to treat individual patients. This, ladies and gentlemen, is the road to Nuremberg. It is a beautiful city, I’m told, but one whose name will always be associated with the greatest crimes against humanity. Not a few of these crimes were committed by physicians caught up in their government’s attempts to engineer society. The physician’s duty, like the attorney and priest, is only to the individual. An individual can choose to sacrifice themselves for the good of everyone else and we rightfully revere them when they do.
But everyone else does not have the right to sacrifice the individual for their own perceived good or comfort, I would argue. Otherwise, the U.S. will end up like communist China, parting out the organs of citizens deemed unproductive or whose opinions are not appreciated. Any physician who assists in those operations should be subject to the same scrutiny as the doctors who faced tribunals at Nuremberg, as should any American politician, federal agent, or attorney who tries to force doctors down this road. The interesting thing is that the same attorneys who prosecute doctors for refusing to make this choice are themselves exempt from the same dictate. No attorney in America can be prosecuted for putting the public “at risk” by defending an accused client, no matter their guilt.
Strangely, a nation where lawyers are mostly the ones who create laws has concluded that lawyers should be completely exempt from the dictates they apply to others. What a shock. We don’t have the rule of law; we have the rule of lawyers. But they are not wrong to give themselves immunity. And the clergy. They have just failed to extend it to the ancient profession of medicine. This needs to change. The DEA prosecutes and convicts doctors today by convincing a jury that a patient was “at risk,” or that a physical exam was inadequate, or that a test was not acted on in a way the DEA wanted. They can accomplish all of this by applying the nebulous and undefined concepts of the usual practice of medicine and a legitimate medical purpose. These are not defined because the medical community has failed to issue an edict clearly defining them once and for all.
I suggest we rectify that failure once and for all by preparing amicus briefs to be filed in every federal court in America. The following has been gleaned from my personal knowledge and practice of medicine, as well as a historical review. I would appreciate your opinions.
The usual practice of medicine is hereby defined as completing the following steps.
That the physician spoke directly to the patient if the patient is capable of speaking, to the family members and others with personal knowledge of the patient’s history if they are not, or to the physician or other health care expert caring for the patient, documenting this fact even if not every word spoken is written down. This is important. (AI summarizers that are being tested now, I’ve experimented with one, could be very useful in the future but must be read carefully to ensure accuracy. I used to see the term “Dictated but not read” in physicians’ records in the belief that they were giving themselves some legal leeway. Like the doctor who had on his pain contract for the patients to sign, “I attest that I am not a law enforcement officer, agent, or informant,” it might do more harm than good. But I’m not an attorney.)
That the physician evaluated the patient’s physical status by securing vital signs when possible and inspecting the patient, at least visually, for signs of severe acute illness or by a careful review of other medical experts’ evaluations as documented in a medical chart. (This covers telemedicine and remote consultations. It also keeps us from needing to cut casts off of broken arms to shake them around and see if it’s really broken.) Law enforcement and their expert witnesses are forbidden to propagate what is or is not an adequate physical examination to a jury or any review board as long as these conditions have been met and its accomplishment documented with the pertinent negative and positive findings. With the understanding that not every step omitted from the documentation can be assumed as not accomplished. (This is necessary to combat the “if it’s not documented, it didn’t happen” fallacy. I’ve never read a chart that stated, “The patient walked through the door,” so by that precept, we would be forced to assume that teleportation got them into the office.)
That it is at the physician’s discretion to order any test and to act on that test in the manner they see fit. This will obviate the government ignoring all the MRIs, CT scans, and EMGs in a patient’s chart and insisting that the targeted physician should have ordered another one. It also obviates their ability to argue that a negative drug screen is “clear evidence of diversion” to a medically naïve jury when any knowledgeable physician knows that false negatives, fast metabolizers, drug holidays, PRN dosing, and labeling errors can cause the same result. It should also obviate the argument that we must “fire” any patient who tests positive for an unexpected or illicit substance. I just listened to my state’s pain committee tell a doctor that a patient on codeine testing positive for hydrocodone was clear evidence of trading one for the other. That is not the case. Codeine is metabolized by cytochrome P450 2D6 into morphine, which can then be back converted to hydrocodone, which is then converted to hydromorphone. Medicine is complicated, and while we should be suspicious, we should not be forced to jump to conclusions. Especially wrong ones.
That it is a physician’s absolute right to prescribe the treatment they think is best for their individual patient, and while their choices can be scrutinized by state medical boards, there can be no criminal charges brought against them unless it is proven that the doctor had positive criminal intent, defined here as prescribing to a patient with no legitimate medical need in exchange for sex, money, or some other tangible reward. Every doctor will practice medicine both for personal reasons and to provide for themselves and their family. Until medicine is socialized and we all start getting our meager checks, this is a fact. But there is a big difference between accepting payment to treat a patient, even when a narcotic is prescribed, and prescribing a particular narcotic to a patient because they paid you to make that decision. The former is everyone, the latter are, thankfully, a very sparse few, and those few should be called to account and atone. The DEA today cannot tell them apart.
That a legitimate medical need be defined as when a doctor has reason to believe that a patient suffers from a medical condition and prescribes a medication or recommends a treatment approved or commonly used for that condition. Period. If the patient reports pain, and the doctor treats them with a medication approved for or commonly used for pain, that is it. The same goes for anxiety. No arguing to twelve randomly chosen non-medical personnel that the risks outweighed the benefits in a criminal proceeding. If there are concerns, raise them to the state’s medical board. Only the states have the right to dictate the practice of medicine, according to the U.S. Supreme Court. Medical interpretations should not be left to the discretion of whatever politically appointed U.S. attorney or federal agent wants to make headlines.
Finally, if the DEA is convinced a physician is abusing their discretion, let them suspend the DEA-controlled medication certificate of that doctor until a hearing is held on the matter. Allowing the doctor to defend his practice in a civil hearing. No more kicking in clinic doors and shoving machine guns in the faces of patients in wheelchairs or forcing doctors to crawl from their homes on their hands and knees.
L. Joseph Parker is a distinguished professional with a diverse and accomplished career spanning the fields of science, military service, and medical practice. He currently serves as the chief science officer and operations officer, Advanced Research Concepts LLC, a pioneering company dedicated to propelling humanity into the realms of space exploration. At Advanced Research Concepts LLC, Dr. Parker leads a team of experts committed to developing innovative solutions for the complex challenges of space travel, including space transportation, energy storage, radiation shielding, artificial gravity, and space-related medical issues.
He can be reached on LinkedIn and YouTube.
