Pain Relief and the DEA

October, 2006

Suzanne Wills, Drug Policy Chair

Last fall at our Drug Policy Forum Dr. Leland Lou, Chief, Pain Management Division, UT-Southwestern University Hospitals, had everyone’s attention when he said in any large hospital you “could count the chronic pain patients who are getting adequate relief on your fingers.”

The adversarial relationship between physicians who treat intractable pain and the Drug Enforcement Administration is an aspect of the drug war that is likely to affect us all. According to the American Medical Association’s position on pain management over 50 million Americans live with pain. "Pain of all types is undertreated in our society. The pediatric and geriatric populations are especially at risk for undertreatment. Physicians’ fears of using opioid therapy, and the fears of other health professionals, contribute to the barriers to effective pain management." Recently there have been two small developments that are positive for patients.

In 2004, Dr. William Hurwitz, a McLean, Virginia pain specialist, was convicted of drug trafficking and sentenced to 63 years in prison because 5-10% of his patients were misusing the painkillers he prescribed. In August, 2006, the U.S. Fourth Circuit Court of Appeals ordered a new trial. The appeals court found that the trial court had inappropriately instructed the jury not to consider Dr. Hurwitz's defense of acting in good faith. That is, that Dr. Hurwitz believed his patients.

The decision has significance beyond this case. If the appeal had failed, the precedent would have encouraged federal prosecutors to usurp the traditional role of state medical boards in determining and enforcing standards of medical practice.

Also in 2004, the DEA stated that the common practice of writing multi-month prescriptions was probably illegal and contributed to the abuse of prescription painkillers. Doctors began requiring chronic pain patients to come in each month for a new prescription. Doctors, patients and others sent more than 600 comments about policies on narcotic painkillers to the DEA, many of them strongly opposed to its position limiting refills.

In September of this year, the DEA proposed a formal rule that would allow doctors with patients who need a constant supply of morphine-based painkillers to write multiple prescriptions in a single office visit. Under the new rule, a doctor can write three 30-day prescriptions at a time -- two of them future-dated -- to be filled a month apart.

These developments are welcome, but are not a major change. Dr. Siobhan Reynolds, who created the Pain Relief Network several years ago to help defend pain doctors who she said were being unfairly arrested and prosecuted, said, "Ms. Tandy [head of the DEA] states here, as she has on many occasions, that doctors need not fear criminal prosecution as long as they practice medicine in conformity with what these drug cops think is 'appropriate.' If that isn't a threat, it will certainly pass for one within the thoroughly intimidated medical community."

Also see: “Pain Doctors: Criminals or Saviors?” January, 2004 and “The Pain Relief Quandary,” February, 2005 Voters.