IMPORTANT LESSONS FROM A PHYSICIAN'S CONVICTION FOR DRUG DIVERSION

Two large measures of comfort can be taken from the distressing conviction
of Dr. James Graves, a community physician in Pace, Florida, who was found
guilty on February 19 of one count of racketeering, four counts of
manslaughter, and five counts of unlawful delivery of a controlled substance.

First, although Dr. Graves claimed to be a pain management physician, the
prosecution contended that he was a drug diverter, and the jury's verdict
signifies their agreement with the prosecution.

The egregious nature of the evidence heard by the jury supports the
conclusion that competent and conscientious physicians need not fear
similar prosecutorial action, even if they frequently prescribe very high
doses of opioid analgesics for chronic pain patients. In my opinion, this
was not a groundless case contrived by an overzealous prosecutor who
misread the situation and prosecuted a caring but naive physician.

Second, I believe that the law enforcement community and the health care
regulatory community worked well together on the case, within established
legal authority, to achieve a just result. Success with this case
demonstrates that there is no pressing need to enact new laws that could
restrict physicians' ability to provide patients with access to necessary
medications, if the will exists to continue enforcement of current laws
against those health care providers who abuse the system.

Dr. Graves reportedly prescribed a combination of Soma, Xanax, Lortab and
OxyContin for most of his patients. Dubbed the "Graves Cocktail" by local
pharmacists, this combination of medications was prescribed outside the
usual course of professional practice, according to the jury's verdict.
Testimony at trial indicated that patients crowded the parking lot outside
Dr. Graves' office, waiting for their turn to pick up their prescriptions.
The prosecutor referred to this activity as a "tailgate party."

Not all of Dr. Graves' patients were critical of him. Some patients
expressed appreciation for his willingness to provide pain medications for
them, particularly since their primary care physicians were unwilling to do so.

Because pain is often under treated, legitimate patients are sometimes
forced to seek the assistance of practitioners who take no medical history
and conduct no physical examination. The reluctance of primary care
physicians to meet patients' needs for pain medications may push patients
toward such unlawful practices.

Physicians who follow minimal standards for prescribing controlled
substances to treat pain have been safe-harbored from prosecution in states
that have adopted model rules developed by the Federation of State Medical
Boards. Florida is one such state. To avoid regulatory problems, physicians
should do the following: take a complete patient history, conduct a
physical exam, develop a treatment plan, obtain informed consent,
periodically review the care plan, consult a specialist when necessary,
maintain complete and accurate medical records, and comply with controlled
substances laws.

Although this is a long list of things to do, it is consistent with
standard medical procedures, and is a familiar process for all physicians.

Recent concerns about inappropriate prescribing of controlled substances
generally, and OxyContin specifically, have led to the introduction of a
bill in the Florida legislature that would create a large scale electronic
surveillance system for controlled substances dispensed by Florida
pharmacists. Under the proposed plan, the Department of Legal Affairs would
scrutinize the pattern of use of controlled substances by Floridians, and
would decide from this information what physicians, pharmacists or patients
to investigate.

In light of the recent success in prosecuting Dr. Graves, one must question
whether, given the economic cost of such a program, and the chilling effect
the program could have on appropriate prescribing by physicians, such
intrusive legal oversight of patient records is warranted.

Any time a licensed health care professional betrays the public's trust
there is understandable cause for concern about the system. Bad doctors
make good doctors look bad. Yet the take-home message from this case is
that the system works.

Physicians need not fear prescribing necessary pain medications for
patients. Pharmacists need not fear dispensing them. Patients need not fear
taking them. Human suffering can be relieved through appropriately
prescribed pharmaceutical products, and the diversion of controlled
substances to illicit uses can be prevented at the same time.

(The writer is professor of Pharmacy Health Care Administration at the
University of Florida College of Pharmacy. He is a member of the Florida
Partnership for End-of-Life Care, and a Mayday Scholar with the American
Society of Law, Medicine and Ethics (ASLME). For information about ASLME
pain policy projects, go to http://www.aslme.org/)