Is It Illegal To Prescribe Medication To Family Members

It would be hard to overstate the importance of medication compliance and persistence among patients. In fact, there are many different factors that contribute to non-compliance and discontinuation of medications including age, gender, ethnicity, health status, disease state, cost, etc. But perhaps one of the most significant reasons why people stop taking their prescribed medications is because they have been given too much by a physician, either incorrectly or unnecessarily.
In recent years, we have witnessed an increase in the number of Americans who abuse prescription drugs, particularly opioids such as Oxycontin, Vicodin, Percocet and others. According to a report from the Centers for Disease Control (CDC), approximately 2 million Americans become new daily opioid users each year. Among those newly diagnosed with opioid use disorder, about half had received at least one prescription for these drugs during their lifetime. Of course, this figure does not include all those currently being treated for opioid addiction who may also have been exposed to unnecessary prescriptions while under care of a medical professional. The CDC estimates that nearly three out of four persons who died due to drug overdose between 1999 and 2016 had used some type of prescription pain reliever within 30 days before death.
The role that physicians play in the problem has come into sharp focus recently, especially since several high profile cases involving doctors prescribing controlled substances for themselves or family members have led to criminal charges and/or disciplinary action against certain practitioners. One notable case involved Dr. David J. Newman, M.D., who was sentenced to 10 years in prison after he pled guilty to unlawfully distributing oxycodone to his son. Another involves Dr. Varsha Saran, M.D., whose license was suspended indefinitely following her arrest on federal felony charges related to distribution of hydrocodone to two separate individuals whom she referred to as “family.” A third doctor, James G. Balch, M.D., was arrested on multiple counts of conspiracy to distribute controlled substances for which he ultimately pled guilty to one count of mail fraud and one count of racketeering.
These types of incidents have prompted concern among both the general public and regulatory agencies regarding whether physicians should ever prescribe controlled substances for self or other family members. Although the answer to this question is far from simple, except in emergency situations where life or limb are threatened, inappropriate prescriptions can easily lead to adverse consequences. For example, according to the Drug Enforcement Administration’s website, “[i]nappropriate prescribing of controlled substances for personal consumption or other than legitimate medical purposes” can result in civil penalties of up to $25,000 per violation. Similarly, violations relating to the diversion of controlled substances can bring stiffer fines ranging from $250 to $2,500 depending upon the severity of the offense. These penalties do not even begin to address the possibility of imprisonment.
Although it is tempting to think that physicians could simply take more time when writing a prescription for controlled substances, the reality is that there is no way to know if the patient will actually follow through with the recommended dosage schedule without dispensing the medication. Furthermore, the risk increases dramatically if the patient is likely to share the substance with another person. This is exactly what happened in the case of Dr. Newman, who admitted to giving his son more than 100 pills of oxycodone over a period of several months. As a consequence, Dr. Newman lost his medical license and served almost five years in prison. Similarly, Dr. Saran lost hers even though she claimed that she never intended to divert any of the medication herself but rather shared it with others who needed it. She eventually agreed to surrender her medical license and avoid further prosecution. Finally, Dr. Balch faced a maximum penalty of $1.56 million dollars plus 20 years in prison as part of a plea agreement. However, he managed to get off relatively lightly considering how much harm he caused.
With so much at stake, it might seem like a good idea to require physicians to obtain written permission from every patient prior to issuing a controlled substance prescription. Unfortunately, although this approach sounds logical, there are practical problems associated with doing so. First, requiring documentation would create additional work for busy physicians who already face increasing demands placed upon them by insurance companies, hospitals, government entities and others. Second, it is often difficult to determine who is eligible to receive a controlled substance from a particular provider. For example, if you were trying to treat your wife who suffers from fibromyalgia, would you want to be told that you cannot see the same physician again just because she happens to suffer from rheumatoid arthritis? Third, requiring written authorization creates a situation whereby someone looking to commit a crime can easily manipulate a patient by asking him or her to sign something along the lines of “I agree to give my daughter/son/grandchild [fill-in blank here] all of my leftover meds.” Such requests would be completely contrary to ethical standards and legal requirements. Fourth, obtaining written consent is only meaningful if the patient understands what he or she is signing. And, unfortunately, most patients fail to read everything provided to them or ask questions to clarify anything unclear.
Fortunately, there are alternatives to requiring written authorization. Most states now allow physicians to issue controlled substance prescriptions via telephone with verbal confirmation of acceptance. This eliminates the need for written signatures and permits physicians to keep better track of who receives what. However, the main drawback of this approach is that it is much easier for unscrupulous providers to forge signatures and alter records. Therefore, it still remains important to make sure that the patient himself/herself has understood what is happening and agrees to go forward with treatment.
Another option is to develop policies that prevent physicians from dispensing controlled substances for self or other family members. This approach avoids the need to involve patients directly and instead relies on safeguards built into the system such as computerized tracking software and clinical decision support systems. However, this approach can introduce its own set of challenges. First, this requires that electronic data capture technology be implemented throughout an institution. Second, it is crucial to ensure that such systems identify and flag potentially problematic orders. Otherwise, they will end up clogging normal workflow processes and adding little value. Third, staff training plays an essential role in making sure that computers correctly interpret inputted information. Failure to train properly could lead to false positives or negatives.
Finally, it is worth noting that the best thing a physician can do to help reduce the risk of inappropriately prescribing controlled substances for self or other family members is to practice careful judgment each time a prescription is written. If there is any doubt whatsoever that the patient is seeking the medication for legitimate medical reasons, then the physician must refuse to fill the order. When this happens, it is very unlikely that someone else will step in and seek a similar prescription.
© 2017 by Steven D. Lavine MD. All rights reserved. Reprinted with permission from Health Affairs Journal – Volume 32, Issue 3, March 2018.

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