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When cause of death is opioid overdose is it murder or malpractice? The case of Dr. Tseng

oxycodoneIs a doctor guilty of malpractice or murder or is the patient responsible for his or her actions when there is a death by overdose?

This is the question that a jury in Los Angeles will have to decide as they are presented the facts in the case of Dr. Lisa Tseng.

The prosecution’s version is that Dr. Tseng handed out opioids like candy without any regard for standard of care. Over the years at least 12 of her patients died from overdoses. She is now standing trial for three deaths. One of the deceased, Joey Rovero, 21 and an Arizona State University student, apparently traveled from Arizona with frat buddies to get a prescription from Dr. Tseng.  He received almost 100 30-Roxycodone tablets. The Prosecution says she wrote an average of 25 opioid prescriptions a day.

Dr. Tseng’s defense thus far seems to be that she was trying to care for people with pain, was ill prepared to do so,  and if people take medications irresponsibly then it is not her fault.

Responsible prescribing is the duty of every physician and whether you are giving birth control pills, medication for epilepsy, or treating pain it doesn’t really matter. Some medications are right for some people and others are not. With opioids, however, you have the added issue of recreational use, addiction. and the Drug Enforcement Agency. As a doctor I view the special pads for controlled substances as warning lights that are always on, like a set belt light during turbulence on an aircraft. Needing to use a special prescription pad helps me to consider everyone of these prescriptions just a little more because they do require a greater level of scrutiny.

Some patients will use their opioids recreationaly. Let’s be honest, no one snorts birth control pills or gives their water pills to friends at parties. No kids looks in their mother’s medicine cabinet and thinks I have to try that beta-blocker.

Occasional exposures, stolen from a medicine cabinet or for post operative pain, can nurture addiction (the unwillingness to stop the medication knowing it is causing harm). When life is tough, as it can be, some people turn to chemical coping. Sometimes it was a prescription for chronic pain but the use became concerning and so the doctor stopped the medication, but the patient found a way to keep getting them. Headaches or visits to the emergency department. They became a doctor shopping expert.

Opioids also profoundly impact health even when used appropriately. They can paradoxically make pain worse, cause constipation which can become part of the pain problem, and they have a terrible effect on hormones. I haven’t included sedation as an opioid-specific issue as a lot of drugs have this side effect.

So opioids are a big deal. I was once a far more liberal opioid scribe than I am now. Fifteen  years ago we were all “under treating” pain and so we prescribed more and more opioids. That is what our professional societies told us. I saw almost no one get better or lead a more productive life. I also heard of more lost prescriptions than I can count. Pain scores rarely budged, but doses gradually escalated. I would never keep someone on a beta blocker if it wasn’t controlling their hypertension, so why would I keep someone in an opioid if it wasn’t lowering their pain score? If 240 Norco and 60 OxyContin a month isn’t helping your pain dramatically then you have opioid resistant pain. Somewhere along the line we confused treating pain with prescribing opioids.

About ten years ago I decided that chronic opioids were not for my practice. The percentage of people in my 15+ year career in chronic pain who have truly benefited from them, meaning a significant reduction in pain scores witha  corresponding improvement in functionality, is very small. I have had more patients than I can count with chronic pain tell me, “You know they don’t really work, they just make you care a little less and I’d rather not feel foggy if that is the only benefit.” Those patients typically have a small supply on hand for very bad days.

However, some people end up on chronic opioids for a variety of reasons. While a small percentage truly benefit it is important to remember that we have a health care system where it is easier to get your insurance to pay for back surgery than physical therapy. Most patients with chronic pain are not afforded the opportunity to have their depression optimally managed or their post traumatic stress disorder treated. In addition, in some pain practices 30-50% of patients have borderline personality disorders and these patients are very distress intolerant. Every pain is perceived as a 9 or 10 out of 10. It is a very challenging pain to manage. Add in inadequately (or typically untreated) anxiety and the neuroinflammatory burden of obesity and you start to understand why it is very hard to make a lot of people with chronic pain better and you see how patients and doctors might turn to opioids. To top it all off we live in a society where instant gratification is often not soon enough. Many people want surgery to cure pain and are less interested in physical therapy, home exercises, and Feldenkrais. And if they are interested in those things it is unlikely they’d get the time off work to do them!

The best person to manage this group of people who end up on chronic opioids is a board certified pain physician with access to a pain psychologist and a pain pharmacist. But let’s be real and understand this is rare. In addition, talking with people about managing pain pays very little, but epidurals pay great (who cares that trials show little benefit!).

So for many people who end up on opioids for whatever reason wind up under the care of their family doctor, internist or gynecologist. This doctor is almost always doing their best to keep the opioids from escalating to minimize harm, but keeping enough on board to prevent their patient from ending up repeatedly in the emergency department where they are at high risk of getting unnecessary therapies and tests and iatrogenic complications. It’s a very hard job.

And so that brings me back to Dr. Tseng and her 25 opioid prescriptions a day.

There is no scenario where I can see giving a 21 year man from out of state an opioid prescription of any kind unless he was in the emergency room with a traumatic injury. It doesn’t sound as if Dr. Tseng was anyone’s family doctor or internist trying to keep people afloat. Whether she started out with good intentions and was the most gullible person on the planet or this was truly a pill mill will be pretty easy to tell from a record review.

But given how we treat pain, or rather how we don’t really treat pain, in this country I’m not surprised Dr. Tseng exists. I’m actually surprised there aren’t more of her.

 

 

 

 

 

 

Discussion

25 thoughts on “When cause of death is opioid overdose is it murder or malpractice? The case of Dr. Tseng

  1. I have followed you for a few years doc. This particular post rang poignant to me. Well said – we definitely need more properly trained pain physicians. Keep telling the truth doc – you are a minority that needs to be heard 😊

    Posted by George Tait | September 2, 2015, 6:35 pm
  2. It was easier for me to get a narcotic for migraine pain than to get the non-narcotic that actually works for me. One was cheap and the other wasn’t, so guess which one the insurance company was willing to pay for…

    Posted by Melanie McNeil | September 2, 2015, 7:29 pm
  3. As a nurse I could not agree with your comments enough! If I could spend more time with patients- moving, walking, re-positioning, warm blankets, talking, guided meditation- many could be given far fewer opiods than they are currently taking. The biggest driver of over medication is fear of uncontrollable breakout pain. If anyone was given time to talk to patients about their concerns, when is the best time to take medication, how to stagger life needs with dosing- patients would go home happier, more confident and in less pain and on less medication. But hospitals cut nursing staff so close we are just walking pill dispensers/chart completers. Like physical therapy, hospitals can’t charge for therapeutic communication, massage, meditation or alternatives to pressing that button.

    Posted by cmrnga | September 2, 2015, 7:35 pm
    • For the most part, I agree with you and with the points raised by Dr. Gunter. However, she claims that: ” Let’s be honest, no one snorts birth control pills or gives their water pills to friends at parties. No kids looks in their mother’s medicine cabinet and thinks I have to try that beta-blocker.” Uh, well … not so! Ever heard of “Pharming” and Pill Parties? (See: http://contemporarypediatrics.modernmedicine.com/contemporary-pediatrics/news/pharming-pill-parties-can-be-deadly-teens?page=full) There are all kinds of ways that patients –and those intent on getting a thrill from drugs — can game the system. Yes, physicians need to prescribe responsibly, but expecting a physician, any physician, to function as a nanny is going too far. Leave the nanny business to the insurance companies. They seem to enjoy that kind of oversight.

      Posted by T. Quillen | September 3, 2015, 9:09 am
  4. The State of Colorado radically changed its rules on opioid prescription in large part as a response to a single neurosurgeon in my home town. I don’t doubt his good intentions, but as he learned when his license was suspended, good intentions are no substitute for competence.

    Posted by Dean Barnett | September 2, 2015, 8:27 pm
  5. Agreed. What we do need is EFFECTIVE pain management, though. Not necessarily opioids, as you point out: working in healthcare (though not a physician), I’ve seen many cases where physiotherapy and/or massage therapy have alleviated pain that opioids covered up but didn’t actually fix… which is fine for people who can afford 90$/massage therapy appointment, but if your insurance doesn’t cover it but WILL cover pills, well… we know where people default.

    That said, there ARE cases where opioids do help. I have a friend who is partially-functional with opioids, but bed-bound for 75% of the week without them. Personally, I have a small stash on hand for when my migraine medication doesn’t kick in (effect with dilaudid: high as a kite for 3 hours, then fine. effect without dilaudid: throwing up at the slightest hint of light or smell, and then passing out, for a minimum of 2 days. I don’t personally enjoy the being high part of things, but I will take it over a migraine ANY DAY.)

    Posted by Kitsune | September 3, 2015, 5:48 am
  6. Well said, Dr. Gunter. Reading this thoughtful article has made me examine my opioid prescribing practices.

    Posted by Melanie J Wood, PA-C | September 3, 2015, 8:15 am
  7. The DEA keeps a list of criminal prosecutions of doctors who lost their DEA registration as a result: http://www.deadiversion.usdoj.gov/crim_admin_actions/doctors_criminal_cases.pdf

    There are at least two prior instances of physicians getting convicted of murder for improper subscribing. Dr. Harrison Bass of Las Vegas was convicted of second degree murder in 2008 for a death related to running what sounds like a mobile pill mill. Dr. Noel Chua of Georgia was convicted of felony murder in 2007 for illegitimately prescribing “multiple controlled substances” to the victim.

    Additionally, Dr. James Bischoff of Montana pled guilty to charges including negligent homicide in 2006 and Dr. Jesse Henry of New Mexico pled guilty in 2004 to charges including seven counts of involuntary manslaughter related to at least three deaths linked to over-prescribing of multiple opioids.

    Posted by Dan | September 3, 2015, 11:52 am
  8. I was given a orange and white bi-layer tablet muscle relaxant with aspirin following 3 fractured vertebras when a truck ran a red light at my age 24. It was not noticeably effective. That was the treatment. Over the years everything was tried. I did PT. the chiropractor helped more. At the pain clinic they got rid of everything I had been formerly shown and went to a different set of stretches and they helped after 20+ years of the wrong PT. A few things helped a little but nothing was substantial relief.The pain subsided a bit after 6 months of total misery for a while but got much worse in the years following. At 52 I was prescribed morphine and it was a divine gift of relief. It wasn’t total or anywhere near it but made the difference between 24/7 total misery and being able to sleep and live a life some. I am one of those who benefit hugely from the opioid, with a constant dose for the last 11 years following a 40% reduction after solving some problems that affected pain. What scares me is that going back to hell if they decide they can no longer prescribe morphine for chronic pain.

    Posted by Freddd | September 3, 2015, 1:18 pm
  9. I guess I have to be the pain patient that has a board-certified pain doctor (anesthesia). She prescribes opioids for me and epidural steriods – and they all work. She also prescribes massage therapy, physical therapy, exercises, as well as other alternative medicines. I’m working a fulltime job, teaching at the graduate level part-time, and just finished my own doctorate.

    My pain is controlled most of the time, tho I use breakthrough meds occasionally. In six years, I’ve never lost a prescription nor have I ever abused my drugs. Those drugs help me live a productive and mostly enjoyable life, with the help of a very good doctor. My pain is usually 2-3 —when it gets up to 5-6, I take breakthrough meds —and if it hits 7-8, I call her. When it’s 7-8, all I can do is deal with the pain —and I really want to do more with my life than that!!

    And, given the precautions she takes (my scripts are dated ‘can’t be filled before ….xxx date’ and ‘must be filled at Pharmacy XXXXX at address, street, town, & urine tests every time I come in), I feel for her. She lives with the DEA hanging over her head all the time….and still chooses to help folks like me.

    And every time I see a program about someone who goes to a pain doctor and comes out with a script, laughing to their friends———— I get mad. Not all chronic pain patients are like that. Some are like me — dealing with horrible pain and trying to live as comfortable a life as possible.

    Posted by Melissa Barthold | September 3, 2015, 2:57 pm
    • And one thing I meant to say: I don’t get high from the opioids — they don’t make me feel good or flying or wonderful —-it just makes the pain not hurt so much. I’m betting I have a very non-additive personality (thought when I think of carbs and me ….I’m not so sure !) But…at any rate, narcotics don’t make me feel wonderful. They just make me not hurt so much.

      Posted by Melissa Barthold | September 3, 2015, 3:02 pm
  10. The real “opioid addicts” are those who dispense and sell or otherwise greedily profit from them — as with every other thinly disguised euthanasia method that is being or has been introduced/fostered in this society. It’s time to “cure” the root causes of THAT.

    Posted by Claire | September 3, 2015, 3:16 pm
  11. Yet another problem with very narrow networks–they make it hard for patients to get referrals to qualified pain specialists when they need them. Multimodal analgesia really works: combining nerve blocks when appropriate with non-narcotic pain meds, and carefully managed opioid use. I’m just had a spinal compression fracture, which is NO FUN at all, and will be visiting a physician anesthesiologist who specializes in pain management just to make SURE I don’t get caught in the opioid/chronic pain cycle. Great post by Dr. Gunter.

    Posted by Karen Sibert MD (@KarenSibertMD) | September 4, 2015, 7:28 am
  12. Why don’t you try full body crps 2 with retractable pain w/o opiates and THEN call me. You people have NO clue the dehabilitation of function. Opiates when used appropriately are not only safe but also a Godsend for those of us with 4 limb atrophy and degenerative bodily systems.

    If Drs can’t Dx retractable pain patients then he or she has no business practicing medicine.

    Richard
    Stage 3/CRPS 2
    Full body-spine + all limbs

    Posted by Richard Askew | September 6, 2015, 4:05 am
    • Do you mean “intractible” pain? CRPS is a controversial diagnosis. Many second opinions and independent medical examinations show psychosocial features, non-psysiologic test responses, and other exam findings that leave the specialists scratching their heads, I have even seen self-inflicted atrophy. But in 25+ years in workers’ compensation, I don’t think I have ever heard of “full-body” CRPS. “Full-body” symptoms, I would think, would negate a diagnosis of CRPS. Unfortunatley it seems iotrogenic disability is all too common, especially among workers’ compensation patients or other circumstances where secondary gain could be an issue. This is where we find a lot of CRPS patients. More medical care is not the answer in this circumstance. Not saying it is yours, but you might give it some thought, and give some thought to cognitive behavoiral therapy.

      Posted by Laurel Gunderson | September 8, 2015, 12:59 pm
      • cme.dannemiller.com/articles/activity?id=320

        Perhaps you should speak from an educated perspective before you drop your psych mumbo jumbo. RSD is extremely complex and even those Drs at the tip of the spear can’t agree on its properties.

        All I know is that I have dramatic atrophy in all 4 limbs with high esr, pos Ana, intercostal neuropathy, PVD and in breakthrough pain daily. I live a healthy lifestyle w diet and 2 hrs excercises daily. Try going to the gym after you break a leg then have to use it.

        Pls don’t act as of you know it all. Your misinformation hurts those whom need a hug.

        Respectfully,

        Rich

        Posted by Richard Askew | September 9, 2015, 3:31 pm
  13. There are many many more of her. You just don’t hear about them.

    Posted by dontaskme (@SpineCareDoc) | September 13, 2015, 10:23 pm
  14. Reblogged this on dranizkhalfan and commented:
    Excellent post by Dr Jen Gunter.
    Could this be the start of crossing over from malpractice to murder.

    Posted by dranizkhalfan | September 26, 2015, 3:13 pm
  15. Hello, rather late to this but just wanted to say, I’m diagnosed with BPD (which I don’t agree with, but isn’t that always the case?!) and I do not automatically score all pain as a 9 or 10. In fact I’m one of those who has had codeine occasionally and decided not to bother anymore as it indeed just appears to cause brain fog rather than reduce pain.
    I’m commenting because the assumptions made about someone diagnosed BPD, combined with a general dismissal of women’s pain led to me being in agony with endometriosis every month without adequate pain relief. I was told my pain was “normal” (eventual laproscopy showed otherwise) and assumptions I was exaggerating.
    Am In the UK so influences in healthcare may be rather different, but women’s pain being dismissed, or viewing women as exaggerating pain (and implying psychiatric/personality issues), seems to be an issue.
    I like the blog – arrived here after googling the Livia tens machine rather sceptically!

    Posted by Becca | August 20, 2016, 8:25 am

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