The question is important for practitioners because the patterns of painkiller misuse are the patterns that the DEA uses to assess whether a prescriber’s patients were using their medications therapeutically or for non-medical purposes.
Painkiller misuse by patients does not necessarily implicate the prescriber in criminal conduct. A patient who receives a legitimate prescription and who diverts or misuses the medication is a patient whose conduct reflects their choices, not the prescriber’s intent. The prescriber becomes legally exposed when the misuse is foreseeable, when the prescriber lacked the clinical monitoring infrastructure to identify it, or when the prescriber continued prescribing despite knowing or having reason to know that the patient was diverting or misusing the medication.
Dose Escalation and Early Refill Requests
The most common pattern of prescription opioid misuse begins with dose escalation beyond the prescribed schedule and early refill requests that reflect consumption exceeding the prescribed rate. A patient who is consuming their monthly supply of oxycodone in two weeks is a patient whose use rate is inconsistent with therapeutic dosing. The practitioner who refills the prescription early, who increases the dose in response to early refill requests without investigating the cause, and who does not document any clinical assessment of the early consumption pattern has failed to identify the misuse signal that their prescribing data contains.
The PDMP check that occurs at each prescribing encounter is the primary tool for identifying early refill patterns. A patient whose PDMP record shows that they filled the last prescription fourteen days after the previous fill had a thirty-day supply will have an early fill date that is visible in the PDMP data. The practitioner who documents PDMP consultation and notes the early fill pattern, even if the prescription is ultimately renewed with documented clinical justification, has engaged with the misuse signal rather than ignoring it.
Multi-Provider Use
Patients who obtain controlled substance prescriptions from multiple providers simultaneously, doctor shopping in the terminology of the regulatory framework, are patients who are obtaining more medication than any single prescriber would provide if they knew the full picture. The PDMP data reveals this pattern, and the practitioner who consults the PDMP before prescribing will identify patients who are receiving prescriptions from other providers.
The clinical response to multi-provider use is a direct conversation with the patient, documented in the record, in which the prescriber explains the risks of obtaining controlled substances from multiple providers and establishes expectations for single-provider prescribing as a condition of continued treatment. The prescriber who documents this conversation, and who documents either the patient’s compliance with the single-provider requirement or the clinical basis for continuing to prescribe despite multi-provider use, has engaged with the misuse pattern in a manner that reflects clinical judgment rather than commercial indifference.
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(212) 300-5196Selling and Sharing Prescriptions
Prescription diversion through selling and sharing is the form of misuse most directly relevant to criminal enforcement. A patient who sells their prescribed opioids to others has diverted controlled substances from their legitimate therapeutic purpose. The practitioner whose patients are identified as drug suppliers in separate drug trafficking investigations, who had patients who were arrested for selling pills, or whose prescribing patterns suggest that the medications were intended for distribution rather than personal use is a practitioner whose knowledge of the diversion becomes the most contested issue in the enforcement action.
Urine drug screening that reveals the absence of the prescribed medication in a patient who claims to be taking it is the most direct clinical indicator of diversion. The prescribed medication that is absent from the urine screen was not consumed therapeutically. The practitioner who documents the absent medication, addresses it with the patient, and makes a clinical decision about continued prescribing based on that assessment has engaged with the diversion indicator in a manner that reflects clinical oversight.
Non-Oral Routes of Administration
Prescription opioids that are misused are frequently consumed through routes other than the oral route for which they are prescribed. Immediate-release opioids may be crushed and snorted. Opioids that come in injectable form may be used intravenously. Extended-release formulations designed to resist tampering may be subjected to chemical extraction. These non-oral routes of administration produce faster onset and more intense effects than oral consumption, and their use reflects a pattern of drug-seeking behavior rather than therapeutic use.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
The prescriber’s legal exposure for patient misuse is not based on the fact that misuse occurred. It is based on what the prescriber knew or should have known about the misuse, what monitoring they had in place to identify it, and how they responded when the indicators were present. The prescriber who saw the signs and ignored them is in a different legal position from the prescriber who did not see them because a monitoring infrastructure was not in place to reveal them. Both may be investigated. The defense of each is different.
Clinical Response to Misuse Indicators
The clinical response to identified misuse indicators should be documented with specificity: what the indicator was, when it was identified, what the prescriber discussed with the patient, and what clinical decision was made in response. The decision to continue prescribing despite an identified misuse indicator should be supported by documented clinical reasoning that explains why the continued benefit of controlled substance therapy outweighed the identified risk. The decision to discontinue should be documented with equal specificity. Either decision, made with documented clinical judgment, is a defensible clinical choice. The absence of any documented response to an identified misuse indicator is the absence of clinical judgment where clinical judgment was clearly required.
