HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, December 16, 2011

Michael Jackson's Death Exposes Danger of Over-Broad Physician Prescribing Powers

This just in from Professor Jennifer S. Bard who will be returning as a guest blogger in the first part of the new year:

BardA jury in California has imposed criminal responsibility for Michael Jackson's death on a doctor who administered, in Mr. Jackson’s bedroom, a highly dangerous and potent drug never intended to be used outside of an operating room even though he had no training or experience in anesthesiology.  This, thank goodness, is an unusual event. Perhaps lost in the saturation coverage of the trial is something that’s not unusual: Dr. Conrad Murray’s actions in prescribing and administering the drug were completely legal.

Every day, every hour, that medicine is practiced in the United States a physician is most likely prescribing a drug to someone in a dose, for a condition or to a patient never contemplated by the Food and Drug Administration (FDA) which has the sole authority of approving drugs for sale.  There are many reasons for this, and most of them good ones, but if anything positive can ever can come out of another’s death, Michael Jackson’s could make us all safer by revisiting this outdated potentially highly dangerous situation.  No one wants to hamper physicians’ efforts to relieve the pain and suffering caused by illness and injury nor would it be fair to place undue restrictions on the majority of doctors who prescribe responsibly based on the extremely poor judgment of the few, but there is no reason why every physician should be able to prescribe every drug. 

The problem of unrestricted prescription powers is amplified by the explosion of available drugs.  We are a nation of drug takers.  Fifty-nine percent of all Americans, man, woman and child, and eighty-six percent of all seniors, take a prescription drug every day.  In large part, this is a problem that comes from an over-abundance of innovation.  In fact, there is no completely reliable count of the number of prescription drugs available to physicians but close estimates suggests between 10,000-20,000.  We all benefit from remarkable drugs that ward off cancer, maintain normal heart function, and strengthen fragile bones.  

Equally, no one would want to return to the days when few appreciated the importance of pain management and many lived, and died, in unnecessary agony, but the result, according to the Centers for Disease Control (CDC) is “at least a 10-fold increase in the medical use of opioid painkillers during the last 15 years.”  Prescription drugs have surpassed illegal street drugs in terms of unintended injury and death.  According to the CDC, "[d]rug overdose deaths were second only to motor vehicle crash deaths among leading causes of unintentional injury death in 2006 in the United States."  Scientific America reports that in that same time period, there has been a 65% increase in hospitalizations due to prescription drug overdose. 

The reason for providing unrestricted medical licenses is historical.  One hundred years ago when states started licensing physicians, there were far fewer drugs available and physicians were far less specialized.  As the number of drugs available has expanded and medicine has grown infinitely more complex, however, there has been no corresponding change to the medical licenses granted by each individual state.  Without exception, they bestow a general privilege to practice any kind of medicine and, within, the confines of laws intended to control the street sale of narcotics, prescribe any kind of drug.

Keeping hospital based drugs in the hospital is a reasoned and measured first step towards promoting greater safety.  Indeed, the current health care financing system which relies heavily on drug formularies has effectively already imposed for reasons of cost-cutting the kinds of limits proposed here for reasons of safety.  Almost every measure to limit the prescribing powers of physicians is met by dire predictions of what would happen if “the government” tried to interfere with the doctor-patient relationship.  But this makes no more sense than to speak of unwarranted government interference with the food-supplier/consumer relationship.   There is no physician who needs the immediate ability to prescribe any drug on the market.  Placing limits on the availability of some of the most dangerous is a measured response to prevent future tragedies.

- Jennifer Bard

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