California Medical Board

The California Medical Board has announced another physician arrest for regulatory violations involving prescribing. The Board notes:

Medical Board of California investigation leads to
arrest of Santa Monica physician

SACRAMENTO — Detectives from LA IMPACT (Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force) along with the Medical Board of California investigators served an arrest warrant on August 24, 2012, on Ebrahim Sajedi, M.D. in Santa Monica, California. “The mission of the Medical Board is public protection, and this action reflects the Board’s ongoing commitment to that mission,” said Linda Whitney, executive director of the Medical Board.

The Los Angeles District Attorney’s office filed 12 felony counts of 11153 (a) Health and Safety code (prescribing medications without a legitimate medical purpose) as a result of the joint undercover operation conducted at Dr. Sajedi’s medical offices in Santa Monica by the Medical Board’s investigators and LA IMPACT detectives.

LA IMPACT received information that Dr. Sajedi was prescribing medications to patients for no legitimate medical purpose without a meaningful evaluation or proof that the patient needed the medications. During this investigation, four undercover Detectives/Investigators met with Dr. Sajedi, and during all four consultations Dr. Sajedi prescribed these undercover Detectives /Investigators medications such as Vicodin, Adderall, Celexa, Klonopin, Clonazepam, Alprazolam, Nuvigil and Restoril without a meaningful evaluation and exam and for no legitimate medical purpose.

Sajeda was taken into custody without incident.

Section 11153(a) provide:

A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.

The California Medical Board, like the medical boards of other states has Guidelines for Prescribing Controlled Substances for Pain. These Guidelines state:

Inappropriate prescribing of controlled substances, including opioids, can lead to drug abuse or diversion and can also lead to ineffective management of pain, unnecessary suffering of patients, and increased health costs. The Medical Board recognized that some physicians do not treat pain appropriately due to a lack of knowledge or concern about pain, and others may fail to treat pain properly due to fear of discipline by the board. These Guidelines are intended to improve effective pain management in California, by avoiding under treatment, over treatment, or other inappropriate treatment of a patient’s pain and by clarifying the principles of professional practice that are endorsed by the Medical Board so that physicians have a higher level of comfort in using controlled substances, including opioids, in the treatment of pain. These Guidelines are intended to promote improved pain management for all forms of pain and for all patients in pain….

Business and Professions Code section 2241.5 provides in part: “(a) A physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain. (b) No physician and surgeon shall be subject to disciplinary action for prescribing, dispensing, or administering dangerous drugs or prescription controlled substances in accordance with this section.”

However, this section does not affect the power of the board to discipline a physician and surgeon for any act that violates the law, including gross negligence, repeated negligent acts, or incompetence; violation of section 2241 regarding treatment of an addict; violation of section 2242 regarding performing an appropriate prior examination and the existence of a medical indication for prescribing, dispensing, or furnishing dangerous drugs; violation of section 2242.1 regarding prescribing on the Internet; failure to keep complete and accurate records of purchases and disposals of controlled substances; writing false or fictitious prescriptions for controlled substances; or prescribing, administering, or dispensing in violation of the pertinent sections of the Health and Safety Code….

The Guidelines include:

Guidelines

• History/Physical Examination
• Treatment Plan, Objectives
• Informed Consent
• Consultation
• Records
• Compliance with Controlled Substances Laws and Regulations

There are additional requirements as well.

Sometimes physicians come under disciplinary investigation because they have failed to conduct a sufficient history, including “documentation of the presence of a recognized medical indication for the use of a controlled substance.” Sometimes, as with medical spas, the enforcement hot button is inappropriate use of physical assistants or registered nurses.

Sometimes there are issues involving DEA licensure.

Medical board investigation is a serious matter requiring proper consultation with an attorney who understands the disciplinary process.

The Board states:

While it is lawful under both federal and California law to prescribe controlled substances for the treatment of pain – including intractable pain – there are limitations on the prescribing of controlled substances to or for patients for the treatment of chemical dependency (see Sections 11215-11222 of the California Health and Safety Code). In summary, a physician and surgeon must follow the same standard of care when prescribing and/or administering a narcotic controlled substance to a “known addict” patient as he or she would for any other patient.

The physician and surgeon must:

• perform an appropriate prior medical examination;
• identify a medical indication;
• keep accurate and complete medical records, including treatments, medications, periodic reviews of treatment plans, etc;
• provide ongoing and follow-up medical care as appropriate and necessary.

The Medical Board emphasizes the above issues, both to ensure physicians and surgeons know that a patient in pain who is also chemically dependent should not be deprived of appropriate pain relief, and to recognize the special issues and difficulties associated with patients who suffer both from drug addiction and pain. The Medical Board expects that the acute pain from trauma or surgery will be addressed regardless of the patient’s current or prior history of substance abuse. This postscript should not be interpreted as a deterrent for appropriate treatment of pain.

The Board has helpful information on its webpage, including with regarding to CURES reporting obligations for controlled substances.

Note that similar concerns can arise with regard to Internet prescribing, as the California Medical Board makes clear on its webpage, Internet Prescribing–Information for Physicians:

Notwithstanding the fact that there are legal and beneficial uses of the Internet in providing healthcare services (telemedicine or the filling of properly issued prescriptions), there has been renewed concern about the legitimacy of prescribing drugs via the Internet. At the same time, many consumers are routing copies of their spam e-mail to the Board’s attention to inquire if something in the law has changed.

The brazen offers selling Viagra, Vicodin and other drugs at discounted prices do appear to suggest that the drug market is wide open, if you want to purchase on the Internet.

What does the law say about this? The short answer: it’s illegal to prescribe without an appropriate examination. This requirement (Business and Professions Code section 2242) existed long before the Internet was created and is the cornerstone of why Internet prescribing is illegal when a legitimate physician-patient relationship does not exist….

Whether you are a physician trying to get compliance (regulatory) advice for your practice, a medical group or medical spa seeking legal counsel regarding standard of care, telemedicine, Internet prescribing, or integrative medicine, or a healthcare business analyzing laws that govern delivery of medical services, contact a healthcare attorney who has experience with both investigation and enforcement after the fact, and preventative legal advice and compliance so that disciplinary issues never arise.