206 Journal of Pain and Symptom Management Vol. 29 No. 2 February 2005

Special Article

The Risk of Disciplinary Actionby State Medical BoardsAgainst Physicians Prescribing OpioidsJack Richard, MD and Marcus M. Reidenberg, MDDepartment of Medicine (J.R., M.M.R.) and Departments of Pharmacologyand Public Health (M.M.R.), Joan and Sanford I. Weill Medical College of Cornell University,New York, New York, USA

AbstractConcern of physicians about being disciplined for prescribing opioids for patients in pain isone cause for undertreatment of pain. This study was done to assess the actual risk ofbeing disciplined by state medical boards. A review of records of actions by the New YorkState Board for Professional Medical Misconduct for 3 years and of all medical boards inthe United States for 9 months was done to determine this risk. New York State, with7.8% of U.S. physicians, had 10 physicians disciplined annually related to overprescribingopioids, while the total for the entire U.S. was 120 physicians annually. Most physiciansdisciplined had multiple violations in addition to overprescribing controlled substances. Inthe national sample, 43% were prescribing for themselves or for nonpatients, 12%prescribed for addicts without addressing the patients’ problems of addiction, 42% hadinadequate records, 19% prescribed without indication for opioids, 13% were incompetentin additional ways, and 8% were having sexual activity with patients. Not a singlephysician, for whom information was available, was disciplined solely for overprescribingopioids. The actual risk of an American physician being disciplined by a state medicalboard for treating a real patient with opioids for a painful medical condition is virtuallynonexistent. J Pain Symptom Manage 2005;29:206–212. � 2005 U.S. Cancer PainRelief Committee. Published by Elsevier Inc. All rights reserved.

Key WordsDisciplinary actions, state medical boards, opioids, physicians

IntroductionThe undertreatment of both acute and chro-

nic pain has been well documented.1-5 Multiplebarriers to improving the treatment of acute

Address reprint requests to: Marcus M. Reidenberg, MD,Dept. of Pharmacology, Box 70, Weill MedicalCollege of Cornell University, 1300 York Avenue,New York, NY 10021, USA.Accepted for publication: May 21, 2004.

� 2005 U.S. Cancer Pain Relief CommitteePublished by Elsevier Inc. All rights reserved.

0885-3924/05/$–see front matterdoi:10.1016/j.jpainsymman.2004.05.009

and chronic pain have been identified.3,6–8

One of these barriers is the perceived substan-tial risk of disciplinary action by medical licens-ing authorities against physicians who prescribeopioids, particularly for patients with chronicnonmalignant pain syndromes. A survey of NewYork State physicians by the Ad Hoc Committeeon Pain Management of the New York StatePublic Health Council in 1997 found that 58%of them were “moderately concerned” or “veryconcerned” about the possibility of investiga-tion by a regulatory agency if they wrote

Vol. 29 No. 2 February 2005 207State Board Disciplinary Actions

prescriptions for opioids for patients withchronic nonmalignant pain. Forty-one percentwere just as concerned if they wrote for opioidsfor acute pain in ambulatory patients.9

The Ad Hoc Committee on Pain Manage-ment then undertook a study of the processand the results of disciplinary proceedings inNew York State related to the prescription ofcontrolled substances during the period from6/9/94 to 7/31/97. Of all the 1025 disciplinaryactions taken, 26 (2.5%) were based on im-proper prescribing of controlled substances.Other charges associated with these actions in-cluded misconduct such as issuing prescriptionsin fictitious patients’ names and failing to takeand record pertinent medical histories, or todo and record pertinent physical examinations.No physician was disciplined solely because ofthe amount of controlled substance prescribed.

The President of the American College ofPhysicians in testimony to Congress stated:

“Studies have shown that government regula-tions are one of the barriers to effective paintreatment. According to a 1998 survey donefor the New York State Health Commis-sioner, physicians ‘may be concerned that ag-gressive pain management using controlledsubstances could be misconstrued as inap-propriate prescribing and could lead to [dis-ciplinary] proceedings.’ The report went onto say ‘the fear of possible disciplinary actionsresulting from the use of controlled sub-stances influenced physician practice in a waythat impedes patient access to effective treat-ment.’ This concern is not unfounded. Arecent report cited cases in Florida andArkansas where physicians who prescribelarge doses of controlled substances for thelegitimate purpose of treating pain were disci-plined without any evidence that the phy-sicians had prescribed excessive amounts ofopioids. Although these cases were eventuallyoverturned by the courts, they create a cli-mate of fear for physicians.” 10

Surveys of Wisconsin physicians,11 oncolo-gists,12,13 and primary care physicians13 all findfear of disciplinary action a barrier to theirprescribing the analgesic regimen that theywould otherwise prescribe for patients in pain.A review of the disciplinary orders of theWisconsin Medical Board from mid-1996–1998

found 29 actions against physicians for prescrib-ing controlled substances, including but notlimited to opioids.14 The specific violations werenot described in the paper.

In recent years, much work has been doneto bring the concepts of modern pain man-agement into the decision-making process ofthe medical licensure authorities.15,16 The Fed-eration of State Medical Boards has devel-oped model guidelines for treatment of pain,in part to address physicians’ fears.17 This effortto bring the current concepts of pain manage-ment to state medical boards may have helpedmake the actual risk of disciplinary action muchless than the perceived risk. This study was todetermine the actual risk of disciplinary actionagainst a physician by a state medical board forprescribing opioids for patients in pain.

MethodsUsing the Professional Misconduct and Physi-

cian Discipline web site of the New York StateDepartment of Health, all disciplinary actionstaken against physicians by the New York StateBoard for Professional Medical Conduct werereviewed for the three-year period, from 7/1/99 to 6/30/02. Those cases in which the mis-conduct description contained any referenceto overprescribing of controlled substances, in-appropriate prescribing, or any similar phrase,were evaluated in more detail. This evaluationconsisted of reading the Board Order and State-ment of Charges, including the factual allega-tions, which usually contained a descriptionof the misconduct. Also noted was whether thedisciplinary action was the result of a complaintor charge originating in New York State andinvestigated by the New York State Office ofProfessional Medical Conduct (OPMC), orwhether it was either the result of a disciplinaryaction taken in another state against a physicianwho held a New York State license, or the resultof a criminal conviction in a matter notnecessarily related to the practice of medicine—cases known as “referrals.” Referrals wereincluded in the New York State study to havean adequate sample but not in the U.S. studyto avoid counting an action against a singlephysician more than once.

Determinations were made of the totalnumber of disciplinary actions and the number

208 Vol. 29 No. 2 February 2005Richard and Reidenberg

of such actions in cases which involved overpres-cribing of controlled substances. Althoughthis study attempted to look at disciplinary ac-tions for the alleged overprescribing of opi-oids, the factual allegations in the Board actionsoften did not specify “opioids” but referred to“controlled substances.” Inclusion of these casesin the overprescribing totals likely resulted inlarger numbers than would have been foundif only opioids had been considered. Wherespecific medications or classes of medicationswere mentioned, cases involving prescribingonly benzodiazepines or barbiturates, but notopioids, were not included. Also tabulated incases of overprescribing were other forms ofmisconduct noted in the factual allegations andconclusions of the Board such as negligentpatient care, inadequate records, and drug useby the physician, etc.

After review of the data obtained in the NewYork State study, the authors applied thisreview methodology to a national database. TheFederation of State Medical Boards has as mem-bers the medical boards of all of the states inthe United States and its possessions, and 13state boards of osteopathic medicine. The Fed-eration operates the Federation Physician DataCenter, which collects and records informationabout all disciplinary actions taken against phy-sicians by the state boards. This Center main-tains paper records, which include the type ofdisciplinary action, the date of the action, thestate medical board or licensing agency thatinitiated the action, and the reason the actionwas undertaken. The descriptions of the actionsvaried from state to state but usually includedthe charges, a brief summary of the factualallegations, and the conclusions of the board.The Federation made available files about disci-plinary actions involving controlled substancesreported to them by member boards for theperiod between 1/1/02 to 9/30/02. Thesepaper records were reviewed by the authors forthe same information sought in the New YorkState study.

The numbers of violations and actions in ourstudy may appear to be different from pub-lished data from the boards. Several violations(such as failure to do or document history, pre-scribing without valid indication � 2 violations)can be identified in the record of a single hear-ing about one doctor. Furthermore, to simplify

our report, we have grouped several similar vio-lations reported by the board as if it were asingle violation. For example, prescribing forfictitious patients, for non-patients, and forfamily members without a doctor-patient rela-tionship being established and documented arethree different violations but are lumped to-gether since these frequently indicate a physi-cian prescribing for his/her own use. For thisreason, the number of violations in our classifi-cation is smaller than the total number of viola-tions reported by the boards.

Several actions (such as suspension of license,remedial education, and a fine � 3 actions) canbe taken for a single violation. Therefore, thenumber of physicians receiving disciplinary ac-tions is smaller than the number of disciplinaryactions reported.

Tabulations included the identification ofthe physician, the state in which the action oc-curred, the date of the action, and the descrip-tion of the misconduct. Actions by a state boardthat resulted from the action of another stateboard were not included in the national figures,as this would have resulted in tabulating thesame occurrence more than once.

The violations (and an example of each) wereclassified as:

1. Physicians known to be addicted and/orself-prescribing or prescribing for ficti-tious patients, non-patients, and familymembers. (Four different violations butall are included in this one group.)

Example. Doctor who prescribed meperidinefor own use; doctor who prescribed hydroco-done for spouse to maintain spouse’s addic-tion and also wrote fictitious prescriptions tocover this.2. Sexual relations with patient(s).Example: Doctor had sex multiple times withwoman in office, home and motels. He pre-scribed drugs, including opioids, for her withno record of prescribing these or any recordof a medical need for them.3. Prescribing without seeing patient.Example: Patient with recurrent herpessimplex was seen once and prescribedVicodin for 5 consecutive months withoutrevisitation.4. Failure to take history and/or do physi-

cal examination.

Vol. 29 No. 2 February 2005 209State Board Disciplinary Actions

Example: Doctor prescribed opioids for“lumbar radiculopathy” with no recorded his-tory, physical examination, or laboratorytests or imaging studies. (Billing records butnot medical records could be found. Thisdoctor had other similar patients, one ofwhom died of an overdose of opioids.)5. Prescribing for known addicts or people

with drug seeking behavior without ad-dressing the problem.

Example: Doctor prescribed for abusers with-out records documenting “for whom he wasprescribing controlled substances” or “a ther-apeutic purpose for which the drugs werebeing prescribed.” (This doctor also had bar-biturates in his own urine.)6. Prescribing without valid indication.Example: Prescribed a benzodiazepine andhydrocodone to patient without diagnosis.Patient died of multiple drug intoxication.Prescribed inappropriately to another 20patients.7. Failure to maintain adequate records or

documentation.Example: Doctor practicing in hospital hadclosed office years earlier. He continued toprescribe for 15 patients, phoning in renew-als. Records were cards with inadequatehistories or physical examination notes.The drugs and dosages were identical fromone patient to the next.8. Prior disciplinary action for similar mis-

conduct, criminal conviction or fraud, orno DEA number.

Example: Prescribed high doses of opioidsand benzodiazepines “without medical justifi-cation in record” often without history orphysical exam in record. Had prior licensesuspension for same violations and laterreinstatement.9. Other negligence or incompetence.Example: Prescribed 1500 doses of hydroco-done with acetaminophen with directionsto take enough to ingest 16 g acetamino-phen daily.10. IndeterminateExample: In one case, there was no descrip-tion of the violations in the record at theFederation of State Medical Boards office.

ResultsDuring the three-year period reviewed in this

study (7/99–6/02), the New York State Board

took 1050 disciplinary actions against physi-cians. These actions were the result of morethan 18,800 complaints, so that approximately5.6% of complaints, after investigation, resultedin disciplinary actions. Of these actions, 516resulted from complaints made against physi-cians practicing in New York State. The re-maining 534 disciplinary actions were basedupon either criminal convictions unrelated tothe practice of medicine or upon the actionsof other state boards against physicians whopracticed in other states but also held New YorkState licenses.

Of these 1050 actions, 32, or approximately3%, concerned the overprescribing of con-trolled substances. Four additional actions re-sulted from criminal possession or illegaldispensing of controlled substances. Only sevenof the 32 actions were against physicians practic-ing in New York State. For the other physiciansagainst whom actions by the New York StateBoard were taken, the actions were based uponthose of other state boards.

In the entire United States, there were 4,169disciplinary actions by all state medical boardsand 395 actions by the New York State Boardin 2002. There were 726,984 physicians practic-ing in the whole United States of which 56,955were practicing in New York State.

In every case reviewed, the description of themisconduct, in addition to the controlled sub-stance prescribing, included at least one and,more commonly, several other behaviors whichwere considered to constitute professional mis-conduct. This is shown for both the New YorkState and national data in Table 1. Mostcommon among these were self-prescribing orprescribing for non-patients, the failure tomaintain adequate patient records, and the fail-ure to take histories or perform physical exami-nations. Fifty-six percent of New York Statephysicians disciplined for charges includingcontrolled substances had more than one addi-tional charge of misconduct, as did 58% of allU.S. physicians disciplined for charges includ-ing misprescribing controlled substances. NoU.S. physician was disciplined by a state boardfor only the violation of misprescribing opioids.Only 7 of the physicians in the national samplewith the violation of inadequate records hadthis as the only violation in addition to the over-prescribing of controlled substances.

210 Vol. 29 No. 2 February 2005Richard and Reidenberg

Table 1Physician Behaviors Constituting Misconduct in Addition to the Violation Related

to Controlled Substance Prescribing

National (n=89) New York (n=32)No. % No. %

1. Prescribing to self, non-patients, etc. 38 43 12 382. Sex with patient 7 8 2 63. Not seeing patient 8 9 1 34. No history or exam 15 17 10 315. Prescribing for addict without addressing problem 18 20 3 96. No indication 17 19 3 97. Incompetence/negligence 12 13 7 228. Inadequate records 37 42 11 349. Prior disciplinary action or fraud or criminal 7 8 7 22

conviction or no DEA number10. Indeterminate 1 1 0 0

Since most disciplined physicians had more than one type of misconduct, the totals add up to more than 100%.No. � number of physicians with this behavior.% � percent of physicians with this behavior.

DiscussionOur detailed initial New York State study

found rates of disciplinary action by the StateMedical Board and of violations involving opi-oids similar to the total U.S. rates. New YorkState, with 7.8% of U.S. physicians, had 9.5%of U.S. disciplinary actions. Three percent ofphysicians disciplined by New York State hadactions involving prescribing controlled sub-stances, as did 2.4% of physicians in the UnitedStates. Thus, the three-year New York State datafrom 7/1/99–6/30/02 is very similar to thenational data from 1/1/02–9/30/02.

We recognize that physicians are concernednot only with disciplinary actions, but also withthe prospect of a complaint resulting in an un-pleasant and time-consuming board investiga-tion. Our study, however, could only address thesubject of disciplinary actions, as the confidentialnature of the investigations prevents reportingof information relating to physicians found tobe innocent. Hoffmann and Tarzian did asurvey of state medical boards and estimatedthat there were 3.1 � 2.8 complaints about over-prescribing opioids per 1,000 physicians in theUnited States in 2001.18 Since there were about727,000 physicians practicing in the U.S. in2002, if the rates are stable, there are about2250 complaints of overprescribing per year.Preliminary fact finding, reviewing pharmacyrecords and/or sending a letter of inquiry tothe doctor found an unknown fraction of thesecomplaints to be without merit. Formal investi-gations then found about 120 doctors per yeardeserving of disciplinary action by a state board.

This represents 5% of the complaints of over-prescribing, or 1 doctor per 6,058 practicingphysicians per year receiving an action by a stateboard for which overprescribing was one ofthe violations found. In recent years, most medi-cal boards have taken steps to educate theirmembers and investigators about appropriatepain management. Consequently, we suspectthat a smaller percentage of complaints of over-prescribing are reaching the level of an in-depth investigation or a disciplinary hearingthan in the past.

Reviewing the behaviors listed in Table 1 andour results show that there was very little, if any,risk for a doctor to receive disciplinary actionfrom a state medical board for prescribing opi-oids for pain when the medical record showedthat a doctor-patient relationship actually ex-isted and that the doctor was prescribing opi-oids to treat a painful condition in the patient.

Of those physicians who had actions takenagainst their licenses, either suspension or revo-cation, the large majority were found guiltyof other serious misconduct such as self useof opioids, sex with patients, and incompetence.In the cases of those physicians whose only addi-tional misconduct was poor documentation orfailure to do or to record history and physicalexaminations, common actions were repri-mand, practice monitoring, fine, and manda-tory remedial education.

Our review of the records of cases from NewYork State for three years and all U.S. casesfor 9 months, experience as a medical boardexaminer for 10 years (JR), having a major

Vol. 29 No. 2 February 2005 211State Board Disciplinary Actions

interest in pain management for 20 years(MMR), and our 42 and 40 years of medicalpractice, respectively, lead us to make thefollowing suggestions: There should be suffi-cient information in the record to support thediagnosis of a painful medical condition requir-ing a treatment regimen including opioids. Therecord should include documentation of thehistory and physical findings, a diagnostic im-pression, a treatment plan, and consultationswith other doctors for additional evaluationsand treatments when medically indicated. Alter-native means of pain control used and theresults obtained should be noted. Patientsreceiving opioids should be seen at regular in-tervals and the notes of these visits should bewritten in the medical record. Amounts of opi-oids prescribed should be included in therecord. When treating pain with opioids in apatient with problems of substance abuse, therecords should indicate that the prescriber isaware of the substance abuse problem, is ad-dressing it, and has an additional diagnosis ofa painful condition that is being treated withthe opioids. The record must state that theopioids are for treating pain, not addiction.Physicians should not prescribe controlled sub-stances for family members or friends unlessthere is a doctor–patient relationship clearlydocumented by a medical record. Obviously, ifthe prescribing of opioids for a family member islegally restricted in the area where the doctorpractices, these restrictions must be followed.

This review of New York State disciplinaryactions for 3 years and all U.S. actions for mostof 2002 indicates that the risk of state medicalboard disciplinary action against a physician fortreating a bona fide patient with opioids for apainful medical condition, in the absence ofother misconduct, is virtually nonexistent. Asimilar review of Drug Enforcement Adminis-tration actions and state law enforcement ac-tions against physicians for prescribing opioidsis needed to complete the evaluation of the riskof disciplinary actions against American physi-cians for prescribing opioids for patients inpain.

AcknowledgmentsThis study was supported by a grant from the

charitable foundation of Marilyn Spinoza

Weinberg and Robert F. Weinberg. The authorswish to thank Dr. James N. Thompson, Ms. LisaRobin, and the staff of the Federation of StateMedical Boards for making their records avail-able to them and for their generous assistanceand hospitality during the authors’ visit.

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