Policing Doctors

By Li Goldstein

When Dr. Philemon Marvell arrived at his hearing with the Board of Medical Licensure and Discipline in 2012, he introduced himself as Captain Marvel and brought along his golf partner to present his defense in lieu of an attorney.

Marvell, 68 at the time, was unusual in demeanor, but patients who lived two hours away flocked to him in search of one precious commodity: prescription opioids.

Marvell, who’d been licensed to practice in Rhode Island since 1978, had a reputation for prescribing opioids liberally and not keeping records of his dispensing. Employed by Newport Psychological Services in Middletown, he prescribed over the phone and online, but never seemed particularly motivated to evaluate his patients to justify a need for prescription narcotics, more than a want for them.

A close analysis of Marvell’s notes — prompted by a complaint called in by his own wife, who reported that he had been having an affair with a patient — found blatant discrepancies and poor record-keeping that were “egregious,” says Dr. James McDonald, the board’s chief administrative officer.

So egregious, in fact, that it justified an emergency suspension of his license.

The administrative hearing that Marvell requested following his suspension prompted an even more thorough review of the 11 patient files at the center of the investigation and cemented McDonald’s belief that Marvell posed an immediate threat to the public. In Marvell’s notes, he found “some of the worst medical records I've ever seen.”

One patient under scrutiny “has 74 narcotic prescriptions over a two year period with only brief notes that are incomplete and difficult to follow. A brief attempt to treat migraine headaches with Cymbalta is made but patient is quickly switched to Percocet and Vicodin.”

Another patient was found to have been “renewing prescriptions for stimulants weeks ahead of time and is using 2 separate dates of birth and five different pharmacies.”

A note from a pharmacist sent to Marvell with a query about the patient’s early refills was left unaddressed.

Marvell is one of 67 doctors in Rhode Island who, from 2012 to the present, has been disciplined for over-prescribing or mis-prescribing narcotic drugs.

Between 2012 and 2014, roughly half of controlled substance disciplinary actions resulted in a loss of license, though that proportion shrunk between 2014 and 2017, according to a retrospective study conducted by McDonald that examined controlled substance disciplinary actions between 2012 and 2017.

According to the study, most of the doctors who got disciplined for such misconduct were older male practitioners who had been licensed to practice for decades. The average age of physicians disciplined for controlled substance infractions was 63, with an average time in practice of 33 years. Each of the 49 doctors in McDonald’s retrospective study from 2012 to 2017 was male. Since then, all but three physicians disciplined for controlled substance prescribing have also been male.

McDonald’s retrospective study reflects his ethos as a leader of the Board of Medical Licensure, where, for nine years now, he has made it a tenet of his platform to not only sanction doctors for over-prescribing or mis-prescribing controlled substances, but to educate them. For him, getting a handle on the opioid epidemic has been a top priority.

McDonald, a doctor trained in pediatrics and preventive medicine, took over leadership of the BMLD in February 2012. At the time, he said, he inherited a board that lacked the infrastructure and resources to prosecute cases against doctors at the level necessitated by the increasingly deadly epidemic. Before he was hired, there had been a vacancy at the helm of the board for more than two years.

McDonald was preceded by Dr. Robert Crausman, who led the board between 2003 and 2010. But a vacancy between 2010 and 2012 left the board’s leadership in the hands of its legal counsel, Bruce McIntyre, who is not a physician.

When McDonald began, “there was definitely overprescribing going on, but the reason there were so many (doctors being disciplined) in 2012 or 2013 was because there was someone actually doing the oversight,” he said. “If you don’t have oversight, nobody changes anything.”

McIntyre says that when serving as both counsel and interim director for the BMLD, he was stretched thin. And though he prosecuted and charged his fair share of controlled substance cases, he said, each iteration of the board is beholden to the resources allocated by the Department of Health, which determines funding for hiring, as well as its own priorities. And funding for a replacement for Crausman was not allocated to the BLMD for two years.

But some attorneys who represent doctors before the board think the board has become too overzealous in its increased oversight of physicians and their prescribing habits.

Now-retired defense attorney Dennis McCarten spent part of his career defending physicians who were brought before the board for disciplinary issues. One of his clients was the late Dr. Christopher Huntington, who committed suicide in 2013 after finding out that his license had been summarily suspended for overprescribing opioids.

McCarten thinks that under McDonald, the board has become too heavy-handed in prosecuting physicians, depriving physicians of due process.

In the wake of Huntington’s death, he has come to firmly believe that “a licensing authority (such as the BMLD should have to) lay out its case before a justice of the Superior Court before exercising its power to revoke a license.”

“The argument will be advanced that licenses are privileges while liberty and privacy are rights,” he says. “But I counter that licenses, especially professional licenses like Dr. Huntington’s, are so intrinsic to the holder’s life and liberty that they deserve more protection than they are now afforded.”

But McDonald disagrees. “People were dying at that time from prescription overdoses,” McDonald said. Huntington’s summary suspension, like the many that preceded and followed it, was necessary to protect public safety, he says.

And on the legal front, McIntyre believes McCarten’s suggestion that license revocations should be handled primarily by the court system is impractical. It neglects to consider that the BMLD was set up by a state legislature to “modernize the Board in accordance with other boards around the country.”

In addition, he said, “The Superior Court judges would never have the time or the expertise” to regularly rule on the volume of cases currently fielded by the BMLD. Nor is there a precedent for what McCarten advocates anywhere else in the country, he said.

McIntyre said that under the current system of investigation, there is still a high standard of proof required for license revocations within the structures of the BMLD.

“I take a lot of pride in the fact that I did not lose cases on appeal,” which all take place in the Superior Court, he said.

From his years of experience prosecuting cases against physicians, McIntyre found that those physicians whose practices came under scrutiny fell into three broad categories.

The first was the “naive or poorly trained physician, who just didn’t know how dangerous these drugs were,” he said.

The second and more culpable category consisted of doctors who were easily swayed by patients seeking opioid prescriptions, usually “older practitioners who were winding down their practice.”

Doctors who fell into that category were “trained in a different paradigm.” In the 1990s, “They were more inclined to (heavily prescribe pain medications) than they had been in prior decades. You had pharmaceutical companies pushing people to do it. You had regulatory bodies and accreditation bodies putting the emphasis on treating pain,” says Crausman, McDonald’s predecessor who now works as an addiction medicine specialist with Ocean State Healthcare in Fall River, Massachusetts.

Doctors were being scrutinized if they were not prescribing enough narcotics, he said.

In that era, it was more commonplace for a patient to submit a complaint against a physician if they believed their pain wasn’t being tended to properly. “While that didn’t mean that you should be getting narcotics, that certainly meant that if your doctor wasn’t giving you narcotics, they now had to potentially justify their decisions to a medical board, and hospitals got into trouble if they weren’t appropriately attending to pain as the fifth vital sign,” Crausman said.

Often, McIntyre said, it is physicians who work alone or in private practice who are more likely to prescribe large quantities of opioids, compared to their peers with hospital privileges at institutions with more structures of accountability. Independent physicians often lack important “peer collegiality and peer oversight,” a practice more common in hospitals, he said. “The further they got from the hospital, the more dangerous they became.”

The third category, said McIntyre, involved physicians who were driven by greed — financial incentives from pharmaceutical companies to prescribe.

In one infamous case, Dr. Jerrold Rosenberg’s license to practice medicine came under review in 2014. Rosenberg, who ran a pain management clinic in North Providence, had been prescribing Subsys — a potent, under-the-tongue treatment of fentanyl — to a number of patients for chronic pain, without properly documenting its use. After a review of his records, he was reprimanded and ordered to reform his practices, but emerged otherwise unscathed.

Later, it would be revealed that the same year he got reprimanded by the board — 2014 — Rosenberg received $91,810 in under the table payments from Insys Therapeutics, the manufacturer of Subsys, which had quietly been compensating him for prescribing their product, under the guise of speaker’s fees. It turned out that Rosenberg’s son worked as a sales representative for the company, and was receiving hefty commissions under his father’s scheme.

In 2017 Rosenberg admitted, in a federal court prosecution, that he had committed healthcare fraud and accepted kickbacks from Insys, totaling over $188,000 between 2012 and 2015. Rosenberg, now 66, was sentenced to serve over four years in prison for accepting financial inducements from Insys and prescribing their product to patients who did not need Subsys.

“Greed has no role in that sacred relationship that exists between a doctor and a patient,” Chief U.S. District Judge John McConnell said in sentencing Rosenberg, now an inmate at a correctional facility in Philadelphia. The judge said that Rosenberg had put his patients at risk by prescribing the drug for chronic pain when the drug was only approved by the U.S. Food and Drug Administration for use by people with cancer.

One patient testified at his sentencing that Rosenberg “made me a junkie” and that when she begged him to take her off the drug, he told her to “stop being a baby.”

But at the height of the epidemic, some pharmaceutical companies capitalized on greed.

Pharmaceutical representatives would often lure physicians into pushing their product, offering payment under the guise of lectures or speakers’ series, with full knowledge of their potential for harm, McIntyre said. At times, these same representatives would even sit in on consultations between physicians and their patients and recommend the prescription of their drug to the patient directly, McIntyre said.

Oxycodone, in particular, “took a bad problem and turned it into a horrific problem,” McIntyre said. One particular form of the drug being pushed by pharmaceutical companies, OxyContin 160 IR, was “nothing but legal heroin.”

In the 1970s, before the onset of the opioid epidemic, Rhode Island was one of the first states to implement some infrastructure of accountability for prescriptions. Doctors were required to use duplicate prescription pads whenever they prescribed controlled substances. One copy of the written prescription would go to a pharmacy, which would then send a carbon copy to the Department of Health for review.

But the department did not have the staffing or the resources to thoroughly review each one. “The doctors all knew that we knew exactly what they were prescribing controlled substance-wise, and to whom,” McIntyre said.

But this duplicate prescription practice was “largely useless because nobody was looking at them,” McDonald said.

A 1986 scandal at Kent County Hospital, involving Dr. Felix Balasco, a Providence physician who had been accepting kickbacks for the implantation of pacemakers, led to nine measures which gave the Board of Medical Licensure and Review more authority to quickly intervene in cases of doctors who exhibited dangerous prescribing practices, McIntyre said. It wasn’t until a court ruled on Balasco’s case that the BMLD actually revoked his license.

The scandal prompted a new era in the BMLD, spearheaded by Dr. Milton Hamolsky, and a new ethos toward disciplining physicians. The Department of Health funnelled more resources into the BMLD’s operations, and they were given more credibility in return: the power of subpoena, and the power to summarily suspend licenses.

“This was a gamechanger for the regulatory process,” McIntyre said.

In recent years, the Prescription Drug Monitoring Program, which electronically tracks controlled substance prescriptions, has become a crucial measure of accountability for both doctors and the pharmacists filling their prescriptions, alerting both parties if a prescription might dangerously conflict with another controlled substance prescribed to the same patient by a different physician.

Pharmacists can “flag and scrutinize” irregular prescribing patterns within the PDMP, said Cathy Cordy, former executive director of the Board of Pharmacy, and report to the Board of Medical Licensure if necessary. Doctors are now required to cross-check PDMP data before prescribing opioids to a patient, under regulations spearheaded in the past five years by McDonald.

But while the expectation is that doctors will check the PDMP diligently, the BMLD “does not do active surveillance of prescribing,” McDonald says.

As a result, it remains unclear how many physicians are actively checking the database before prescribing.

Still, the PDMP will proactively alert a physician if a patient is going to “more than four pharmacies and more than four prescribers within six months” to obtain extra supplies of a controlled substance: a trend commonly referred to as “doctor shopping.”

And, with access to the PDMP data, pharmacists can crucially aid prosecutions against doctors by serving as local whistleblowers.

Pharmacists “always had corresponding liability with the physician for assuring that there was a medical legitimacy for the drug,” Cordy said. “But there wasn’t a heightened sense of enforcement or adherence to that until the opioid epidemic started pretty noticeably.”

Chain pharmacies like CVS are normally more equipped with “control systems in place,” made possible by money and corporate backing, to report odd patterns of prescriptions. In contrast, smaller, independent pharmacies are more likely to allow high doses and high quantities of pain medication to be doled out to customers without significant oversight, incentivized by reimbursement for filling more prescriptions, Cordy asserted.

Many pharmacists will intervene before filing a formal complaint with the Board, McDonald said, asking the doctor questions that may push them to revise their behavior, and only filing the complaint as a last resort.

McDonald added that peer physicians and insurance companies paying claims may also tip off the Board if they notice irregular prescribing patterns that fail to meet acceptable standards of practice.

For example, a physician may inherit a patient from another medical professional and immediately notice an irresponsible pattern of prescribing. In those cases, McDonald encourages “collegial intervention,” in which a doctor confronts a peer physician about their prescribing habits.

Now, under McDonald’s leadership, the BMLD publishes clear-cut standards for responsible prescribing, dictating that before a doctor prescribes an opioid to a patient they must properly examine the patient, draw up a comprehensive treatment plan, and educate the patient about risk factors.

Complaints against physicians “are trending down because there’s such clear regulation about what prescribing looks like. To me, the prescribing is just getting better,” McDonald said. “And I think as we’ve made iterative changes to the regulations, doctors have a clear understanding of what responsible prescribing looks like.”

—Data analysis by Hal Triedman