Just What the Doctor Ordered: A New Federal Statute to Criminalize Physicians for Overprescribing Opioids

Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-03

Forthcoming, to be published in Yale Law & Policy Review Vol. 39 pp. XX (2021)

41 Pages Posted: 2 Mar 2020 Last revised: 21 Apr 2020

Date Written: February 10, 2020

Abstract

We are in a national emergency—an epidemic of opioid addiction and abuse—that has claimed the lives of more than 700,000 Americans at a cost of more than 500 billion dollars to the economy in the last twenty years. Even now, on average 130 people die every day from an opioid overdose, making it a leading cause of injury-related death in the United States. And 70 percent of those deaths involve an opioid that a doctor legally prescribed.

There is a growing sense that those responsible for the epidemic—specifically doctors who overprescribe these drugs have escaped responsibility. In the last decade nation-wide, criminal charges against doctors have numbered only in the few hundred. Thus, a disparity exists between the size of the opioid epidemic and the number of people, specifically overprescribing doctors, who have been held to account for deaths resulting from prescribing these dangerously addictive drugs. This raises questions: Given the increasing number of opioid overdose deaths nationally, why are charges and convictions of doctors so rare? And why haven’t existing legal mechanisms worked to punish the improper prescribing practices and curb the epidemic so far? The problem of overprescribing opioids persists because the current law, the federal—the Controlled Substances Act—is unclear and lacks uniform application. This article examines these issues and others. It is the first article in legal scholarship to offer concrete and common-sense solutions, including one grounded in a proposed new federal criminal statute aimed directly at those doctors who knowingly violate acceptable health care norms in prescribing opioids. The novel federal homicide law proposed here will deter and punish physicians whose reckless prescription practices cause their patients’ deaths while also providing the space for those doctors engaged in legitimate pain treatment and management to use these drugs to relieve suffering.

Keywords: Opioids, Opioid Crisis, Criminalizing Doctors, Opioid Epidemic, Criminal Law, Federal Criminal Law. Opioid Overdose Deaths, Opioid Addiction, Doctors, Criminal Liability Doctors, Physicians, Pharmaceutical

Suggested Citation

Delfino, Rebecca, Just What the Doctor Ordered: A New Federal Statute to Criminalize Physicians for Overprescribing Opioids (February 10, 2020). Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-03, Forthcoming, to be published in Yale Law & Policy Review Vol. 39 pp. XX (2021), Available at SSRN: https://ssrn.com/abstract=3535943 or http://dx.doi.org/10.2139/ssrn.3535943

Rebecca Delfino (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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