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Important Lessons From a Physician's Conviction For Drug Diversion
By David B. Brushwood, R.Ph., J.D.
University of Florida
March 2002

Two large measures of comfort can be taken from the otherwise distressing conviction of Pace, Florida physician Dr. James Graves, who was found guilty on February 19 of one count of racketeering, four counts of manslaughter, and five counts of unlawful delivery of a controlled substance.

First, the facts of the case disclose that Dr. Graves was convicted of being a flagrant drug diverter masquerading as a pain management physician. The egregious nature of the evidence heard by the jury supports the conclusion that competent and conscientious physicians need not fear similar prosecutorial action, even if they frequently prescribe very high doses of opioid analgesics for chronic pain patients. This was certainly not a groundless case contrived by an overzealous prosecutor who misread the situation and persecuted a caring but naïve physician.

Second, the law enforcement community and the health care regulatory community worked well together on the case, within established legal authority, to achieve a just result. Success with this case demonstrates that there is no pressing need to enact new laws that could restrict physicians' ability to provide patients with access to necessary medications, if the will exists to continue enforcement of current laws against those health care providers who abuse the system.

Dr. Graves reportedly prescribed a combination of Soma, Xanax, Lortab and OxyContin for most of his patients. Dubbed the "Graves Cocktail" by local pharmacists, this combination of medications was prescribed outside the usual course of professional practice, according to the jury's verdict. Testimony at trial indicated that patients crowded the parking lot outside Dr. Graves' office, waiting for their turn to pick up their prescriptions. The prosecutor referred to this activity as a "tailgate party."

Not all of Dr. Graves' patients were critical of him. Some patients expressed appreciation for his willingness to provide pain medications for them, particularly since their primary care physicians were unwilling to do so. Because pain is often under treated, legitimate patients are sometimes forced to seek the assistance of fringe practitioners who take no medical history and conduct no physical examination. The reluctance of primary care physicians to meet patients' needs for pain medications may push patients toward such unlawful practices.

Physicians who follow minimal standards for prescribing controlled substances to treat pain have been safe-harbored from prosecution in states that have adopted model rules developed by the Federation of State Medical Boards. Florida is one such state. To avoid regulatory problems, physicians should do the following: take a complete patient history, conduct a physical exam, develop a treatment plan, obtain informed consent, periodically review the care plan, consult a specialist when necessary, maintain complete and accurate medical records, and comply with controlled substances laws. Although this is a long list of things to do, it is consistent with standard medical procedures, and is a familiar process for all physicians.

Recent concerns about inappropriate prescribing of controlled substances generally, and OxyContin specifically, have led to the introduction of a bill in the Florida legislature that would create a large scale electronic surveillance system for controlled substances dispensed by Florida pharmacists. Under the proposed plan, the Department of Legal Affairs would scrutinize the pattern of use of controlled substances by Floridians, and would decide from this information what physicians, pharmacists or patients to investigate. In light of the recent success in prosecuting Dr. Graves, one must question whether, given the economic cost of such a program, and the chilling effect the program could have on appropriate prescribing by physicians, such intrusive legal oversight of patient records is warranted.

Any time a licensed health care professional betrays the public's trust there is understandable cause for concern about the system. Bad doctors make good doctors look bad. Yet the take-home message from this case is that the system works. Physicians need not fear prescribing necessary pain medications for patients. Pharmacists need not fear dispensing them. Patients need not fear taking them. Human suffering can be relieved through appropriately prescribed pharmaceutical products, and the diversion of controlled substances to illicit uses can be prevented at the same time.

David Brushwood is Professor of Pharmacy Health Care Administration at the University of Florida in Gainesville. He is a Mayday Scholar with the American Society of Law, Medicine and Ethics (ASLME). For information about ASLME pain policy projects, go to ASLME.