(Stuart Green) One of the themes that I have pursued in my scholarship is the frequently elusive line that distinguishes criminal conduct from mere civil wrongs. That theme was taken up in a context I had not considered before in a cover piece by Tina Rosenberg in Sunday’s New York Times Magazine, entitled “When is a Pain Doctor a Drug Pusher?” The main focus of Rosenberg’s piece is a Greenwood, S.C., physician named Ronald McIver, who, based on evidence that he had been prescribing many times the recommended dosage of various opioids, was sentenced to thirty years in prison for drug trafficking. Rosenberg believes not only that the law was wrongly applied to McIver’s case, but that the law itself should be changed.
Rosenberg’s description of the facts is so sympathetic to McIver that it’s hard to tell whether the facts really did support his conviction. Rosenberg argues that McIver’s sin was nothing more than being overly aggressive in his approach to pain management, and perhaps sloppy about his record keeping (though she does note that some of McIver’s patients were regularly selling excess amounts of prescribed drugs to third parties.) She suggests that the one patient of his who did die, allegedly as a result of over-prescription, had an underlying condition that was the real cause of his death.
Whether or not Rosenberg’s reading of the facts in the McIver case is accurate, what troubles me is her treatment of the larger legal issue that it raises. So far as I can tell, Rosenberg thinks that we shouldn’t ever criminalize what she calls “bad medical decisions.” Before criminal sanctions can be imposed, she says, the evidence ought to show a “link broken” between the patient’s medical condition and the drug prescribed, such as when a doctor exchanges a prescription for money or sex or writes a prescription for a made-up name or without ever seeing the patient. So long as there is some intact link between the medical condition and drug prescribed, she says, criminal prosecution is not warranted. Instead, she says, cases of mere recklessness should be referred to the state medical board or should result in a claim for civil malpractice.