Physician, define thyself

In the United States, prescribers may be federally indicted and prosecuted based upon interpretation of these ten words:

legitimate medical purpose in the usual course of professional practice

The entire phrase found in the DEA Practitioner’s Manual reads:

To be valid, a prescription for a controlled substance must be issued for a legitimate medical purpose by a practitioner acting in the usual course of professional practice.

Importantly, the DEA Practitioner’s Manual goes on to say:

Federal courts have long recognized that it is not possible to expand on the phrase “legitimate medical purpose in the usual course of professional practice” in a way that will provide definitive guidelines to address all the varied situations physicians may encounter.

Based on my research, terms like “legitimate medical purpose” and “usual course of professional practice” are not found in medical textbooks, nor are they taught in medical schools. It does not seem to be necessary. It is intuitive to physicians what we do and why we do it.

Nevertheless, courts need more definitive guidance, otherwise they might default to: “You just know it when you see it.

I am simply not comfortable with such a vital phrase remaining so inscrutable. And as a physician, I feel the dearth of clarity surrounding those ten words places all physicians, including myself, at risk. Consequently, this physician set out on a journey to “define thyself.”

The following (with links to references) represents a work in progress that, with help from numerous colleagues, wordsmiths, legal experts, patients, friends, lay people and trusted advisors, comprises my current best effort at expanding upon:

Legitimate medical purpose in the usual course of professional practice

In essence, for a duly licensed M.D or D.O. physician practicing medicine in the United States, this phrase from the DEA Practitioner’s Manual corresponds to a generally accepted process that, in the context of a patient-physician relationship, can correctly be expanded to mean: a science-based, moral art of caring wherein a physician serves a patient’s medical needs, primarily, by accessing and evaluating information that is utilized by the physician in deriving a clinical assessment, leading to the physician formulating a plan of care. With intent to mitigate harm to the patient, intent to provide benefit to the patient, intent to respect the patient’s right to autonomy, and intent to be mindful of how consequences might affect others, the physician in this course of practice exercises judgment that is considerate of scientific evidence, judgment that is reasoned by the physician to be in accord with standards in the field of medicine, and judgment that is born out of the physician’s knowledge, observations and intuition.

James Patrick Murphy, MD

First draft: 1/17/2020; most recent revision: 2/22/2020

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One thought on “Physician, define thyself

  1. Dr. Murphy, You make a number of salient points in this post. As a forensic pharmacist having participated in several legal cases as an expert (for plaintiff and defense), I find that even the “standard of care” is poorly defined. For example, the “the usual course of professional practice” is highly variable. My usual course or another pain expert’s usual course, and training, is not the same as a family practice clinician, or even a board certified interventionalist prescribing medications. Likewise, the standard of care for the majority of prescribers is lacking due to poor education in pain therapeutics, advanced pharmacotherapeutics, resources, and time constraints. The litmus test for “standard of care” needs to be based on what others that are similarly situated would have done under the same circumstances – unfortunately, while that isn’t always the optimal treatment, it is nevertheless the REAL standard of care. Our approach to the problem therefore is askew from reality. Thank you for this fine post.

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