How High Is Too High?: Examining Opioids and the Law

By Brandon Vogel

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The opioid epidemic is worse than ever as the global COVID-19 pandemic has swept the world.

Dr. Allison Muller (Acri Muller Consulting) said that there is a connection between the two as people with substance abuse issues may be trying different substances now or have a resurgence of their disorder.

Muller expects to see an increase in opioid-related criminal cases as a result. It remains to be seen if medical malpractice cases will go up, she said on the recent CLE webinar, “Opioids, The Science, And The Law: How High Is Too High.”

Too many prescriptions?

U.S. Surgeon General Dr. Jerome Adams said, “We still prescribe over 80% of the world’s opioids to less than 5% of the world’s population So, we still have an over-prescribing epidemic, but we’ve surpassed the inflection point there. Prescribing is coming down.”

Panelist Joseph Lesniak (Law Offices of Joseph Lesniak) said that “What is happening is not that doctors have stopped prescribing opioids; it’s the state and the state licensing bureaus are starting to crack down.”

For example, he recalled that his local pharmacy flagged a pediatrician for allegedly prescribing an opioid for the first time in her 30 years of practicing medicine. Lesniak noted that it ended up being her nurse who had access to her DEA (Drug Enforcement Administration) number who called in the prescription. An arrest is pending in that case.

“Doctors realize that they are going to lose their medical license and, you’ll see from the case law, they will also lose their freedom as well,” said Lesniak.

Opioids v. opiates

Muller distinguished between opiates, which are naturally-derived substances such as morphine or codeine, and opioids, like oxycodone and anti-diarrheal medicines, which are semi-synthetic or synthetic. It is important to know the difference particularly when viewing drug testing results, said Muller, because investigators may only look for certain substances.

She explained that in 1898, the Bayer Company commercially produced heroin, which was advertised as having 10x the potency of morphine but without any of the addicting properties. The opioid prescribing surged in the 1990s with misinformation such as that “the drugs aren’t addictive.” As a pharmacy student during that time, Muller learned that the substances were, in fact, addictive. “I’m not sure how the prescribers got one message and the pharmacy students got another.”

It is now a public health emergency with more than 2 million Americans addicted to prescription or illicit opioids, said Muller.

Just how potent are these opioids? Fentanyl, which can be prescribed to those with opioid tolerance, is 50-100x the potency of morphine and often leads to overdoses when used as a street drug. A person dies every 12-and-a-half minutes from an opioid overdose according to the Surgeon General.

Sufentanil is 10x as potent as fentanyl and is only available at specialty pharmacies because “its distribution must be controlled.” When carfentanil, a horse tranquilizer, makes it on the street, no human lives to tell about it, said Muller. It is 10,000x more potent than morphine.

Overdoses

Fatalities increase when drugs are used with other drugs or alcohol, or the individual has lost his tolerance after periods of non-use. Signs of an opioid overdose include: choking, blue lips and nails, slow or absent breathing, cold and clammy skin, and tiny pupils.

The widely-available Naloxone (Narcan) is recognized as the fastest-working opioid antagonist by blocking the action of opioids at the opioid receptors. Muller cautioned that it could fail, depending on the dose given and the potency of the opioid. “Timing is everything,” said Muller.

There are minimum thresholds on toxicology lab reports that must be met. As an example, claiming that eating a poppy-seed bagel right before your test will not fly. Muller explained that poppy seeds are washed before baking and the seeds do not contain the opioid. Any residual amounts are so small that an individual would have to eat an enormous amount to get high, said Muller. However, drinking concentrated poppyseed tea “is a whole other situation.”

Likewise, opioids last longer in urine tests than blood tests. A presence in blood tests indicates a more “recent” experience.

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