NORMAN J CLEMENT RPH., DDS, NORMAN L.CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., INC.T. SPIRIT OF REV. C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., MBA., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., WALTER F. WRENN III., MD., JULIE KILLINGWORTH, LESLY POMPY MD., CHRISTOPHER RUSSO, MD., NANCY SEEFELDT, WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., NEIL ARNAND, MD., RICHARD KAUL, MD., LEROY BAYLOR, JAY K. JOSHI MD., MBA, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NJOKU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS
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EXCERPTS FROM THE KANSAS LAW REVIEW
VOL 67 Pg. 961
Definitions Matter: A Taxonomy of Inappropriate Prescribing to Shape Effective Opioid Policy and Reduce Patient Harm
Kelly K. Dineen*
“The reasons that opioid policies sometimes do not address underlying issues or even cause more harm than good are complex. The policy’s good intentions over the actual consequences). Some policies likely fell prey to the intentions heuristic (i.e. the implicit privileging of a policy’s good intentions over the actual consequences).
Some policies are based on simple misunderstanding and miscommunication of the evidence. (98) Fundamentally, policymakers are prone to the same biases and decision-making errors as individuals, which may contribute to incoherent policy enactments.
* Assistant Professor and Director, Health Law Program, Creighton University School of Law. I am grateful for the many patients with chronic pain and the array of careful and compassionate providers with whom I have worked in the past, as well as the opportunity to work for and with Sandra H. Johnson, a pioneer in the use of law and policy to improve pain treatment… Any errors are mine alone. I published an abbreviated form of this article in the Hastings Center Report in 2018. See Kelly K. Dineen, Defining Misprescribing to Inform Prescription Opioid Policy, 48 HASTINGS CTR. REP. 4, 5–6 (2018).
III. OPIOID-RELATED DECISIONS: FAILED HEURISTICS & BIASES
The opioid crisis is too often explained in oversimplified narratives and sound bites. Every decision about opioids is wrapped in robust cultural, moral, and political narratives about the meaning and value of pain and suffering, the nature of addiction, the relationship of the practice of medicine to the treatment of addiction, and the state-sanctioned stigmatization of substance use through criminalization. These factors make stakeholders involved in opioid prescribing policies more susceptible to bias and faulty decision-making.
One reason may be an adherence to the Precautionary Principle, i.e., that “regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do not know that those harms will come to fruition,” which Cass Sunstein has described as “literally incoherent” and providing an “illusion of guidance” only. CASS R. SUNSTEIN, LAWS OF FEAR: BEYOND THE PRECAUTIONARY PRINCIPLE 4–5 (2005).”
- See, e.g., Gary M. Lucas, Jr. & Slavisa Tasic, Behavioral Public Choice and the Law, 118 W. VA. L. REV. 199, 218–23 (2015).
For example, the media and policymakers continue to spread a narrative in which those harmed by opioids are people who received a prescription from their provider. See, e.g., Painkillers Driving Addiction, Overdose, NAT’L SAFETY COUNCIL, https://www.nsc.org/home-safety/safety- topics/opioids [https://perma.cc/688N-4EX3] (last visited Mar. 22, 2019) (“Many adults [are] prescribed opioids by doctors and subsequently become addicted or move from pills to heroin.”); Controlled Substances Quotas, 83 Fed. Reg. 17,329, 17,331 (proposed Apr. 19, 2018) (codified at 21 C.F.R. pt. 1303) (“Users may be initiated into a life of substance abuse and dependency after first obtaining these drugs from their health care providers or without cost from the family medicine cabinet or from friends. Once ensnared, dependency on potent and dangerous street drugs may ensue. About 80% of heroin users first misused prescription opioids.”). In reality, this is untrue. Approximately 75% of those who report misuse of prescription opioids did not receive a prescription for the medication; instead, they steal, borrow, or buy the drugs.
2. see eg. Rachel Lapari & Arthur Hughes, How People Obtain the Prescription Pain Relievers They Misuse, SAMHSA.GOV (Jan. 12, 2017),
3. https://www.samhsa.gov/data/sites/default/files/report_2686/ShortReport-2686.html [https://perma.cc/XC7M-KB5R].
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