I have worked on medical board cases around the country for a long time. My particular specialty is unconventional therapies, either not FDA approved/cleared, or off-label use of FDA approved therapies (and diagnostics). I also spent a couple of decades advocating for expanded access to investigational drugs.
We are two years into the COVID pandemic. We have vaccines, and we’re starting to have EUA drugs for treating the virus. Right now, we are in a covid lull, at least in the US. But based on what is happening in China and Europe, maybe the lull won’t last.
On the unconventional medicine side of the street, we have many doctors who use and advocate off-label treatments, mostly Ivermectin now, but also HCQ. The attack response of the media and government entities has been relentless. In another post, I will address the First Amendment issues. In this post, I want to discuss physicians prescribing these medications and give my perspective as someone who has operated in this space for a long, long time. I’ll keep it simple.
1. Understand that you are painting a target on your back
This may be obvious, but even so, it is worth stating that writing off-label prescriptions for controversial medications like Ivermectin and HCQ greatly increases the risk that your medical board will investigate you, at least in some states.
It has a similar, if not greater risk profile than writing scripts for scheduled drugs for one important practical and obvious reason. Physicians do not dispense these drugs; they prescribe them to be filled at pharmacies. Pharmacies in many states have been alerted to the so-called improper prescribing of these drugs for COVID conditions. This greatly elevates the risk of a pharmacy reporting the prescriber to the medical board.
It is part of the job and ethical responsibility of pharmacists to double-check scripts that do not appear to be proper. That checking can include contacting the physician as to the purpose of the script. The physician has a choice; tell the truth with the risk of having the pharmacy refuse to fill the script, or lie about the medical condition.
There is now an ongoing board case in Maine against a physician who chose the latter course. After the board found out about it, it looked into the physician’s practices and records, and thereafter, it suspended her medical license. Medical boards do not look kindly on licensees who lie to other health care practitioners, even if it is self-portrayed as a matter of conscience to help the patient. And that leads to the next point, which is the most important point of this post:
2. Practice Defensive Medicine
If you are going to write these scripts, practice defensive medicine.
The most basic element of practicing defensive medicine in writing these controversial scripts is that you absolutely must have legible, coherent, and detailed medical records following the standard SOAP format.
If you’re an old-school doc who just scribbles some intelligible-only-to-you notes on random pieces of paper and calls that medical record-keeping, you should either stop writing these scripts or start thinking about what you’re going to do in your next career.
Some medical boards are looking for reasons to shut people like you down (and especially if you also shoot your mouth off in public forums about how wonderful these drugs are and how the government is suppressing the information because of big pharma, etc.).
IMO, if you have lousy medical records and are also a vocal advocate, that puts you on the board’s radar screen, which is a bad place to be in these times, and advocating these positions. And while you might be helping some of your patients, you’re not doing the movement much good.
I think that doctors who both prescribe and advocate for the use of these drugs have to be excellent and above reproach in terms of the basics of practicing medicine. Poor record-keeping is itself disciplinable conduct and makes it easy for the board to take you out of play. In addition, you are making your co-believers look bad. You should either clean up your medical record act or stop writing these scripts and lower your profile, both for your self-interest and the good of the community of co-believers.
Another thing I’d suggest is to make your records reflect that you have thought about and thoroughly researched the issue.
And finally, you should have very strong and clear informed consent.
The point of all this is that you might not be able to convince the board and its consultants that it is within the conventional standard of care to prescribe these therapeutics. However, you have the ability to make them recognize that your systems, basic medical skills, and thinking is consistent with a high degree of medical competence. And that is about all you can do if you are going to do this kind of activity.
Telemedicine consults and family scripts
Some states have telemedicine rules. So, if you’re writing these scripts based on telemedicine encounters, obviously, check to see if your board has a written policy, and of course, follow it scrupulously.
Assuming there are none, telemedicine is a medical encounter and you need clear and comprehensive SOAP notes.
Also, try hard to collect some documentation before the visit. As a fairly conservative board lawyer, I am pretty much against physicians writing scripts based on the first visit via telemedicine, unless the state board has specifically authorized the practice, or there is prior submitted documentation including prior medical records. Written verification of infection would be a good start. But even with prior records, there is risk, in the absence of a written and complied with board policy. New patient telemedicine visits prescribing these medicines for covid greatly enhances the risk of investigation and a complaint.
Family visits and medical records
You can give whatever group discount you want, but you should have a separate medical record for each family member. You should also have contact with each family member for whom you are writing a script. You’re not selling bananas.
Combining this and the previous point, the most dangerous thing you can do in this space is the family telemedicine visit for Ivermectin or HCQ scripts, without prior medical records or documentation of the disease, without having a medical record for each patient, and without televisiting each patient.
Prophylactic and future use prescribing
Many of your patients (existing and perhaps new) want a script for an off-label covid therapeutic either to be taken prophylactically or in case they get it. The most risk would be a new patient who wants to take it prophylactically via a telemedicine visit.
That seems like a lot of risk to me. If the patient has an adverse event and has to see a medical professional, you will be in a world of hurt, medical board-wise. You can count on the treating emergency physician to report you to the board. This is probably not much of an issue right now in the US, but it is something to keep in mind for the next wave.
You might want to ask around and see if there are pharmacies that are more open-minded. I suspect pharmacies that do compounding would be more likely to accept these kinds of scripts. But this is just my guess, knowing the outlook of compounding pharmacies. You might want to check your state’s pharmacy board website to see what kind of reporting requirements they have for an off-label covid prescription.
I think some docs tell patients to purchase the animal version of the drug rather than writing a prescription. That would make a cleaner medical record. That seems like a smart way to lower the risk, but might be unsatisfactory, (if not appalling) to some patients.
Hope this doesn’t scare you too much, but being a little scared and cautious in the current environment is not a bad thing.
Rick Jaffe, Esq.