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Treating Doctors as Drug Dealers:
The DEA's War on Prescription Painkillers


by Ronald T. Libby 
Published by the Cato Institute, June 16, 2005

Executive Summary

The medical field of treating chronic pain is still in its infancy. It was only in the late 1980s  that leading physicians trained in treating the  chronic pain of terminally ill cancer patients  began to recommend that the “opioid therapy”  (treatment involving narcotics related to opium)  used on their patients also be used for patients  suffering from nonterminal conditions. The new  therapies proved successful, and prescription  pain medications saw a huge leap in sales  throughout the 1990s. 

But opioid therapy has always been controversial. The habit-forming nature of some prescription pain medications  made many physicians, medical boards, and law  enforcement officials wary of their use in treating  acute pain in nonterminal patients. Consequently, many physicians and pain specialists have shied away from opioid treatment, causing millions  of Americans to suffer from chronic pain  even as therapies were available to treat it. The problem was exacerbated when the  media began reporting that the popular narcotic  pain medication OxyContin was finding its way  to the black market for illicit drugs, resulting in  an outbreak of related crime, overdoses, and  deaths. 

Though many of those reports proved to  be exaggerated or unfounded, critics in Congress  and the Department of Justice scolded the U.S.  Drug Enforcement Administration for the  alleged pervasiveness of OxyContin abuse.  The DEA responded with an aggressive plan  to eradicate the illegal use or “diversion” of  OxyContin. The plan uses familiar law enforcement  methods from the War on Drugs, such as  aggressive undercover investigation, asset forfeiture,  and informers. 

The DEA’s painkiller campaign has cast a chill over the doctor-patient candor necessary for successful treatment. It has  resulted in the pursuit and prosecution of well-meaning doctors. It has also scared many doctors  out of pain management altogether, and likely  persuaded others not to enter it, thus worsening  the already widespread problem of under-treated  or untreated chronic pain.  

Introduction 

Untreated pain is a serious problem in the  United States. Given the difficulties in measuring  a condition that’s untreated, estimates vary,  but most experts agree that tens of millions of  Americans suffer from undertreated or untreated  pain. 

The Society for Neuroscience, the  largest organization of brain researchers, estimates  that 100 million Americans suffer from  chronic pain. The American Pain Foundation,  a professional organization of pain specialists,  puts the number at 75 million—50 million  from serious chronic pain (pain lasting six  months or more), and an additional 25 million  from acute pain caused by accidents, surgeries,  and injuries. 

The societal costs associated with  untreated and undertreated pain are substantial. In addition to the obvious cost of needless  suffering, damages include broken marriages,  alcoholism and family violence, absenteeism and job loss, depression, and suicide. The  American Pain Society, another professional  group, estimates that in 1995 untreated pain cost American business more than $100 billion  in medical expenses, lost wages, and other costs,  including 50 million workdays. 

A 2003 article  in the Journal of the American Medical Association  puts the economic impact of common ailments  alone—such as arthritis, back pain, and  headache—at $61.2 billion per year.  Chronic pain can be brought on by a wide  range of illnesses, including cancer, lower back  disorders, rheumatoid arthritis, shingles, postsurgical  pain, fibromyalgia, sickle cell anemia,  diabetes, HIV/AIDS, migraine and cluster  headaches, pain from broken bones, sports  injuries, and other trauma. 

According to one 1999 survey, just one in  four pain patients received treatment adequate to alleviate suffering.5 Another study of  children who died from cancer at two Boston hospitals between 1990 and 1997 found that almost 90 percent of them had “substantial  suffering in the last month, and attempts to control their symptoms were often unsuccessful.”

In a formal policy statement issued in  1999, the California medical board found “systematic  undertreatment of chronic pain,”  which it attributed to “low priority of pain  management in our health care system,  incomplete integration of current knowledge  into medical education and clinical practice, lack of knowledge among consumers about  pain management, exaggerated fears of opioid  side effects and addiction, and fear of legal  consequences when controlled substances are  used.”

The American Medical Association  stated in a 1997 news release that 40 million Americans suffer from serious headache pain  each year, 36 million from backaches, 24 million  from muscle pains, and 20 million from neck pain. An additional 13 million suffer  from intense, intractable, unrelenting pain not  related to cancer. Most of those patients, the AMA warned, receive inadequate care because  of barriers to pain treatment.

A 2004 survey  of the medical literature published in the Annals of Health Law found documented widespread undertreatment of pain among the terminally ill, cancer patients, nursing home residents,  the elderly, and chronic pain patients, as well as in emergency rooms, postoperative  units, and intensive care units.

One reason chronic pain remains undertreated is that there are few doctors who specialize  in the field. Dr. J. David Haddox, the vice  president of health affairs at Purdue Pharma  L.D., the manufacturer of long-acting opioid  medications OxyContin and MSContin, estimates  that between four or five thousand doctors who specialize in pain management treat  the 30 million chronic pain patients who seek  treatment in the United States—about one  doctor for every 6,000 patients. In Florida, just 1  percent or 574 of the state’s 56,926 doctors prescribed  the vast majority of narcotic drugs paid  for by Medicaid in 2003. 

The shortage of pain doctors can in part be  explained by the relatively new, dynamic  nature of pain medicine as well as society’s  aversion to narcotics. It wasn’t until the 1980s  that physicians who specialized in opioid  treatment for pain associated with terminal  cancer began to advocate the same treatment  for nonterminal chronic pain patients.

The  fact that the field is so novel has not only prevented  physicians from seeking it out as a specialty, it initially caused a great deal of debate  within the medical community. Though many physicians now approve of opioid therapy  for nonterminal chronic pain, there was  some initial resistance, from both inside and  outside the medical community. “There’s still  a fear of opiates,’’ University of California at  San Francisco pain expert Allan Basbaum told  the San Francisco Chronicle, “The word ‘morphine’  scares the hell out of people. To many  patients, morphine either means death or addiction.”

In an article for Ramifications, a newsletter for pain specialists, Dr. Karsten F. Konerding of the Richmond Academy of  Medicine compares the contemporary practice  of pain medicine with the infant field of radiology at the turn of the 19th century. One  London newspaper at the time, Konerding  notes, called radiographs of bones and organs “a revolting indecency.”

In addition to a reluctance to enter an  emerging and not altogether accepted field, physicians specializing in pain medicine can  also find themselves caught in a damned-if-you-do, damned-if-you-don’t conundrum with some patients. This study deals primarily with the government’s efforts to minimize the overprescribing of painkillers, but several  physicians have also been sued for underprescribing,  including one California physician who was successfully sued in 2001 for $1.5  million.

But a significant reason pain is undertreated— and increasingly so—is the government’s  decision to prosecute pain doctors who it says  overprescribe prescription narcotics. According to the federal government, a small group of doctors is prescribing hundreds of millions of  dollars of such drugs, many of which are finding  their way to the black market, contributing to an epidemic of addiction, crime, and death.

Over the last several years, federal and state prosecutors have prosecuted licensed physicians  for drug distribution, fraud, manslaughter,  and even murder for the deaths of people who misused and/or overdosed on prescription  painkillers. If convicted, those physicians are  subject to the same mandatory drug sentencing  guidelines designed to punish conventional  drug dealers. Those highly publicized indictments and prosecutions have frightened many physicians out of the field of pain management, leaving only a few thousand doctors in the  country who are still willing to risk prosecution and ruin in order to treat patients suffering  from severe chronic pain.

One 1991 study in Wisconsin, for example, found that over half  the doctors surveyed knowingly undertreated pain in their patients out of fear of retaliation from regulators.

Another 2001 study of  California doctors found that 40 percent of primary care physicians said fear of investigation affected how they treated chronic pain. In  states where state regulatory bodies aggressively monitor physicians’ narcotics-prescribing habits, there is even more reticence among doctors to adequately treat pain.

 “The medical ambiguity is being turned into allegations of criminal behavior,” Dr.  Russell K. Portenoy told the Washington Post.  Portenoy is a pain specialist at Beth Israel  Medical Center in New York, and is considered  one of the fathers of opioid pain therapy.  “We have to draw a line in the sand here, or else the treatment will be lost, and millions of  patients will suffer.” 

A Brief History of  Painkillers and the Law 

From the introduction of heroin from the 1880s until about 1920, narcotics were unregulated  and widely available in the United States.  Drug addiction was largely accidental, due to  the public’s ignorance about the habit-forming  properties of morphine, the most popular  highly addictive drug of the era. Though widely  used for medical operations and convalescence, morphine was also used in everyday potions and elixirs. The drug was commonly regarded as a universal panacea, used to treat as many as 54 diseases, including insanity, diarrhea, dysentery, menstrual and menopausal pain, and  nymphomania.

Opiates were as readily available in drug stores and grocery stores as aspirin, serving many of the same functions that alcohol,  tranquilizers, and antidepressants do today. That perception changed during the progressive  era of the early 20th century, when the  government criminalized the common use of opium.

The first federal law to criminalize the nonmedical use of drugs was the Harrison Act of  1914, which outlawed the nonmedical use of  opium, morphine, and cocaine. The law was supported by advocates of Prohibition. Section 2 of the Harrison Act made it illegal for any physician or druggist to prescribe narcotics to an addict, effectively turning a quarter-million drug-addicted citizens and their doctors into criminals.

By 1916, 124,000  physicians; 47,000 druggists; 37,000 dentists;  11,000 veterinarians; and 1,600 manufacturers, wholesalers, and importers had registered with the Treasury Department, as required by  the Harrison Act. Almost as soon as they had registered, hundreds of doctors were arrested and prosecuted for prescribing narcotics to  addicted patients.

During the first 14 years of the act, U.S. attorneys prosecuted more than 77,000 people, mostly medical professionals, for violating the act. Between 1914  and 1938, about 25,000 doctors were arrested under the terms of the Harrison Act for giving  narcotic prescriptions to addicts. Many were eventually put on trial, and most lost their reputations, careers, and/or life savings. By 1928,  the average sentence for violation of the Harrison Act was one year and 10 months in  prison.

More than 19 percent of all federal prisoners were incarcerated for narcotics offenses. Clinics closed down, and physicians had little choice but to abandon thousands of addicted patients. A black market for narcotics soon arose. 

With the endorsement of powerful public  figures such as Secretary of State William Jennings Bryan, Captain Richmond Pearson Hobson (the “Great Destroyer” of alcohol and narcotics addiction and the Anti-Saloon League’s highest-paid publicist), and Harry J. Anslinger (the first commissioner of narcotics  and former assistant commissioner of Prohibition), the U.S. government inaugurated  an aggressive, unprecedented pursuit of  physicians and their addicted patients.

The Harrison Narcotics Act was repealed in 1970, but was replaced by the Drug Abuse  Prevention and Control Act. DAPCA, along  with the 1975 Supreme Court ruling in the case U.S. v. Moore, reaffirmed the legality of the Harrison Act’s criminalization of doctors who treat addicts by prescribing controlled pharmaceuticals.

In Moore, the Supreme Court confirmed that physicians who are licensed by the Drug Enforcement Agency to  prescribe narcotics under Title II of DAPCA  (called the federal Controlled Substances Act) “can be prosecuted when their activities  fall outside the usual course of professional  practice.”

A doctor could be criminally charged with unlawfully prescribing (or “diverting”) highly addictive narcotic drugs  that the DEA classifies as Schedule II “controlled  substances.” Even though it was passed during a period of general drug tolerance,  DAPCA would prove to be a potent weapon in later years as the War on Drugs  intensified. 

A New Mission for the DEA 

As the federal government’s chief drug law enforcement agency since 1973, the DEA’s  mission has been to “bring to the criminal  and civil justice system substances destined for illicit traffic in the U.S.” Until the 1990s, the DEA focused its resources primarily on illegal black market drugs, such as heroin,  cocaine, crack cocaine, ecstasy, and marijuana, in urban areas. 

But in 1999 the DEA came under heavy criticism from Congress on the grounds that  there was no “measurable proof” that it had  reduced the illegal drug supply in the country. 39 In 2000 and 2001 the Department of Justice, which administers the DEA, gave the agency a highly critical rebuke, and asserted that the Drug Enforcement Agency’s goals were not consistent with the president’s federal National Drug Control Strategy. The DEA would need to find a new front for the  War on Drugs, one that could produce tangible, measurable results. 

The Controlled Substances Act empowered  the DEA to regulate all pharmaceutical drugs. In 2002 Glen A. Fine, the inspector general of the Department of Justice, asked  why the DEA wasn’t doing more to combat  prescription drug abuse when it was “a problem equal to cocaine.”

Fine claimed that, while 4.1 million Americans used cocaine in 2001, 6.4 million illegally used prescription narcotic painkillers that same year. He also claimed that the illicit use of pain medication accounted for 30 percent of all emergency room drug-related deaths and injuries. In 2001 the DEA had already announced a  major new anti-drug campaign: the OxyContin Action Plan.

The agency underscored the threat of prescription drug abuse by asserting  that the number of people who “abuse controlled  pharmaceuticals each year equals the number who abuse cocaine—2 to 4 percent of  the U.S. population.”

The agency also claimed that prescription drugs increased the number of overdose deaths by 25 percent and accounted for 20 percent of all emergency room visits for drug overdoses.44 Criticism from Congress  and the Department of Justice the following year reaffirmed the agency’s determination to crack down on prescription drugs. 

The  OxyContin plan would elevate a legal, prescription drug to the status of cocaine and other Schedule II substances. That shift put pain doctors in the DEA’s crosshairs, as susceptible to investigation as conventional drug dealers. 

In September of 2003, at the 69-count indictment of Virginia doctor William Hurwitz, U.S. Attorney Mark Lytle claimed that the physician  was complicit in the deaths of three patients, and compared William Hurwitz to a “streetcorner crack dealer.” Lytle further argued that  Dr. Hurwitz posed such a threat to the community  that he should be denied bail.

The OxyContin Action Plan bore a remarkable resemblance to the Harrison Act in that it enabled the federal government to prosecute  physicians who prescribed an otherwise legal narcotic drug, due to unfounded fears of a  “dope menace” sweeping the country. DEA  commissioner Asa Hutchinson described the nonmedical use of OxyContin as a deadly new drug epidemic beginning in Appalachia and  spreading to the East Coast and Midwest,  infecting suburban, urban, and rural neighborhoods across the country:

In the past, Americans viewed drug abuse and addiction as an overwhelmingly urban problem. As the drug problem escalated, drugs began to stream  into rural neighborhoods throughout small town America. Residents began to feel the impact of drugs such as marijuana, cocaine, methamphetamine,  MDMA, heroin, and OxyContin, which  entered their towns at an alarming rate. Violence associated with drug trafficking also became part of the landscape in  small cities and rural areas.

This was the first time that the DEA had  grouped a legal, prescription drug with illicit drugs, though it wouldn’t be the last. Government officials like Hutchinson have gone on to make frequent public statements  putting OxyContin in close rhetorical proximity  to cocaine, heroin, and other drugs with a proven record for generating public fear. During congressional testimony in April 2002, 

Hutchinson explained the necessity for renewed vigilance in the War on Drugs, and why the new front against prescription painkillers was necessary. He announced that  the DEA would reallocate many of its resources from illegal drugs in urban areas to illicit prescription drugs in rural areas in order to address the emerging opioid threat.  Hutchinson said that the DEA would work with local and state law enforcement agencies in the effort, and would use its Asset Forfeiture Fund to help state and local officials finance the new initiative.

The DEA’s public relations effort linking  a pain medication like OxyContin to cocaine, heroin, and other prohibited substances was  a marked departure from its traditional mission. In fact, the DEA had created a new mission  for itself—combating the illegal diversion  of otherwise legal medication. 

Where the conventional drug war targeted black markets and the unknown, hard-to-quantify entities that come with them, the new mission offered in practicing physicians a pool of  registered, licensed, cooperative targets who kept records, paid taxes, and filled out a variety of forms. 

Justifying the OxyContin  Campaign 

In an effort to justify its national campaign against OxyContin, the DEA contacted 775 medical examiners from the National Association of Medical Examiners in 2001 and instructed them to report “OxyContinrelated deaths” for 2000 and 2001. On the basis of those reports, the DEA subsequently  announced 464 “OxyContin-related deaths”  over those two years.

But the conclusions the DEA drew from  this data are significantly flawed.  First, the DEA’s criteria for “OxyContin-related  deaths” are problematic. There are 58  pain relief drugs that contain oxycodone. OxyContin is simply one of three single-entity,  long-acting, oxycodone drugs. There are  numerous other less potent, short–acting, oxycodone  drugs, such as Percocet, Percodan, and  Roxicet that also contain nonnarcotic pain relievers such as aspirin or Tylenol. 

OxyContin is Purdue Pharma’s brand name drug. It’s popular because it provides long-acting relief from pain for up to 12 hours, which enables pain sufferers  to sleep through the night. Since there is no chemical test to distinguish OxyContin from the other oxycodone drugs, it is difficult to see how the DEA could definitively assert that a death attributable to oxycodone is due to OxyContin and not other short-acting oxycodone drugs. Nevertheless, the DEA counts as  an “OxyContin-related death” any death in which oxycodone is detected without the presence of aspirin or Tylenol.

Second, if an OxyContin tablet is found in the gastrointestinal tract of a deceased person, the DEA labels it an “OxyContin-verified death,” regardless of other circumstances. Even more problematic, if investigators find OxyContin pills or prescriptions at a crime scene, or a family member or witness merely mentions the presence of OxyContin, the death is also confirmed as “OxyContin-verified.”

Obviously the mere presence of OxyContin in the system of the deceased, or the mere mention of the drug by friends or family members is far from verification that  OxyContin—either alone or in conjunction with other factors—actually caused a premature  death. 

Third, overdose victims tend to have multiple drugs in their bodies. Approximately 40  percent of the autopsy reports of OxyContin-related deaths showed the presence of Valium-like  drugs. Another 40 percent contained a second opiate such as Vicodin, Lortab, or Lorcet, in addition to oxycodone. Thirty percent  showed an antidepressant such as Prozac, 15  percent showed cocaine, and 14 percent indicated the presence of over-the-counter antihistamines  or cold medications. 

Deaths like those could be the result of any of the drugs  present, drugs working in combination, or  one or more drugs plus the effects of other conditions, such as illness or disease. Indeed,  the March 2003 issue of the Journal of  Analytical Toxicology found that of the 919  deaths related to oxycodone in 23 states over a three-year period, only 12 showed confirmed  evidence of the presence of oxycodone alone in  the system of the deceased.

About 70 percent  of the deaths were due to “multiple drug poisoning”  of other oxycodone-containing drugs  in combination with Valium-type tranquilizers, alcohol, cocaine, marijuana, and/or other  narcotics and anti-depressants. That is  strong evidence that many of the deaths attributed to OxyContin by government officials  are not the result of unknowing pain  patients who grew addicted and overdosed, but of habitual drug users who may have used  the drug with any number of other substances, any one of which could have contributed to overdose and death. 

In the absence of opioids like OxyContin, habitual users will, in all likelihood, merely switch to more available drugs. However, pain patients who rely on the drug for relief don’t have that option. They’re far more likely  to suffer from the scarcity caused by the  DEA’s crackdown than are the common drug abusers the agency claims it is targeting.

A final problem with the DEA’s claims of an OxyContin epidemic is the agency’s inflated  estimate of risk of death. In 2000 physicians  wrote 7.1 million prescriptions for oxycodone products without aspirin or Tylenol, 5.8 million  of them for OxyContin.

According to the DEA’s own autopsy data, there were 146 “OxyContin-verified deaths” that year, and 318  “OxyContin-likely deaths,” for a total of 464  “OxyContin-related deaths.” That amounts  to a risk of just 0.00008 percent, or eight deaths  per 100,000 OxyContin prescriptions—2.5  “verified,” and 5.5 “likely-related.” Even those  figures are calculated only after taking the  DEA’s troubling conclusions about causation  at face value. 

By contrast, approximately 16,500 people die each year from gastrointestinal bleeding  associated with nonsteroidal anti-inflammatory  drugs (NSAIDs) like aspirin or ibuprofen. NSAIDS aren’t as effective as opioids at  treating severe, chronic pain. Both classes of painkillers have beneficial medical uses. One is also found on the black market and may  lead to occasional deaths by overdose. The other isn’t used recreationally, but causes 35 times more deaths per year.

Given these numbers, all of the time, energy,  tax dollars, and worry expended on eradicating  the OxyContin “threat”—not to mention  the menace to civil liberties—seems  unfounded. 

Another Bout of Drug Hysteria 

In order to justify its crackdown on prescription  painkillers, the federal government would first need to persuade the public of the threat posed by prescription opioids. Unfortunately, the media has been far too willing to  accept the DEA’s claims at face value, just as it  has with previous drug “epidemics.”

To convince the public that there is an opioid  drug threat, the DEA compared OxyContin to crack, cocaine, and heroin, the most feared  drugs of the 1980s and ’90s. Commissioner Asa  Hutchinson testified before Congress in 2002  that OxyContin delivers a “heroin-like high,” and that the drug has led to an “increase in  criminal activity.”

Many mainstream media  reports echoed these claims. Newsweek, for  example, ran a story in 2002 about “Oxybabies,”  the children of pregnant women on OxyContin, who bore a striking resemblance to the rash of “crack babies” reported in the 1980s. The article did point out that despite stories that OxyContin abuse has “swept  through parts of Appalachia and rural New  England,” the number of documented cases of addicted newborns is small, “in the dozens,”  and that “OxyContin, like other opiates, doesn’t appear to cause birth defects.” 

After citing a  few anecdotal cases of newborns with some  health problems that may or may not have been  related to OxyContin, reporter Debra Rosenberg still ended the article by questioning whether Oxybabies are a “blip—or an epidemic  in the making.” But the article’s evidence indicates  the former, so strongly in fact that one  wonders why an article on Oxybabies was necessary  in the first place. 

Newspapers and magazines reported on the alleged rising death toll from OxyContin, and that the outbreak in opioid abuse posed a  greater threat to public health and welfare  than cocaine. Soon, arrest and overdose statistics were juxtaposed with OxyContin sales figures, painting the grim picture of an American pharmaceutical company willing to peddle addiction and death for a quick buck. 

A few examples: 

• Time ran a story in January 2001, reporting  that “OxyContin may succeed crack cocaine on the street.” In Pulaski, Virginia, OxyContin had overtaken cocaine and marijuana, Time reported, and property crime was up 50 percent. Police in three states reported robberies of pharmacies, as well as the homes of people known to take OxyContin legitimately (how the burglars knew who was taking  the drug isn’t clear). Both of course are  means by which OxyContin may have  found its way to the street that wouldn’t  require prescriptions from a diverting doctor. Still, the article seemed to focus on physicians. U.S. attorney Jay McCloskey  was described in the article as a man “waging a war against the doctors who write prescriptions.” 

• On February 3, 2001, US News and World Report published an article about the danger of OxyContin under the headline  “The ‘Poor Man’s Heroin.’” The article  featured Dr. John F. Lilly, a 48-year-old  orthopedist and proprietor of a pain clinic  who was also under investigation for diversion. Prosecutors claimed that Dr. Lilly ran a “pill mill” that supplied illegal narcotics to addicts in the slums of the  industrial city of Portsmouth, Ohio. Local law enforcement officials told the magazine that OxyContin abuse was reaching near-epidemic levels in rural areas. Shortly  after Dr. Lilly opened his clinic, drug-related  crimes apparently started to increase. But police also claimed that burglaries increased 20 percent in 2000, again suggesting that the drug was getting to the street by means other than doctors’ prescriptions. 

• On February 8, 2001, the New York Times reported a claim by U.S. attorney Joseph  Famularo that at least 59 people had died  from OxyContin overdoses in Eastern Kentucky in 2000 alone.63 He said OxyContin had set off a wave of pharmacy burglaries, emergency room visits, and  physician arrests. Rick Moorer, an investigator  with the state medical examiner’s  office in Roanoke, Virginia, reported that  there were 16 deaths in southwestern  Virginia due to OxyContin in combination with other drugs and alcohol. 

Again, there’s simply no test to determine whether or not OxyContin caused or contributed  to those overdose deaths. And even if  there were such a test, it’s just as likely the drugs came from Internet pharmacies, or home or drug store robberies as from diverting doctors.  The Times article also reported data showing  hospital emergency room visits by people “involving oxycodone” increased from 3,190 in  1996 to 6,429 in 1999. 

The Times article doesn’t  give a source or context when it reports that  “federal data” show an increase in ER visits  “involving oxycodone.” But presumably, they come from the Drug Abuse Warning Network— or DAWN—report, published by the U.S.  Department of Health and Human Services. That report’s findings seem to mirror the numbers  in the Times.

But the DAWN report only cites “mentions” of oxycodone-related drugs in emergency room reports, which can include cases in which oxycodone medication had nothing to do with why the patient came to the emergency room. In fact, in more than 70 percent  of emergency room visits involving oxycodone, patients mentioned the drug in conjunction with at least one other controlled drug. 

Certainly, abuse of increasingly abundant  oxycodone medication will lead to some  increase in emergency room visits attributable solely to the drug. But the drug’s increasing availability also means that it’s going to be present  in more people who visit emergency rooms  for other reasons. And that more people are  abusing the drug is also no reason to suspect  that corrupt physicians are the source of the  problem. 

The most unfortunate effect of these kinds of stories is that they reinforce existing qualms about opioids. Patients, their families, and even caretakers understandably get nervous when they hear “morphine,” or “opioid therapy,”  which naturally sounds a lot like “opium.”  In truth, however, the medical evidence overwhelmingly  indicates that when administered properly, opioid therapy rarely, if ever, results  in “accidental addiction” or opioid abuse.

Most recently, a 2005 study by researchers at the Minneapolis VA Medical Center concluded, “doubts or concerns about opioid efficacy,  toxicity, tolerance, and abuse or addiction should not be used to justify the withholding of opioids from patients who have pain.”  Temple pharmacology professor Robert Raffa told Time magazine, “The idea that your mom will go into a hospital, be exposed to morphine, and automatically become an addict is just plain wrong.”  The distinction—which seems especially  difficult for law enforcement officials and policymakers  to make—is between “physical  dependence” and “addiction.” A patient incapacitated  by pain will naturally become dependent on any medication that gives him relief.  But that’s quite different from addiction.  Opioid therapy can give patients the freedom to lead normal lives, whereas addiction ruins lives. It’s a confusion that can be tragic. One doctor told Time he was treating a terminally ill boy whose father didn’t want his son on morphine because he was “afraid the boy would become an addict.” 

As the Time reporter wrote, “In his grief over the imminent loss of his son, it seems, the father failed to see the absurdity of worrying about long-term addiction in a child who is dying in pain.” 

The odd thing is that well before the  OxyContin hysteria and ensuing DEA campaign, many media outlets were making those same  points and providing balanced reporting on the  undertreatment of pain. The Time article noted  above came out in 1997. Also in 1997, U.S. News  and World Report ran a 4,400-word cover story on  the plight of pain patients.

In one passage, the  magazine eloquently laid out the problem:  What is lacking is not the way to treat pain effectively but the will to do it. For a quarter of a century, pain specialists  have been warning with increasing stridency that pain is undertreated in America. But a wide array of social forces continue to thwart efforts to improve treatment. Narcotics are the most powerful  painkillers available, but doctors  are afraid to prescribe them out of fear  they will be prosecuted by overzealous  law enforcers, or that they will turn their  patients into addicts . . . . 

“We are pharmacological  Calvinists,” says Dr. Steven  Hyman, director of the National Institute of Mental Health. The authors go on to state:  But at the heart of the debate is confusion  about what constitutes addiction  and what is simply physical dependence. 

Most people who take morphine for more than a few days become physically dependent, suffering temporary  withdrawal symptoms—nausea, muscle  cramps, chills—if they stop taking it  abruptly, without tapering the dose.  But few exhibit the classic signs of  addiction: a compulsive craving for the  drug’s euphoric or calming effects, and continued abuse of the drug even when  to do so is obviously self-destructive. In three studies involving nearly 25,000 cancer patients, [researcher Russell] Portenoy found that only seven became addicted to the narcotics they were taking . . . “If we called this drug by another name, if morphine  didn’t have a stigma, we wouldn’t be  fighting about it,” says [researcher Kathleen] Foley.

Even physicians can fall victim to the  “addiction” versus “dependence” confusion—  giving rise to yet another cause of undertreatment.  Twenty-five percent of Texas physicians  in one survey said they believed any patient given opioids is at risk of addiction.  Thirty-five percent of physicians in a 2001 study said they’d never prescribe opioids on a  short-term basis, even after a thorough evaluation,  a response the survey’s researchers attributed to unfounded fears of addiction.

Again, this despite overwhelming evidence that properly prescribed and used opioids rarely, if ever, lead to addiction. 

“OxyContin under Fire” 

One of the more egregious examples of  media-induced OxyContin hysteria was Doris  Bloodsworth’s five-part Orlando Sentinel series  from October 19–23, 2003, entitled “OxyContin under Fire.” 

The Sentinel series was heavily advertised and promoted as an exposé of the OxyContin epidemic sweeping the country. Including  Bloodsworth’s pieces, the Sentinel ran 19 OxyContin-related articles and editorials that month, complete with photos of victims,  flashy layouts, and insert boxes designed to elicit maximum emotional impact. The series spotlighted several patients described as “accidentally  addicted” to OxyContin. 

Some of them, Bloodsworth reported, experienced  painful withdrawal effects. Some saw their families fall apart. Some died of overdoses or committed suicide. Bloodsworth alleged that white males aged 30 to 60 who experience back pain are particularly likely to become  addicted to OxyContin, and to eventually die  from that addiction. 

One of the featured victims was David Rokisky, a 36-year-old former Army Airborne soldier and police officer living in Tampa,  Florida. According to Bloodsworth, Rokisky  had a bodybuilder’s physique, a beautiful  young wife, a high-paying job as a computer company executive, and a beachfront condo. Rokisky’s life was idyllic, Bloodsworth reported, until a doctor prescribed OxyContin to treat a minor backache. 

According to the Sentinel, Rokisky quickly became an innocent  victim of drug addiction. He eventually lost  his job and had to undergo painful detoxification. The series also featured Gerry Cover, a 39-year-old Kissimmee, Florida, handyman and  father of three. Bloodsworth reported that  Cover became an addict after a doctor prescribed OxyContin to relieve his pain from a mild herniated disc in his back. Cover subsequently died from an accidental overdose of  the drug. 

Bloodsworth wrote that although members of Congress and the FDA were aware of “the devastation (OxyContin) has carved through Appalachia where the drug became  known as ‘hillbilly heroin,’” neither had done anything to slow down the epidemic. She blamed Purdue Pharma for aggressively marketing  OxyContin to naïve and unscrupulous doctors, who likewise used the drug to “boost their profits.”

According to Bloodsworth,  there were 573 deaths in Florida linked to oxycodone  in 2001 and 2002. By comparison,  Bloodsworth reported that only 521 people died of heroin overdoses during the same period.

The 573 figure apparently came from the  Sentinel’s review of thousands of documents, including 500 autopsy reports by Florida’s  medical examiners. The paper claimed that a remarkable 83 percent of the 247 cases of reported drug overdose deaths over that period  were directly attributable to OxyContin. It would be difficult to overstate how much the Sentinel series contributed to nationwide  OxyContin fears. 

It prompted an anti-opioid grass-roots protest movement in Florida. The newspaper’s critique of lawmakers for “doing nothing” stirred emotion and legislative action on the local, state, and national level. In November 2003, one month after the series appeared, protestors from all over the country  converged on Florida to picket Gov. Jeb Bush  and his wife, who were attending a three-day conference on youth drug abuse in Orlando.  Members of “Relatives against Purdue Pharma” carried poster-sized photos of family and friends who allegedly died from OxyContin overdoses.

Victor Del Regno, a Rhode Island  business executive whose 20-year-old son died, allegedly from OxyContin, told the Sentinel, “We feel there has to be a way to get the word out about how deadly this drug can be.” Governor Bush and state lawmakers were sympathetic, and promised to put an end to  the “hemorrhaging of lost lives” allegedly caused by prescription painkillers.

During congressional testimony inspired by the Sentinel series and its aftermath, Florida director of drug control James McDonough praised Doris Bloodsworth’s series, and cited her estimates of OxyContin overdose deaths. He said that in response to the Sentinel and other reports, Florida had taken “aggressive action against [diversion] criminal practices.”

McDonough boasted that Florida law enforcement had taken action since the Sentinel series, including the prosecutions of Dr. James  Graves (a former Navy flight surgeon), convicted on four counts of manslaughter for prescribing  oxycodone; Dr. Sarfraz Mirza, convicted  of trafficking in OxyContin; and Dr. Michell Wich and Dr. Asuncion Luyao, convicted of prescription overdose deaths.

Bloodsworth’s claims about the OxyContin epidemic were picked up and repeated in newspapers and media outlets all over the country.  They were even included in a General Accounting Office report on OxyContin abuse requested by Congress. GAO cited the Sentinel series  and said that the newspaper’s investigation of autopsy reports involving oxycodone-related deaths found that OxyContin had been  involved in more than 200 overdose deaths in Florida since 2000.

Thanks in large part to the Sentinel series, Florida today is one of the most difficult  states in the country for pain patients to get  treatment, and its legislature only narrowly voted down a bill establishing a statewide database to track and monitor painkiller prescriptions.

The Sentinel Series Unravels 

In February of 2004, the Orlando Sentinel series on OxyContin began to fall apart. Investigations by Purdue Pharma and advocates for pain patients uncovered numerous and grievous errors in Bloodsworth’s reports. The Washington Post reported that David Rokisky had pled guilty to drug conspiracy in a cocaine case four years previous to the series’ publication. Far from leading an idyllic life wrecked by OxyContin, Rokisky in fact had a long history of domestic-abuse allegations and financial problems.

“Accidental  addict” Gerry Cover proved to be a longtime drug abuser too, and had been hospitalized for an overdose on other drugs three months  before he had been prescribed OxyContin.87  Bloodsworth’s misrepresentation of OxyContin overdose deaths was even more egregious than her mischaracterizations of the alleged victims of the drug. 

The series completely  distorted the Florida medical examiners’ drug overdose deaths data for 2000 and 2001. Instead of more than 570 deaths linked to  OxyContin the Sentinel reported for those years, the medical examiners’ reports reveal the actual total for those years was 71—35 in 2001, and 36  in 2002. The Sentinel had included not only deaths where oxycodone alone was present in the system of the deceased, but also deaths in  which any oxycodone product was present in  combination with any number of other drugs. There were 317 such deaths in 2001, and 220 in 2002, giving the Sentinel its 573 deaths.

In truth, even those 71 overdose deaths over the Sentinel’s two-year period are suspect. That’s because Florida’s medical examiners report only 14 drug groups in autopsy reports. It’s likely that there were any number of unreported drugs in the systems of 71 people where only oxycodone was found, not to mention that any number of them might have died for reasons completely unrelated to drugs. For example, the  deceased may also have been taking antidepressants, heart medication, and/or diabetic  medications, any of which could have potentially contributed to the cause of death. That’s particularly likely where the deceased is over 50  years of age—true of about a third of the 71 Florida cases. 

After a barrage of criticism, the Orlando Sentinel finally acknowledged its errors in the series, and in February 2004 announced Doris Bloodsworth’s resignation from the paper. The two editors who worked on the series were also reassigned. 

In a front-page correction, the Sentinel  wrote the following:  An Orlando Sentinel series in October  about the drug OxyContin used a key statistic incorrectly and overstated the number of overdoses caused solely by oxycodone, the active ingredient in  OxyContin and other prescription painkillers. 

In roughly three out of four cases, medical examiners concluded that at least one other drug also contributed  to the victims’ deaths. . . . 

According to the Sentinel’s re-examination,  blood samples in about 38 percent of the oxycodone-related deaths showed the presence of heroin, cocaine,  methamphetamine and/or marijuana. Many other victims also had consumed one or more commonly abused prescription drugs, such as Xanax or Vicodin.

In February, the Sentinel published a  story correcting factual errors about two men featured in the series. The newspaper had labeled one of them, David Rokisky, an “accidental addict” without doing background reporting that would have shown he had a federal drug conviction. The other, the late Gerry Cover, died from an overdose caused by a combination of drugs rather than oxycodone alone. 

Despite the Sentinel’s retraction, other  media outlets have continued to drum up the  OxyContin threat, many of them making the  same errors the Sentinel did. Here are a few examples: 

• In late August of 2004, the Montreal Gazette reported that “the prescription  painkiller nicknamed ‘hillbilly heroin’ in the U.S., was a contributing factor in at least 26 overdose deaths in Quebec since  1999.” Remarkably, the paper went on to draw the same conclusions about autopsy reporting as the Sentinel. The Gazette reported that “other narcotic  substances were also detected, suggesting that OxyContin alone might not  have caused some deaths,” a caveat that  severely undermines the alarming lead. 

• That same month, the Ottawa Citizen reported that “in the past five years there were 300 deaths in which oxycodone, the opiate found in OxyContin and the drug brand Percocet, was detected in the  body.” That number again means very little when not supported with other  information, such as what other drugs were found in the bodies, what illnesses the deceased were suffering from, and how many OxyContin prescriptions were written in comparison to those 300 deaths. 

• Also in August 2004, the Boston Globe ran a story on federal grants coming to the Boston area that would be used to target OxyContin abuse. One local official  told the Globe, “we are going to . . . bring the danger of OxyContin right out there so everyone is going to know how bad it  is,” and that “OxyContin use can lead to heroin use.” A local mayor called OxyContin “the number one health crisis in cities and towns at this time.” Despite the Sentinel fiasco, media outlets continued to perpetuate OxyContin fears by reiterating overdose statistics based on questionable science and quoting public officials  without a bit of skepticism or any effort to  elicit rebuttals from drug war critics or pain patient advocates. 

Eradicating the Prescription  Painkiller “Threat” 

The DEA’s new mission to thwart the  diversion of prescription painkillers was a significant undertaking, one that would require extra manpower and resources. As part of its OxyContin Action Plan, the agency carried out more than 400 investigations resulting in the arrest of 600 individuals from May 2001 to January 2004. Sixty percent of those cases involved medical professionals, most of them doctors and pharmacists (the remaining cases could include manufacturers and wholesalers). 

To implement its new program, the DEA participated in the Organized Crime Drug Enforcement Task Force and worked cooperatively  with state and local drug task forces. OCDETF combines the resources of federal, state, and local law enforcement under the coordination of U.S. attorneys. In 2001 the  DEA deputized 1,554 state and local officers  from large and small police departments  across the country to coordinate prescription drug investigations. In 2002, 1,172 DEA  Special Agents worked alongside 1,916 state and local police officers in 207 separate task forces. This sharing of resources significantly expanded the OxyContin Plan’s reach. To see how the task force plan gave the DEA more reach, consider drug war statistics from 1999. 

In that year, the DEA initiated 1,699 investigations on its own but was able to extend its investigative reach by working cooperatively  with state and local law enforcement officials  in more than 9,000 additional task force cases. The DEA also trained more than 64,000 state and local law enforcement personnel  in 2001 at its Training Academy in  Quantico, Virginia, as well as at the agency’s 22 domestic field divisions throughout the  United States. These task forces accounted for 40 percent of the DEA’s prescription narcotics seizure and forfeiture cases. 

The DEA’s Diversion Control Program is also a self-financing, autonomous law enforcement agency that is largely unaccountable to  congressional oversight. It’s mostly financed  by the licenses it requires all doctors, manufacturers, pharmacists and wholesalers to purchase, and in part by the assets it seizes when it  raids the businesses and personal finances of those same licensees. 

The DEA sets annual production quotas  for the manufacturers of narcotic drugs, and the agency attempts to monitor the wholesale  and retail distribution of those drugs,  though with decidedly mixed results. In fact, large quantities of narcotics routinely go missing en route from manufacturers to wholesalers and from wholesalers to retailers. The DEA itself acknowledges this problem. The agency notes that there is an increase in OxyContin burglaries, thefts, and robberies of hospitals and pharmacies throughout the country, including at Purdue Pharma, the manufacturer of OxyContin. 

In one recent case in Arizona, nearly  475,000 tablets of narcotic drugs disappeared from Kino Community Hospital’s pharmacy between May 1, 2002, and April 30, 2004. Drug stores in rural areas have also been targets for burglars seeking OxyContin, and the Internet has become a major underground source for the drug. In an investigative series, the Star-Ledger newspaper in New Jersey actually ordered OxyContin over the Internet, along with other prescription  narcotics. 

The paper reported no contact with a physician, and the drugs were delivered  to a rented mailbox within days of placing the order. Given the poor job the DEA is doing of monitoring the narcotics it’s charged with overseeing, and the various ways the drug apparently can move from manufacturers and wholesalers to the black market, the DEA’s blame and pursuit of  physicians for the drug’s street availability seems all the more arbitrary, unjustified, and  capricious. “Pills are a problem in Southwest  Virginia,” one assistant U.S. attorney told the  Roanoke Times in 2001, “And the only way you can get prescription pills is to go to the doctor.” But that’s clearly not the case. 

In 1993 Congress created the self-financed Diversion Control Fund, which was to be funded by narcotics licensing fees. The DEA is  authorized to increase the license fees to make  sure the Diversion Control Program remains fully funded. The setup is similar to that of the Health Care Fraud and Abuse Control Program, which monitors doctors for alleged fraud and abuse with respect to Medicaid and  Medicare. 

In 2003 the DEA doubled its license fees to pay for the cost of the program. Under DEA rules, doctors must buy licenses for three year  periods at $131, while pharmaceutical companies pay $1,605 per annum for licenses to make drugs. These licensing fees bring in about $118 million a year. The Diversion Control Program currently costs about $154  million per year. The rest of the DCP’s funding comes from the annual congressional budget  for the DEA, and from the DOJ’s Asset  Forfeiture Fund, which is financed by seizures of assets from doctors and pharmacists under investigation for drug diversion, as well as from illicit drug dealers and users. In 2005 the DEA  requested an additional $245.4 million for drug enforcement, including $32.6 million for diversion control.

According to the Controlled Substances Act, all monies or other things of value furnished by any person in exchange for controlled  substances are subject to forfeiture. The money from these seizures get split between the law enforcement agencies making the bust, and the remainder goes to the  DOJ’s Forfeiture Fund, where it’s used to  coordinate more investigations. 

In 2002 drug asset forfeitures totaled $441 million. And in 2001 the DEA shared $179,264,498 of its asset forfeitures with local and state police  departments. The total forfeiture fund was worth about $1.2 billion by 2002. The vast majority of asset forfeiture money is distributed  by the DEA to state and local law enforcement agencies who work with the  agency on drug cases. It is a perverse system  that allows law enforcement officials to keep the assets of suspected drug defendants for their own, local police departments. 

Detective Dennis M. Luken, of the Warren-Clinton Drug and Strategic Operations Task Force in Lebanon, Ohio, and Treasurer of the  National Association of Diversion Drug Investigators, laid out the financial necessity of targeting physicians for investigation at a 2003  training conference for drug diversion agents. Luken, who worked on an asset forfeiture squad  for three and a half years, said that in an “era of  budget cuts, forfeitures are an important way to make up for the losses.” Luken said that the task force arrests five doctors a year in the Cincinnati area alone. 

Seizing a doctor’s assets to supplement strained law enforcement budgets was a recurring theme at the NADDI training  conference, held in Ft. Lauderdale, Florida. Greg Aspinwall of the Miami Dade Drug Task  Force, for example, stressed the importance of taking a task force approach to diversion investigations  by using the theme “spreading the  love.”

He instructed trainees to get as many law enforcement agencies as possible involved in investigations. The method reduces costs, he  said, and guarantees that “everybody gets their fair cut from the forfeitures.” He pointed out that even if criminal charges are never filed, a  police department can still bring a civil action against a suspected doctor to recover the cost of  an investigation. 

In his lecture, Detective Luken also focused on “drug-diverting” doctors and stressed the importance of seizing their assets. He urged investigators to serve search warrants on doctors’ offices and bank accounts and to take possession of their contents. If the doctor does not have a sizable bank account, Luken said, investigators should look at a physician’s home or office  building, given that both were likely paid for with the proceeds of drug distribution. Luken implored agents to “remember that asset forfeiture investigation should begin at  the start of your criminal case.”

Detective  Luken discussed the cases of several physicians he had overseen and noted that investigators  seized money and property from them before they were indicted or tried for any  crime. 

Luken then cited a number of cases in  which physicians had had their assets seized before ever being charged. One case he mentioned,  that of Dr. Eli Schneider, resulted in the seizure of $220,000. Of that money, the  Ohio Medicaid Fraud Control Unit received $3,752, the Ohio Department of Health and Human Services got $24,000, the Cincinnati Police Department $29,000, the FBI $14,000,  and the U.S. Department of Health and Human Services $50,000. 

Calls to local authorities and public records searches don’t reveal whether or not Dr. Schneider was ultimately convicted. Many times, however, such forfeitures result in plea bargains or civil settlements, given that the cases can drag on for years, and asset seizure leaves the accused with no means to live, much less to pay attorney’s fees and court costs. 

The case of Kentucky physician Dr. Ghassan Haj-Hamed is a good  example. The DEA sued Dr. Haj-Hamed in 2002, accusing his clinic of diversion and drug distribution. After more than two years, the doctor agreed to settle, paying $17,000 and  handing over two automobiles in exchange for the federal government dropping its suit for  $133,000. Haj-Hamed’s lawyer told the Kentucky Post that the government’s practice of  eizing all of a doctor’s assets, then expecting him to fight the case, all while still paying taxes and earning a living, “inevitably puts the person in a position where they have to settle.”

Prosecutors haven’t yet decided  whether or not to pursue criminal charges. Because the Diversion Control Program is self-financed, it is nearly immune from congressional oversight. Its administrators aren’t required to justify its existence, its tactics, or its efficacy when it comes time for appropriations. The program also creates a scenario wherein doctors are required to finance investigations of their colleagues, co-practitioners,  or even themselves. Should the doctors’ colleagues be investigated, law enforcement officials are encouraged to seize their colleagues’ assets, much of the proceeds of which then go toward financing more investigations. From October 1999 through March 2002,  the DEA investigated 247 OxyContin diversion cases leading to 328 arrests.

In 2001 there were 3,097 total diversion investigations, including 861 investigations of doctors. In 2003 the DEA investigated 732 doctors, sanctioned 584, and arrested 50. These numbers do not include physicians investigated and  arrested by the 207 DEA-deputized state and local task forces throughout the country. Putting a total number on how many doctors, nurses, and pharmacists have been investigated,  charged, or convicted is difficult. The  DEA says it no longer keeps track of such statistics. 

Some states account for physician arrests; others don’t. Virginia, for example, says it prosecutes on average one health care professional per week. Many doctors do as Dr. Ghassan Haj-Hamed did and settle before charges are brought—because after forfeiture,  they generally have no assets left to fight the  charges. 

Investigating and Apprehending Pain Patients and their Doctors 

The DEA defines an “addict” as “any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or  welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control  with reference to his addiction.”

The  DEA’s conception of an addict, then, includes  what pain specialists call “pseudoaddicts”—pain patients who require opiates to lead a normal  life. Pain specialists make an important distinction between patients who depend on opiates to  function normally—to get out of bed, tend to  household chores, and hold down jobs—and addicts who take drugs for euphoria, and whose lifestyles deteriorate as a result of taking opiates, instead of improving. The DEA makes no such distinction. And by classifying pain patients as addicts, the agency is able to pursue their doctors as “distributors.” 

What’s worse, due to unwavering drug laws mandating that possession of any controlled substance over a specified amount constitutes an intent to distribute, pain patients are often considered “dealers” too—even if (as is most  often the case) their entire supply of prescription  drugs are for their own use. 

That’s exactly what happened to Florida pain patient Richard Paey. Paey suffers from  multiple sclerosis, as well as from injuries incurred in a car accident and a botched back surgery. Given the anti-drug climate in Florida, Paey found it difficult to find a physician who would prescribe the high-dose pain medication he needed to live with his injuries. 

So Paey turned to his old doctor in New Jersey, who wrote Paey undated prescriptions that  Paey then photocopied and filled. Though he  conceded that Paey’s medication was for his own use, Paey’s prosecutor nonetheless charged him with “intent to distribute,” because the amount of narcotics Paey had in his possession exceeded the limit needed to be charged with distribution. After two mistrials, Paey was convicted at a third trial. Mandatory minimum sentencing guidelines gave a reluctant judge no choice but to send Paey to prison for 25 years and fine him $500,000. 

Today, Paey sits in a Florida prison with a morphine  pump, paid for by Florida taxpayers. More often, however, prosecutors use the  threat of imprisonment to get pain patients to turn in their doctors, who make better targets. And, of course, once pain patients can be  called “addicts,” the government is free to go after the doctors who treat them as “conspirators”  in the illegal drug trade. 

In the case of Dr.  Hurwitz, around 15 of his more than 500 pain patients over three years were lying to him and selling the drugs he prescribed on the black market. Investigators could have alerted Hurwitz to his unlawful patients and asked for his help in nabbing them—he had already openly cooperated with law enforcement, offering access to vast amounts of patient paperwork over the course of four years. 

Instead, investigators continued to let  Hurwitz prescribe to known dealers, then later offered the lying patients lenient sentences in  exchange for testimony against Hurwitz. 

In his speech at the NADDI conference, Detective Luken likened pain specialists to illegal drug dealers, and explained that pain doctors sell pain medication for money, sex, or to feed their drug habits or those of family  members or girlfriends—just as common  drug pushers do. Doctors in practice by themselves and older doctors are often painted  by investigators as rubes, easily duped by addicts or unable to stop freely prescribing narcotics in the manner they did during more permissive times. 

To target doctors, investigators look for “red flags” they believe are indicative of potentially criminal behavior. These red flags are  generally circumstantial evidence found during  standard criminal investigative procedures. The problem with red flags is that what  may appear to be evidence of criminal behavior  to an investigator without medical training  is often perfectly consistent with legitimate  medical practice, particularly in a dynamic field like pain management. Criminal investigators without medical training simply aren’t  qualified to tell the difference. Yet they routinely make such decisions, and such close judgment calls can cause the criminal prosecution  of an otherwise legitimate physician. 

According to the DEA, the prosecution of any given doctor is based on whether there is a  “legitimate medical purpose” for a prescription  he has written or whether it is “beyond  the bounds of medical practice.” But prosecutors concede that there are no specific guidelines  or procedures to evaluate either of those standards. At a Healthcare Fraud Prevention and Funds Recovery Summit in Washington, DC, in 2004, Greg Wood, a federal investigator for the U.S. attorney’s office in Virginia, said  the government’s aim is to produce probable cause that a doctor (a) intentionally wrote a narcotics prescription for patients without legitimate medical needs, (b) knew the  patients getting the prescriptions were addicts, or (c) knew the patients getting the prescriptions were selling the drugs. Any of those is sufficient for an arrest. 

But even those guidelines are apparently subject to change without notice. The DEA continues to lower its evidentiary standards, making it nearly impossible for many doctors to determine what is and isn’t permitted. In October 2004, the DEA disavowed the contents of a pamphlet it had published for pain doctors and pulled the digital version of the document down from its website. The FAQ was a working collaboration with input from leading physicians and researchers in pain medicine that purported to give guidance to pain specialists worried about the DEA’s crackdown.

The reversal infuriated advocates for pain physicians and patients, some of whom had worked with the DEA for several years to “strike a balance” between adequately treating  pain and preventing diversion. The original  document included such conciliatory language  as, “any physician can be duped” and  pointed out that patient behavior commonly  thought to indicate criminal behavior could  instead be “the possible effects of unrelieved  pain.” It warned that “stereotypes of what an abuser ‘looks like’ can harm legitimate patients  because people who abuse prescription medicine  exhibit some of the same behaviors as  patients who have unrelieved pain.” 

The pamphlet also made clear that DEA red flags, such as prescribing prescription narcotics to patients with a history of drug abuse or not reporting patients whom physicians suspect of abusing pain medication, are not in violation of  federal law. 

Most notably, the pamphlet explicitly  stated, “For a physician to be convicted of  illegal sale, the authorities must show that that the physician knowingly and intentionally prescribed or dispensed controlled substances outside the scope of legitimate practice.” 

The DEA took the extraordinary step of disavowing the document, just as lawyers for Dr. William Hurwitz, the pain specialist on trial for diversion in Virginia, attempted to  introduce the pamphlet as evidence at his trial.  Hurwitz’s prosecutors objected, and a federal judge decided in favor of the prosecutors, ruling that the DEA guide did not carry the force of law, and therefore was not admissible. 

The DEA later explained that it disavowed  the pamphlet because of language at odds with the DEA’s insistence that they are not  bound by any standard of evidentiary requirement  to commence an investigation, including the well-established principle in federal law that the enforcement of the Controlled Substances Act should in no way interfere the  ethical practice of medicine. 

The DEA’s explanation noted that “the Government can investigate merely on suspicion that the law is being  violated, or even just because it wants assurances  that it is not.’’ The statement went on to repudiate whole passages from the original  pamphlet, and said the agency would continue  its red flag system of deciding which pain doctors to investigate. Those red flags in the  interim policy statement include the number  of tablets a doctor prescribes to his patients, the practice of writing more than one prescription  for a patient on the same day,  marked for later dispensing, and using “street  slang” rather than medical terminology when discussing pain medication with patients.

All, incidentally, were dismissed by the DEA’s original pamphlet as reasons in and of themselves  to launch a criminal investigation. 

The DEA’s move caused three professional associations of pain management specialists to take the unusual step of sending a letter to  the DEA calling its decision “an unfortunate  step backward” that encourages a return to “an adversarial relationship between [doctors]  and the DEA.”

The DEA’s disavowal of its pamphlet was also enough to push into action state officials  increasingly alarmed by the agency’s pursuit of physicians. In January of 2005 the National Association of Attorneys General sent a letter to the DEA expressing the organization’s  concern about the DEA’s more strident approach to fighting diversion. Thirty state attorneys general signed the letter, which said, in part, 

Having consulted with your Agency about our respective views, we were  surprised to learn that DEA has apparently shifted its policy regarding the  balancing of legitimate prescription of  pain medication with enforcement to  prevent diversion, without consulting  those of us with similar responsibilities  in the states. . . . 

The Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel issued in 2004 appeared to be consistent with  these principles, so we were surprised  when they were withdrawn. The Interim Policy Statement, “Dispensing of Controlled  Substances for the Treatment of  Pain,” which was published in the  Federal Register on November 16, 2004,  emphasizes enforcement, and seems likely to have a chilling effect on physicians  engaged in the legitimate practice  of medicine. 

As Attorneys General have worked to remove barriers to quality care for citizens of our states at the end of life, we have learned that adequate pain management is often difficult to obtain because many physicians fear investigations  and enforcement actions if they  prescribe adequate levels of opioids or  have many patients with prescriptions  for pain medications. 

The end result of these procedures is that investigators and prosecutors without medical training are now in the position of interpreting  whether or not a suspected physician’s  actions are consistent with traditional medical  practice or worthy of an investigation. The red flag system is meant to aid them in that decision. 

At the July 2003 NADDI conference, investigators were told what practices—or red  flags—might indicate criminal behavior. These  included 

• Long lines of patients waiting to see doctors. 

• Patients who are poorly dressed. 

• Out-of-state automobile licenses in doctors’ parking lots. 

• Patients who arrive and are taken without appointments. 

• Patient visits lasting less than 25 minutes. 

• Doctors who are licensed to practice in  more than one state. 

• Doctors who dispense large amounts of  narcotics from one office. 

One of the many problems with the red flag system is that investigative bodies use invasive procedures to uncover red flags. The National Association of Drug Diversion Investigators, for example, instructs cops to conduct video surveillance of doctors’ offices as if they were “crack houses.” Investigators have also picked through trash at doctors’ offices and private residences. Employees of suspected doctors have been interviewed at their homes. Police have sought out disgruntled former employees who might incriminate their former employers.

The relationship between a doctor and his  patient is crucial to the proper assessment and treatment of the patient’s condition.The  DEA’s aggressive investigative procedures poison that relationship from both sides. Pain patients have been asked to testify against  their doctors. Pain patient advocacy groups report patients being accosted in the parking lots of their physicians’ offices. These kinds of  procedures threaten to make some doctors suspicious of every patient they see—even  longtime patients—a situation further complicated  by the DEA’s disavowing its guidelines pamphlet. Doctors and patients are then forced to play a game. 

Patients must negotiate between indicating enough pain to their doctors to warrant more medication, but to avoid appearing desperate—one sign doctors are supposed to look for in identifying diverting patients. Some patients simply stop reporting pain and suffer silently, for fear of becoming burdensome. One study published in the Journal of Clinical Oncology found that when asked to match their patients’ pain intensity on a scale of 1 to 10, 35 percent of physicians failed to match their patients’ descriptions  within two points.

It’s now not at all clear to doctors at what point they’re legally obligated to report a patient they suspect of diverting  prescribed medication. One pain patient and mother of three told her local newspaper, “Doctors and nurses look at you different if they know the medications you are on. They flag your file and view you as an addict.” Pain specialists at a professional conference in Tucson, Arizona, advised doctors to install security cameras, mandate urine tests, and frisk patients upon entering their offices to ensure they weren’t bringing in someone else’s urine—all to ensure that the patients weren’t lying to them and protect the doctors from prosecution down the line.

“I  have to be a detective,” a Tennessee doctor told  the Wall Street Journal. One of Dr. Hurwitz’s patients told the Washington Post that  Hurwitz’s treatment saved his life and was worried what he’d do when Hurwitz lost his license. He found another doctor, but only after considerable searching. Even then, “they  treat me like a criminal,” he said. “I only get a one-week supply at a time, and sometimes I  have to wait for hours at the pharmacy. And  the pharmacist who fills my prescriptions is  the only one in town who will do it, so if he  goes, then I’m finished.”

The DEA has also set up a hotline to report doctors whom patients suspect of overprescribing,  an odd move that further complicates the  doctor-patient relationship. Common sense suggests that people posing as pain patients to illegally divert narcotics or pain patients getting excessive pain medication prescribed to them are least likely to report their doctors to the  DEA. Conversely, it isn’t difficult to see how a  legitimate pain patient dissatisfied with how much medication he has been prescribed might be tempted to report his doctor out of spite. 

Investigators have also sent undercover agents, typically from sheriffs’ departments, to pose as pain patients with fake insurance cards.  Agents schedule appointments over the phone  and carefully document everything that happens  during office visits. They make audio and, when possible, video recordings of everything that transpires. Undercover agents tend to be  female—investigators believe women are less threatening, less suspicious, and more likely to elicit sympathy from doctors. Agents make numerous visits to doctors’ offices to befriend  staff members and win their trust. They then attempt to accumulate incriminating evidence  against the doctors. They are instructed to engage in informal, personal conversation with  a “target” and his employees. Once an undercover agent wins the trust of a doctor and his  staff, she is instructed to begin looking for more red flags. 

These additional red flags have included 

• A doctor who told a pain patient where he could get his prescriptions filled. 

• A physician who asked his patients which drugs they prefer and which  dosage worked best for them. 

• Doctors who prescribed the same drug  in the same dosage to many patients, including to more than one member of  the same family. 

These aggressive procedures haven’t always been the norm. University of Florida professor of pharmacy and lawyer David Brushwood  told one newspaper that doctors once had a  more cordial, cooperative relationship with investigators. 

“Five years ago, if law enforcement saw a problem beginning to develop—say a doctor or  pharmacist dispensing in ways they thought  were problematic—they would very early on go to the doctor or pharmacist and say, ‘We think there’s a problem here.’ By the same token, physicians or pharmacists felt comfortable calling law enforcement and saying, ‘Something strange is going on. Come help us out.’ It was a culture of the early consult. The early consult is gone,” Brushwood said. 

Brushwood also noted that many times, investigators will wait for more problematic situations to develop in an effort to have more  evidence with which to go after a doctor. Law enforcement officials “watch as a small problem becomes a much larger problem. They  wait, and when there is a large problem that could have been caught before it got large, they bring the SWAT team in with bulletproof  vests and M16s, and they mercilessly enforce the law. 

They’ll come in with charges on multiple counts. Murder, manslaughter, 350 counts of drug diversion. Many of which arose  after they first discovered it, when it was a small problem,” Brushwood said.

Because doctors are now being prosecuted for not adequately discerning the motives and intentions of their patients, pain patients know that doctors will be looking them over for signs of abuse, so many strategically underreport or overreport their pain, depending on how much medication they have, how much they think they need, and how suspicious they believe a doctor to be of their motives. Doctors have no choice but to  give extra scrutiny to everything a patient  says, not just out of a desire to keep a patient  from hurting himself or diverting drugs to  the black market, but because the patient  may be an undercover cop. Even longtime  patients can be duped by police into turning in their doctors under threat of arrest. 

A doctor’s billing practices can also trigger a red flag. Investigators have contacted private  insurance companies’ fraud units as well as those within Medicare and Medicaid. They comb records to find more potential red flags for a suspected doctor. Investigators have also obtained the prescription purchase reports gathered by the DEA from pharmaceutical companies to track a suspected  physician’s prescribing history.

The case of Dr. William Hurwitz is again an excellent example. He was prosecuted in 2004  as part of a two-year DEA operation called  “Cotton Candy” (for OxyContin) involving between 60 and 80 doctors, pharmacists, and patients. Hurwitz was eventually charged with  “conspiring to traffic drugs, drug trafficking resulting in death and serious injury, engaging in a criminal enterprise, and health care  fraud.” He was arrested at his home by 20 armed agents in the presence of his two young daughters. Investigators seized his assets,  including his retirement account, jailed him, and imposed a $2 million bond.

Hurwitz was eventually convicted, essentially of being unknowingly duped by pain patients who later sold his prescriptions. The jury’s foreman told the Washington Post that Hurwitz was “sloppy,”  “a bit cavalier,” and that, “no, he wasn’t running a criminal enterprise.” Yet the jury convicted Hurwitz of “conspiracy to distribute controlled substances and trafficking resulting in death and serious injury.” In April 2005  Hurwitz was sentenced to 25 years in prison and fined $1 million.

The DEA now insists that prosecutors do not have to prove a doctor’s malicious intent or desire to profit from narcotics diversion to  secure a conviction. In fact, it’s not even necessary for the government to have expert medical testimony that a doctor’s actions  were illegitimate or outside the usual course of professional practice.  The DEA believes it can bring charges against doctors even if they  never actually distributed drugs or their prescriptions  were never actually filled. In fact, there seems to be no evidentiary standard at  all that doctors can rely on to thwart a conviction.

Perhaps no case illustrates the injustice of aggressive law enforcement tactics better than that of Dr. Frank Fisher. Fisher was a  Harvard-trained physician whose California practice served about 3,000 patients, most of them rural and poor. About 5–10 percent of  Fisher’s cases were pain patients. In 1999, the  police arrested Fisher and charged him with  multiple counts of fraud and drug diversion.  More notably, Fisher was originally charged with several counts of murder. 

State prosecutors attempted to make the case that Fisher’s overprescribing of narcotics made him criminally culpable for the deaths of a pain patient who died in an unrelated automobile accident, a man who received narcotics after they had been stolen from the home of one of his patients, and a patient who died after her prescription ran out and Dr. Fisher had already been arrested and imprisoned. Fisher was further besmirched in the press. 

Prosecutors described him as a “mass murderer”  and common drug pusher who addicted thousands of Californians to prescription  painkillers. 

Upon his arrest, all of Dr. Fisher’s assets were seized, and he was held on $15 million bond. It took just a 21-day preliminary hearing  for a judge to dismiss the murder charges  and lower the bail, releasing Dr. Fisher from prison. It took another four years to dismiss the remaining felony charges, including fraud and manslaughter. Finally, in May of 2004, a jury acquitted Fisher of the remaining misdemeanor charges. One juror described the pursuit of him as a “witch hunt.” Fisher spent five months in jail, lost all of his assets and—at the  age of 50—was forced to move in with his elderly parents. 

Conclusion 

The government is waging an aggressive, intemperate, unjustified war on pain doctors. This war bears a remarkable resemblance to  the campaign against doctors under the Harrison Act of 1914, which made it a criminal  felony for physicians to prescribe narcotics  to addicts. 

In the early 20th century, the prosecutions of doctors were highly publicized by the media and turned public opinion  against physicians, painting them not as healers of the sick, but as suppliers of narcotics  to degenerate addicts and threats to  the health and security of the nation. Since 2001 the federal government has similarly accelerated its pursuit of physicians it says are contributing to the alleged rising tide of prescription drug addiction. 

By demonizing physicians as drug dealers and exaggerating the health risks of pain management, the federal government has made physicians scapegoats for the failed drug war. In that they are generally legitimate, well-meaning professionals who keep accurate records, pain physicians also present a better target than underground, blackmarket drug dealers for a DEA that has been subject to increasing criticism from Congress and the Department of Justice for its inability  to measurably reduce the domestic drug supply. 

Even worse, the DEA’s renewed war on pain doctors has frightened many physicians out of pain management altogether, exacerbating an  already serious health crisis—the widespread  undertreatment of intractable pain. Despite the  DEA’s insistence that it’s not pursuing “good”  doctors, it isn’t hard to see how rhetoric from  law enforcement officials and prosecutors  would make doctors think otherwise.  Hurwitz’s prosecutor, for example, promised to root out bad doctors “like the Taliban.”

Another assistant U.S. attorney said, upon the sentencing of one doctor to eight years in prison for having worked for 57 days at a pain clinic: “I believe and I hope that this case has sent a clear message to the medical community that they need to be sure the controlled substances  they prescribe are medically necessary. If doctors have a doubt about whether they could get in trouble, this case should answer that”—a  statement that implores doctors to err on the side of undertreatment.

It isn’t hard to see how all of this would make it more difficult for pain patients to find treatment. “You worry every day that the medicine won’t be available for much longer,” one  patient told the Village Voice, “or your doctor won’t be there tomorrow because he’s been arrested by the DEA.” One doctor flatly told the Wall Street Journal, “I will not treat pain patients ever again.”

Still another told Time magazine, “I tend to underprescribe instead of using stronger drugs that could really help my patients. I can’t afford to lose my ability to support my family.” The Voice also reports that  many medical schools now “advise students not to choose pain management as a career because the field is too fraught with potential legal dangers.”

The most obvious (though least likely)  course of action to address these problems  would be for Congress to end the costly, regrettable War on Drugs. Barring that, the best way for law enforcement officials to battle the problem of diversion would be to  combat the theft of the drugs from warehouses, manufacturing facilities, and en route to pharmacies. More importantly, the  DEA, DOJ, Congress, and state and local  authorities should end the senseless persecution of doctors and allow them to pursue  whatever treatment options they feel are in  the best interests of their patients, free from the watchful eye of law enforcement. 

Ronald T. Libby is a professor of political science and public administration at the University of North Florida. 
The author would like to thank the Cato  Institute’s Radley Balko for his assistance in editing  and researching this paper.

 

 

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