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Few disagree that pain is already poorly treated in the U.S. "Even
the DEA admits that 30 to 50 million people are under-treated for
pain," says Ronald Libby, a professor of political science at the
University of North Florida who has studied the issue. A 1999 survey of
805 chronic pain patients conducted by Roper Starch for the American
Pain Society found that roughly half of those with serious chronic pain
could not find relief -- and that the more severe the pain, the less
likely it was to be alleviated. Other surveys have yielded similar
results. Only a tiny fraction of the nation’s nearly 1 million health
care professionals licensed to prescribe controlled substances are
willing to consistently use opioid medications, recognized as the best
drugs for severe pain. A 2003 analysis by the Ft. Lauderdale
Sun-Sentinel found that less than 3 percent of Florida’s doctors
prescribed the majority of opioids for Medicaid patients there.
During the 1990s, pain experts, patient advocates, and drug makers
sought to reduce exaggerated fears about opioids and increase
prescribing. Research and clinical experience had shown that few
patients without a prior history of serious drug abuse get hooked on
narcotics during pain treatment, resulting in addiction rates no higher
than those seen in the general population. In one important study,
reported in the journal Pain in 1982, the researchers surveyed 181
staffers of 93 burn units who had seen more than 10,000 patients and
worked in the field an average of six years. Most patients had been
given opioids to cope with agonizing debridement treatments, but the
staff could recall no cases of addiction in anyone without a prior
history of it. A study of 100 people taking opioids for chronic pain
over prolonged periods, reported in the Journal of Pain and Symptom
Management in 1992, likewise found that none became addicted. No new
evidence has contradicted this research, and a study of prescribing from
1990 to 1996, published in 2000 in The Journal of the American Medical
Association, found that massive increases in the use of particular
opioids were not associated with proportional increases in misuse; in
fact, as use of some medications rose, emergency room
"mentions" of them dropped.
But in the minds of police and prosecutors, such reassuring findings
were overwhelmed by concerns about what was dubbed the OxyContin
"epidemic." Introduced by Purdue in 1995, OxyContin was
designed to deliver steady pain relief over an extended period of time,
avoiding the peaks and valleys of shorter-acting pills that have to be
taken several times a day. It soon became a $1 billion blockbuster. When
illegal drug users figured out how to defeat its timed-release mechanism
and get all the oxycodone at once, street demand -- and media coverage
-- soared.
Most news stories neglected to mention that OxyContin abusers generally
were not new addicts freshly minted from innocent patients by
irresponsible doctors. Rather, they were drug aficionados who scammed
physicians for the latest media-hyped high. According to data from the
federal government’s National Survey on Drug Use and Health, some 90
percent of illicit OxyContin users have also used cocaine, psychedelics,
and other painkillers. The typical profile is a person who has abused
many drugs in many combinations for many years. OxyContin poses no
greater addiction risk than other opioids when taken as directed. But
the media helped teach addicts and thrill seekers how to do otherwise.
In 2002 the Charleston Daily Mail quoted former Surgeon General C.
Everett Koop as saying "exaggerated news stories" have
"hyped [OxyContin] for recreational use into being almost
irresistible." In some cases, OxyContin-related pharmacy robberies
followed local exposés. On February 16, 2001, less than a week after
the Cleveland Plain Dealer reported on the OxyContin
"epidemic," someone robbed a local pharmacy at gunpoint,
taking only OxyContin. The Cleveland Free Times quoted a drug dealer who
said a customer had shown him a newspaper clipping about OxyContin,
asking where he could get it.
While the OxyContin panic does not seem to have deterred addicts, it has
scared doctors. "Every time there is one of these trials,"
says Libby, "another 50 to 60 doctors drop off from
prescribing." Among the doctors recently targeted by federal or
state prosecutors are Frank Fisher of Anderson, California, charged with
three counts of murder and 24 drug- and fraud-related charges; Jeri
Hassman of Tucson, Arizona, charged with 362 counts of "drug
dealing with a pen"; James Graves of Pace, Florida, convicted in
2002 of causing the deaths of four patients and sentenced to 63 years in
prison; Denis Deonarine of West Palm Beach, Florida, charged with 79
felony counts, including first-degree murder, based on a patient’s
death from a self-administered overdose; and Deborah Bordeaux of Myrtle
Beach, South Carolina, who in February was sentenced to eight years in
prison for working less than two months at a pain clinic targeted by the
feds as a "pill mill."
The sheer number of charges in these cases makes defending the doctors
difficult because it’s natural for jurors to think that with so many
counts, some crime must have occurred. But this impression is
misleading. The essence of the prosecutors’ cases is that ordinary
events in a doctor’s office become criminal when the doctor steps
outside the bounds of legitimate medicine. It’s easy to generate
lengthy indictments by portraying the doctor’s entire practice as a
criminal enterprise and redefining everyday activities related to the
practice as offenses.
Each prescription of a controlled substance can be made into several
crimes. In addition to drug distribution, it can be described as health
care fraud because charging or billing third parties for practices that
aren’t really medicine is illegal. If the prescription or a bill has
been sent through the mail, it can also be mail fraud. Every deposit of
the physician’s paycheck becomes money laundering. Seeing a patient
who turns out to be a drug dealer or addict can lead to a conspiracy
count, as can working with one’s colleagues. Most shocking of all, any
death that can in any way be connected to use of the doctor’s
prescriptions becomes a charge of drug dispensing resulting in death or
serious injury -- even if the person who died stole the drug from a
legitimate patient, lied to get the drug, used it with other drugs or
alcohol, or expired while suffering from a potentially fatal illness.
Physicians face these daunting indictments with their assets frozen,
their bail set as if they were drug kingpins, and their livelihoods
ruined by license suspensions or bail conditions. In these
circumstances, mounting a defense is extremely difficult. "It makes
it impossible to retain private counsel," says Virginia attorney
James Hundley, who represented William Hurwitz prior to his indictment.
(He is now using a public defender.) California attorney Patrick
Hallinan, who has represented Frank Fisher and has advised Hurwitz,
says, "They’re throwing the entire penal code at them."
The tremendous pressure that such charges bring to bear is illustrated
by the 2002 federal indictment of eight doctors who worked at the
Comprehensive Care and Pain Management Center in Myrtle Beach, South
Carolina. Threatened with hundreds of years in prison and fearful that
his wife (an employee) could also be indicted, clinic owner Michael
Woodward pleaded guilty and testified that he had schemed with the other
doctors, including Deborah Bordeaux, to sell drugs. South Carolina is a
conservative state, and Woodward had seen his clinic repeatedly attacked
in the news media. The Woodwards may also have feared that their young
children could lose both parents to long prison terms.
Another clinic doctor, Benjamin Moore, told Siobhan Reynolds, founder of
the Pain Relief Network, that he and his colleagues had done nothing
wrong. When he, too, found that he faced life in prison, he pleaded
guilty in desperation. But according to his brother, he could not go
through with testifying against co-workers he believed to be innocent.
Instead he hanged himself from a tree in his mother’s backyard.
Doctors As Dealers
In fiscal year 2003, according to the DEA, the federal
government investigated 557 physicians and arrested 34. Betsy Willis,
chief of the Operations Section of the DEA’s Office of Diversion
Control, says "the numbers of federal prosecutions have been
relatively consistent for the last four years." The DEA reports 81
arrests in fiscal year 1999, 83 in fiscal year 2000, 78 in fiscal year
2001, and 68 in fiscal year 2002.
Even if the number of federal prosecutions has declined, they have
received much more attention since the news media began highlighting
OxyContin abuse in 2001. And the alarm about OxyContin clearly has led
to increased enforcement efforts: Last year the DEA doubled controlled
substance licensing fees for health care providers to fund more
investigations, and in March the Office of National Drug Control Policy
unveiled "a coordinated drug strategy to confront the illegal
diversion and abuse of prescription drugs."
The strategy includes closer monitoring of prescriptions, coupled with
"outreach" and "education" aimed at making doctors
more skeptical of patient requests for painkillers.
Until recently, investigators would approach a physician if they
suspected a patient of diversion; now they try to build a case against
the doctor. "This is new in my experience, and I have been doing
this for 25 years," says David Brushwood, a professor of pharmacy
at the University of Florida. "I’ve always seen drug control and
health care work together....They were never really at odds until the
last two years....The way it used to be was that when drug control
officials saw the beginnings of a pattern of diversion, they would say
to the doctor, ‘It looks like a problem is developing; let’s work
together to fix it.’ Now when they see a small problem, they conduct
surveillance and wait for it to become big, then swoop in with a
massive show of force."
Even when there is no direct evidence of diversion, investigators and
prosecutors may decide a doctor is being too generous with painkillers
because they are influenced by an outmoded view of addiction. According
to this view, the essence of addiction is "physical
dependence," changes in the body that result in withdrawal symptoms
when drug use is halted. Based on this criterion, all pain patients
become addicts when they take opioids long enough.
In recent decades, researchers have recognized the inadequacy of this
definition. On the one hand, some drugs that don’t cause physical
withdrawal symptoms (for example, cocaine) clearly can produce a
potentially self-destructive desire for more. On the other hand, the
vast majority of those who try even the most addictive substances
don’t develop lasting habits. Researchers therefore redefined
addiction to emphasize craving and negative consequences rather than
withdrawal symptoms. The diagnostic manual of the American Psychiatric
Association now recognizes that physical dependence is neither necessary
nor sufficient for addiction, which is characterized by continued use of
a substance despite ongoing drug-related problems. For pain patients, of
course, the drug produces fewer problems and greater functioning, rather
than the reverse.
Some patient advocates say drug warriors can’t accept this reality
because it undermines the logic of prohibition: If most people don’t
get hooked when exposed to the "hardest" of all categories of
drugs, if patients’ lives get dramatically better and they function
perfectly well on doses that are supposed to incapacitate, stupefy, and
derange, why is it so important for the government to protect us from
these substances? From this point of view, the DEA must fight pain
control because functional patients on high doses of opioids threaten
its authority.
"It completely puts the lie to the whole criminal approach because
it shows that these molecules are not evil, that people can and do
function well on them," says the Pain Relief Network’s Siobhan
Reynolds. "It undermines the whole basis for the war on drugs and
makes it a strictly scientific/medical issue."
Whatever their reasons, law enforcement officials (along with most of
the public and many physicians) still cling to the old-fashioned view of
addiction as a biochemical process that inevitably results from extended
use of certain drugs. In the Myrtle Beach case, federal prosecutors said
in court (before being forced to retract their claim due to contrary
testimony) that none of the clinic’s 3,000 patients was
"legitimate"; in other words, in their view every pain patient
of all eight doctors was an addict.
The DEA defines addicts as "habitual" users of narcotics who
have "lost the power of self control with reference to [their]
addiction" or whose use "endangers the public morals, health,
safety, or welfare." From this perspective, pain patients could be
considered addicts who have "lost control" in the sense of
needing the drug to function.
Many prosecutors do not understand the distinction between addiction and
physical dependence or recognize the growing acceptance of opioids in
medicine. Says John Burke, vice president of the National Association of
Drug Diversion Investigators, "Do I think some prosecutors and law
enforcement officers are not well educated? Absolutely." A 2003
study published in the Journal of Law, Medicine, and Ethics found that
nearly three-quarters of prosecutors in four states believed simply
taking opiates poses a moderate or high risk of addiction. Holding that
view was one of the best predictors of who would choose to prosecute
physicians in a hypothetical case designed to reflect good pain
practice. Just under half of prosecutors surveyed said they would
recommend a police investigation merely on the basis of evidence that a
physician was prescribing high doses of opioids to some patients for
more than a month, something that is perfectly legitimate in cases
involving severe chronic pain.
Prescriptions for Trouble
Frank Fisher seems to have been targeted based on just
this sort of suspicion. At his Northern California clinic, the Harvard
Medical School graduate accepted patients on Medicaid and Medi-Cal
(California’s health insurance for the poor) that most other
physicians refused, and he tried to treat their pain as aggressively as
he would treat anyone else’s. In February 1999 state law enforcement
agents raided Fisher’s clinic and arrested him for drug dealing,
fraud, and murder. His bail was set at $15 million. State prosecutors
accused him of "creating a public health epidemic" of
OxyContin abuse and death. They implied that he must be a drug dealer
because he was the largest prescriber of the drug under Medi-Cal.
But in a context where fear of prosecution leads most doctors to
under-prescribe, anyone who prescribes what is necessary for severe pain
will be a top prescriber. Even Burke admits that prosecuting doctors has
a chilling effect on their colleagues’ treatment decisions. "I
know from lecturing thousands of physicians that there is no question
but that it does," he says. "The thing we don’t want to
happen is that physicians don’t prescribe appropriately because of
these cases, but I know that it happens. I have to be honest."
Burke also recognizes that there is no ceiling on opioid doses: When
patients develop tolerance, they may need massive doses that would kill
someone who had never taken the drug. "Physicians should not be
targeted simply on volume," he says. "That can be a huge
mistake."
The DEA insists physicians aren’t targeted based on volume alone. But
Fisher believes he was. While patients with moderate pain can be treated
effectively with low doses of opioids, he explains, severe pain requires
that the dose be adjusted ("titrated") to a level that
maximizes pain relief and minimizes side effects. "To get a
sense," he says, "I titrated about two dozen patients, and
they ended up taking almost half of the OxyContin 80-milligram pills
prescribed in California in 1998. What that tells you is that nobody
else titrated."
Fisher was jailed for five months, during which time the prosecution’s
case began to evaporate. First, the murder charges were reduced to
manslaughter by the judge, who saw no proof of intent. Then the truth
about these "killings" came out. One death involved a
passenger who died when her spine was severed in a van accident. Fisher
was charged with her "murder" because she had high levels of
OxyContin in her blood. Another "victim" had taken drugs
stolen from a patient, while a third died of a self-administered
overdose two weeks after Fisher was incarcerated.
During cross-examination in pretrial hearings, it was revealed that
seven attempts by undercover agents to get drugs from Fisher had been
rebuffed. "I had a screening process for those who tried to get
controlled substances," he says. "I screened out 60 percent of
those, and apparently the agents were amongst them."
In January 2003, four years after Fisher’s arrest, a state judge
dismissed all the charges against him because prosecutors had tried
repeatedly to delay the trial. But this year prosecutors decided to
pursue another set of charges against him. Instead of homicide, drug
dealing, and felony fraud involving $2 million in Medi-Cal
reimbursements, they charged him with eight misdemeanor counts of fraud.
Prosecutors would not put a dollar value on the offenses, but Fisher
said they added up to $150. The jury agreed with Fisher’s expert, who
said the billings in question didn’t warrant civil penalties, let
alone criminal charges, and he was acquitted of all counts in May. He
still faces possible disciplinary action by the state medical board as
well as civil suits by patients’ relatives. Fisher forwarded an e-mail
message from a juror who said: "Now that I am home and can read
about you on the Internet, my heart really goes out to you...I was upset
that the prosecutor wasted my time and the court’s time on such a weak
case. But now that I know what you have really been through I feel
embarrassed and selfish to be thinking about my own time. I hope you can
reopen your clinic some day and get back to practicing medicine...Thanks
for doing the job most doctors won’t."
Unlike Fisher, other doctors fighting prosecutions based on their opioid
prescriptions so far have enjoyed only partial victories. Last fall
Cecil Knox’s federal trial in Virginia got off to an inauspicious
start for prosecutors when their first witness, who claimed Knox had
traded prescriptions for marijuana, couldn’t identify him in the
courtroom or from photographs. The jurors ultimately acquitted Knox of
about 30 out of 69 charges. But due to a single holdout who voted
guilty, they hung on the remaining charges, including the most serious.
In January prosecutors refiled the case, this time with 95 charges.
Also in January 2004, federal prosecutors agreed to drop 358 of their
362 charges against Tucson pain specialist Jeri Hassman, who pleaded
guilty only to four counts of failing to report patients for infractions
such as taking a recently deceased relative’s OxyContin. On the same
day, a Florida judge rejected a first-degree murder charge against West
Palm Beach physician Denis Deonarine, based on the death of a patient
who succumbed to "polydrug toxicity" after a night of drinking
and drug use. But in March state prosecutors filed a new murder charge
under a different statute, and Deonarine also faces 79 other charges
stemming from his prescription of OxyContin and other opioids.
Second Opinions
Eli Stutsman, an appeals attorney who is representing
Myrtle Beach physician Deborah Bordeaux at the behest of the Pain Relief
Network, thinks he may have found a way to stop such prosecutions, at
least at the federal level. Stutsman also represents the state of Oregon
in its thus-far successful battle with Attorney General Ashcroft over
physician-assisted suicide, a dispute that hinges on what the federal
drug laws mean and how they should be enforced. A federal appeals
court’s decision in that case suggests the DEA is overstepping its
statutory authority when it tells doctors how controlled substances
should be prescribed.
In 2001 Ashcroft tried to nullify Oregon’s assisted suicide law with a
directive that declared the prescription of drugs for suicide a
violation of the Controlled Substances Act (CSA).
Under the CSA, a prescription is "authorized" if it is
"issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of professional practice."
If a doctor writes prescriptions to order for money, trades drugs for
sex, or prescribes drugs for resale, he is operating outside "the
usual course of professional practice." In such cases, the CSA
authorizes the DEA to revoke the registration that allows physicians to
prescribe controlled substances and to pursue criminal charges.
But Stutsman concluded that in recent cases the DEA has taken the
statute’s language out of context, improperly reading "for a
legitimate medical purpose" as a requirement separate from
prescribing in "the usual course of professional practice."
Instead of claiming that the accused doctors weren’t sincerely trying
to treat patients, federal prosecutors have argued that the defendants
wrote prescriptions that weren’t "medically necessary" or
that had no "legitimate medical purpose." Thus the DEA claims
the authority to determine what doses of which drugs a doctor may use
and what medical purposes are legitimate. Those are questions about the
standard of medical care -- the sort of questions addressed in
malpractice litigation and civil actions by state medical boards.
The DEA insists it is correctly interpreting the law. "We’re only
looking at instances where we have information [that] practices outside
of the norm are taking place," says Pat Good, acting deputy
director of the DEA’s Division of Diversion Control. "We’re not
talking about avant-garde medicine where patients are doing really well.
We’re talking about cases where patients are selling drugs on the
street, using fictitious names on prescriptions, overdosing, and getting
arrested."
But in Oregon v. Ashcroft, the assisted suicide case, U.S. District
Judge Robert Jones found Stutsman’s reasoning compelling. Ashcroft had
argued that the CSA gave federal prosecutors the right to decide that
assisting suicide is not part of legitimate medical practice. Jones
disagreed: "The CSA was never intended, and the USDOJ and the DEA
were never authorized, to establish a national medical practice
[standard] or act as a national medical board. To allow an attorney
general -- an appointed executive whose tenure depends entirely on
whatever administration occupies the White House -- to determine the
legitimacy of a particular medical practice without a specific
congressional grant of such authority would be unprecedented and
extraordinary." Last May the U.S. Court of Appeals for the 9th
Circuit affirmed Jones’ decision, finding that "the attorney
general’s unilateral attemp to regulate general medical practices
historically entrusted to state lawmakers...far exceeds the scope of his
authority under federal law."
Stutsman intends to use similar reasoning in his appeal of Deborah
Bordeaux’s conviction. Her prescribing never exceeded manufacturers’
recommendations or those of her state medical board; there was no
exchange of drugs for sex or other evidence that she was not practicing
real medicine. "What makes this particularly outrageous," says
Stutsman, "is their confusion of civil and criminal standards to
start with. It’s an excessive exercise of federal power based on a
misapplication of federal law."
Suicide Is Painless
Kathryn Serkes, spokesperson for the Association of
American Physicians and Surgeons (AAPS), sees these cases as part of a
long-term trend toward increased prosecutorial power that includes
sentencing guidelines, mandatory minimums, and forfeiture laws. The
Coalition Against Prosecutorial Abuses, a group she is organizing to
fight this trend, declares: "There’s still one group of trial
lawyers that has been left alone to go about their dirty work with few
restrictions -- and all at taxpayers’ expense. These are the
government prosecutors."
The AAPS, along with the Pain Relief Network, has been vocal in
denouncing the federal and state doctor prosecutions. The group’s Web
site warns: "If you’re thinking about getting into pain
management using opioids as appropriate: DON’T. Forget what you
learned in medical school -- drug agents now set medical
standards." The AAPS urges doctors inclined to ignore this advice
to be aware of the risks, including "years of harassment and legal
fees," loss of income and assets, and professional ostracism.
Despite increasing outrage from physicians and patient advocates, the
DEA maintains that people in pain have nothing to fear from the
crackdown. "A legitimate patient with legitimate medical problems
should have no problem getting another doctor if their doctor has been
arrested," says the DEA’s Willis.
Anti-pain activists vigorously dispute that. "This is causing
doctors not to prescribe," says the Pain Relief Network’s Siobhan
Reynolds, "and that means patients will be in hell." Several
of the prosecutions have been associated with suicides by devastated
patients who couldn’t get effective treatment elsewhere. Common Sense
for Drug Policy reports that one of William Hurwitz’s patients killed
herself on March 16. Frank Fisher says one of his patients drove her car
in front of a train.
In a forthcoming documentary by Reynolds, pain patient Skip Baker says,
"It’s a devastating health care crisis, to the point that
thousands are committing suicide that nobody knows about. Most pain
patients know -- everybody’s planning to run into this bridge abutment
or that tree or whatever to make it look like an accident." Ronald
Myers, a Mississippi physician and minister who founded the American
Pain Institute, observes:
"They want to talk about deaths associated with OxyContin. But no
one wants to talk about these deaths. There’s been an epidemic of
suicide."
Laura Cooper, an attorney with multiple sclerosis and a former patient
of Hurwitz, moved to Oregon when his practice was shutting down. Her new
doctor "is also under the microscope," she says. "All of
these guys are on their way out -- if not on their own, the government
is on the way to putting them out. Anybody who would treat me the way I
need to be treated is not long for American medicine. When my doctor
goes down, I don’t know what I’ll do."
Since Cooper lives in Oregon, she notes, "by law I can get drugs to
kill myself, but not to treat my pain. The doctor could say, in effect,
‘I’m not trying to treat pain; I’m trying to kill her,’ and that
would be more acceptable. Clearly, something’s a little off kilter. My
medical needs are less important than their war on drugs."
by Maia Szalavitz, a senior fellow at the media
watchdog group STATS
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