On February 1, 2002, Cecil Knox was seeing patients in his Roanoke, Virginia, clinic when more than a dozen federal agents burst through the doors with guns drawn. Helmeted, shielded, and wearing bullet-proof vests, they terrified waiting patients and employees. One worker later told the Pain Relief Network, a patient advocacy group, she thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, "Get off the phone! Now!"
Knox, a pain management specialist who had been practicing medicine in Roanoke for seven years, was dragged out in handcuffs and leg irons. The local U.S. attorney's wife, a TV reporter, was among the journalists tipped about the raid in advance. She stood outside with a gaggle of other media people to announce her husband's triumph. Knox's assets were frozen and bond set at $200,000. He and several employees soon faced a 313-count indictment, including charges of drug distribution resulting in death or serious bodily injury, prescription of drugs without a medical purpose, conspiracy, mail fraud, and health care fraud. Prosecutors said Knox had illegally distributed millions of dollars' worth of OxyContin, a timed-release version of the narcotic painkiller oxycodone.
William Hurwitz, a McLean, Virginia, internist and prominent pain specialist, received similarly heavy-handed treatment when he was arrested last fall. Hurwitz, who is Jewish, was visiting his children on Rosh Hashanah eve when federal agents descended upon his ex-wife's house in McLean and took him away in handcuffs. As with Knox, the government froze Hurwitz's assets; his bail was set at $2 million. He was charged with 49 felony counts, including drug trafficking resulting in death or serious injury, conspiracy, and running a criminal enterprise.
Like Knox, Hurwitz attracted attention largely because of his OxyContin prescriptions. Attorney General John Ashcroft said "the indictment and arrests in Virginia demonstrate our commitment to bring to justice all those who traffic in this very dangerous drug." Prosecutors said Hurwitz was "no better than a street corner crack dealer" who "dispenses misery and death." Assistant U.S. Attorney Gene Rossi had earlier declared that the feds would "root out" such doctors "like the Taliban."
Knox and Hurwitz are just two recent targets of an aggressive push by the Drug Enforcement Administration (DEA) and the Department of Justice (DOJ) to impose their judgments about the proper use of opioid painkillers (drugs derived from opium and synthetics that resemble them) on doctors throughout the country. In their attempt to prevent prescription drug abuse, the DEA and the DOJ in effect have taken upon themselves the authority to regulate the practice of medicine, traditionally the province of the states. Worse, they have transformed disagreements about treatment decisions into criminal prosecutions, scaring physicians away from opioids and compounding the suffering of patients who have trouble getting the drugs they need to relieve their pain.
Drug Control vs. Pain Control
Few disagree that pain is already poorly treated in the U.S. "Even the DEA admits that 30 to 50 million people are undertreated 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 and Jannsen Pharmaceutica 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. (See "The Agony and the Ecstasy," April 2003.)
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."