Dr. Feelscared

Drug warriors put the fear of prosecution in physicians who dare to treat pain.

Maia Szalavitz from the August/September 2004 issue

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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."