The Federalization of Medicine

The pain issue shows why medical policy should be left to the states.

After three trials (two mistrials), one appeal, and having served more than three years of a mandatory 25 year sentence, pain patient Richard Paey was given a full pardon by Florida Governor Charlie Crist on Sept. 20. Paey had been convicted of "drug trafficking" due to the high doses of opioids he'd been prescribed for pain resulting from multiple sclerosis and failed back surgery in the aftermath of a car accident.

Even though three months of surveillance produced no evidence he had sold or given away any medication, and even though he'd been prescribed the same dosages for years, the weight of the drugs alone (which, ironically, mostly contained acetaminophen, the active ingredient in Tylenol) was enough to provoke the mandatory minimum sentence.

While Paey was in prison, officials refilled a morphine pump that he had fitted during the course of the proceedings. That pump, paid for by the state of Florida, delivered over the course of each 48 hour period a larger dose of opioid medication than Paey had been convicted of possessing in the first place.

Strangely, Florida's parole board recommended against even commuting Paey's sentence to time served. But Gov. Crist and his cabinet saw Paey's case for the injustice it was, and unanimously voted to grant him a full pardon. One of those cabinet members, Attorney General Bill McCollum, a long-time supporter of mandatory minimum sentences, said during the hearing, "This is not a pleasant case. Our laws are very much to blame."

Paey's is only one of the most egregious cases of injustice resulting from a recent crackdown on "prescription drug abuse." Dozens of doctors have also been charged with trafficking, and the overwhelming majority have been convicted or taken pleas, even when there was no evidence that they profited from drug sales or intended to provide highs to addicts. The initiative has been pushed in the media and through the courts by the DEA and the Justice Department starting with the Oxycontin hysteria of 2001.

Siobhan Reynolds, the founder of the advocacy group Pain Relief Network who brought the Paey case to national attention, spots a pattern in the few victories pain patients and doctors have won. She notes that the doctors who avoided conviction and patients who ultimately received justice had all been charged at the state level, not in federal courts.

"We're thrilled by this victory," she says, "And this shows beyond a shadow of a doubt that if these matters are to be handled by law enforcement at all, they ought to be handled by the states. Here, where things went terribly wrong, they were able to correct the situation. But at the federal level, we've been trying to stop this outrageous crackdown for five years, and haven't gotten anywhere."

The most notorious federal case is that of Dr. William Hurwitz, who was originally sentenced to 25 years in prison for drug trafficking. His first guilty verdict was overturned on appeal because the jury had not been allowed to consider his defense that he was merely practicing medicine.

In his second trial, he was convicted on 16 counts of trafficking, but acquitted on 29 other charges. Several of the jurors later told John Tierney of the New York Times that they did not think he was a drug dealer, but that he had "fallen down on the job" by not cutting off patients who showed signs of addiction. In other words, Hurwitz was at worst a bad doctor, not a criminal drug dealer.

Though the judge recognized that Hurwitz had been practicing medicine and even said in her sentencing statement that, "the mere prescription of huge quantities of opioids doesn't mean anything," she nonetheless did not throw out the "trafficking" verdict. However, she did sentence Hurwitz to just five years, significantly below the federal sentencing guidelines. Prosecutors are now appealing the sentence, claiming that the judge erred in her attempt at mercy.

Other doctors convicted on the federal level include Bernard Rottschaefer, who got six years despite the fact that the prosecution's star witness admitted to having perjured herself; Deborah Bordeaux, MD, who got 8 years for having worked less than two months at a clinic that prosecutors said conspired to sell Oxycontin to addicts; and Ronald McIver, who was sentenced to 30 years. There have been dozens of others, and, thus far, federal appeals courts have offered little relief.

There have been many convictions in state courts, too, but there have been a few significant victories. California doctor Frank Fisher was originally charged with multiple counts of drug dealing, and even murder, in the death of a patient who turned out to have died of gruesome injuries as a passenger in a car accident. The state had claimed the drugs in her system, not the crash, had killed her. Fisher faced decades in prison, but over time the state's case collapsed. They finally tried him on fraud charges, and Fisher was acquitted.

In Pennsylvania in 2006, Paul Heberle was acquitted on 26 prescription-related charges, including trafficking and fraud. He'd been asked by the state to take over the care of patients of another doctor who'd been sent to prison for "drug dealing," and was then prosecuted for having treated some of them.

"I think the states—perhaps because they are closer to the people—are more accountable than the federal government," says John Flannery, who was Paey's attorney for his appeal and clemency process, "It's also a fairer fight in the states because you are not overmatched by the unlimited resources of the federal government."

Ron Libby, author of The Criminalization of Medicine: America's War on Doctors and professor of political science at the University of North Florida, is less sanguine. "The only pattern I see is towards being tougher and having a more law enforcement mentality," he says.

But compared to federal prosecutors, who have taken these cases with relish, and even compared accused doctors to the Taliban, state prosecutors seem to be at least somewhat more concerned about the effects of the anti-drug crusade on pain care.

In 2005, the National Association of Attorneys General sent a concerned letter to the DEA and a response to a call for comments signed by the attorney generals of 29 states, the District of Columbia and two territories. The response said, in part, that the AG's "are concerned that recent DEA actions send mixed messages to the medical community and are likely to discourage appropriate prescribing for the management of pain. Those actions also put the DEA at odds with advances in state policies regarding prescription pain medication."

The DEA's only attempt at helping doctors figure out what the police and federal prosecutors see as "appropriate prescribing" and what they call "drug dealing" had been a 2004 FAQ, which was created over years of collaboration between medical experts and law enforcement. It was withdrawn after Hurwitz planned to use it in his defense. Though a "clarification" was published in the Federal Register, re-enforcing the primacy of law enforcement concerns over medical judgment.

Reynolds and PRN would like to see the federal role eliminated entirely through legislation. "Public opinion affects state officials but it does not affect the DEA," she says. "We're working with the subcommittee on crime to put together legislation that would shore up the medical exemption to the Controlled Substances Act and restore the supremacy of the states."

The U.S. Supreme Court, in its decision of the assisted suicide case, Gonzalez v. Oregon ruled that federal prosecutors do not have the power to choose to criminalize entire areas of medical practice. In the majority opinion, Justice Kennedy wrote, "This power to criminalize…would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside 'the course of professional practice,' and therefore a criminal violation."

The DEA and the Justice Department have nonetheless continued to make federal criminal cases out of what previously would have been at worst incidents of medical malpractice and have in many cases simply been instances of doctors using treatments drug cops don't understand. And they have considerably hampered advances in pain treatment in the process.

Maia Szalavitz is author of Help At Any Cost: How the Troubled-Teen Industry Cons Parents and Hurts Kids (Riverhead, 2006) and a senior fellow at stats.org. Her latest book, co-written with Dr. Bruce D. Perry is The Boy Who Was Raised as a Dog and Other Stories from a Child Psychiatrist's Notebook. (Basic Books, 2007).