"The Doctor Wasn't Cruel Enough"

How one physician escaped the panic over prescription drugs

When Dr. Paul Heberle was arrested last April, dozens of chronic pain patients were left in agony. One of Heberle's patients called no fewer than 37 doctors seeking care—all of whom refused to see him once he revealed the name of his prior provider. Finally, Robert Holmes, a 40-year-old man who suffers from a lung injury and requires supplemental oxygen to breathe, resorted to visiting a methadone clinic for drug addicts. He was turned away there, too. More than twenty others reported similar experiences at a meeting of patients affected by the arrest. Six would later attempt suicide.

For many patients, the situation was devastatingly familiar. Heberle had agreed to care for many of them after their previous physician was arrested and then convicted on some of the same charges that Heberle now faced: illegal prescribing of narcotics. That doctor, David Klees, got 12 to 24 years in prison. This time, however, the government would find it wasn't so easy to railroad a pain doctor.

In the last five years—since a media panic over prescription drug abuse began with law-enforcement-driven reports of an "Oxycontin epidemic"—dozens of doctors have been prosecuted for "overprescribing" painkillers. The Justice Department and the DEA have pushed this aggressive new campaign in the war on drugs.

Overwhelmingly, these cases have resulted in convictions with heavy prison terms—or plea bargains with shorter sentences that nonetheless drove the doctors out of medicine. Advocates for pain patients report that, as a result, relief has been increasingly hard to find.

Fortunately, Heberle had an ally that Klees didn't: Siobhan Reynolds and her Pain Relief Network. As the DEA and local prosecutors went as far as creating a poster with Dr. Heberle's picture and the words "overprescribing controlled substances" and "Medicaid fraud" on it, Reynolds visited Erie, PA, to organize Heberle's patients and, for once, get their side of the story into the media.

Nearly all of the prior cases have followed a similar pattern. First, prosecutors blitz local media with reports of out-of-control prescription drug abuse problems and discuss the problem of "pill mills." Then, they swoop in with a SWAT team and arrest any doctor brave enough to actually treat chronic pain with doses of opioid medication large enough to work. They call him a "drug dealer" and "pusher with a pen."

Next, the prosecution brings out addicts for the cameras, who claim the doctor treated them without examining them and "caused" them to develop drug problems—but they don't mention the addicts' motivation for cooperating. In virtually all of these cases, addicts are motivated by reduced or dropped sentences charges from prosecutors, or by the hope of suing the doctors who got them "hooked." Prosecutors also usually fail to note that for most of these addicts, this is far from their first run-in with drug problems or the law.

At some point, however, the government team brings out its most devastating weapon: weeping relatives of patients who have died while under the doctor's care. Reporters are rarely keen to grill the grieving, so their stories tend to stress the prosecution's talking points rather than the fact that these deaths are virtually always either deliberate suicides or overdoses resulting from deliberate misuse of prescription medication. In the Heberle case, the death that started the investigation involved someone who had eaten a patch meant to be worn on the skin—thus immediately ingesting three days-worth of drugs.

Usually, the media buy the tale of evil substances and vile physician-pushers. But Reynolds offered a more compelling alternative narrative. She brought the suffering patients into the media eye. Rather than telling the tale of an evil drug-dealing doctor who brings down the poor addict, she and the patients provided another version of the story, in which the wonderful healer allows his grateful patients to function—until the cops drag him away.

And in fact, Reynolds' account is more accurate. Some 90 percent of people who abuse Oxycontin also have histories of using cocaine and psychedelic drugs. Were most of these people innocent "victims" of evil doctors? Isn't it more likely that they were prior heavy drug users who sought additional drugs and, because there's no objective way of measuring pain, were able to get them from compassionate doctors? Aren't doctors who do believe people's accounts of pain exactly the ones we want in practice?

In the Heberle case, one prosecution expert told the Erie Times-News that the doctor was:

prescribing painkillers to patients with documented prior substance-abuse problems and/or mental impairment.

The paper didn't note that there is nothing illegal about this. Nor did the reporter seem to realize that there's something profoundly sick about assuming that people who are mentally impaired or have a history of drug problems never need strong pain medication.

Fortunately, in the Heberle case, the jury didn't buy the lies. Heberle made no profit from the prescriptions he wrote; he was a former addict himself who was monitored for abstinence. What possible reason could such a person have for deliberately supplying addicts? The only sensible way to see him was as a caring physician, who, like anyone else, does not have a "pain-o-meter" or fool-proof lie detection device in his head or office.

The defense presented expert testimony that laid out the complexities of pain treatment. Although the prosecution essentially put on a malpractice case—representing violations of the standard of care as criminal when they actually are civil violations—the defense beat them back. Their cross examination of a prosecution witness who claimed that certain opioids should only be used for cancer pain was especially effective. The defense simply exhibited a small practice guide which shows that the medications are recommended for other pain as well.

Also effective was the defense expert, Frank Fisher, MD, one of the few physicians to be exonerated after being prosecuted for over-prescribing. He called the prosecution "a crime against humanity," and in conjunction with the defense team, debunked the idea that cutting off pain medication to people with past or even present addictions does anything to help them.

"They showed addictionology for the sham science that it is," says Reynolds, explaining that in previous cases, the defense often had a hard time getting the jury to see that medications can't "make" people into addicts and that no one, addicted or otherwise, benefits from a system where doctors presume all pain is faked.

"The government position is that the doctor wasn't cruel enough," she adds, describing how hard it was for previous defense teams to debunk the notion that addiction can be prevented or treated by stopping or failing to prescribe pain medication.

"By making the pain patients real, we made the good guys and the bad guys change places—and that's hard to do," she says.

Last week, Heberle was found not guilty on all charges. Unfortunately, at least one patient did not live to see the verdict— she had committed suicide, unable to find another doctor to prescribe the medications she needed. And Heberle, like Fisher, will no longer practice medicine, leaving many patients still without help.

As Reynolds asks, "How can they call this protecting the public health?" We hope the Heberle case is the beginning of the end of these senseless prosecutions.