Drug Policy

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).

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  1. this is a classic example of punishing the wrong people. when govt. became aware of the all the nimrods using oxycontin as a heroin substitute (scraping off the time release and snorting or injecting), they raised the schedule to CII

    what this effectively did is strongly discourage MD’s from prescribing it (since they get far more scrutiny on their CII scrips), and make it much more difficult for legitimate pain victims to get it prescribed to them, and to find a pharmacy that carries it.

    MD’s have always been bad for pain management (getting better, though), but it’s especially hard when they fear DEA scrutiny for trying to help their patients by prescribing legitimate meds for legitimate reasons.

  2. As a libertarian, I feel obliged to state that medical policy should be left up to the individual( and whoever he contracts with for medical services).

  3. As a libertarian, I feel obliged to state that medical policy should be left up to the individual( and whoever he contracts with for medical services).

    As a libertarian, I freely choose to state that you’re not obligated to state anything you haven’t contractually obligated yourself to state! 🙂

    I haven’t RTFA, but I assume we can look at this in a “lesser of evils” light.

  4. Oh, obliged, not obligated. Well, same difference, but it does kinda ruin my joke….

  5. this is a classic example of punishing the wrong people.

    Nah, they’re getting the “right” people. People with money – so they’ll hire lawyers and keep the prosecutor’s office busy and in dire need of more public funds. The “junkies” will just cop a plea right away – where’s the sport (and fundraising publicity) in that?

  6. this is a classic example of punishing the wrong people.

    Well sure, in that they shouldn’t be punishing anyone, I suppose that’s right. But who are the people your comment implies are the right people to be punishing??

    As a libertarian, I feel obliged to state that medical policy should be left up to the individual

    Exactly – I suspect (and hope) fydor is right that the “leaving it up to the states” thing is but a pragmatic improvement over the status quo since philosophically “the state” has no more right to be involved in medical decisions (nor whatever you choose to ingest) than the feds.

  7. “Well sure, in that they shouldn’t be punishing anyone, I suppose that’s right. But who are the people your comment implies are the right people to be punishing??”

    my point is that you don’t punish legitimate (ie legal) users and potential users of oxy and the physicians that are prescribing it, because SOME physicians are abusing it (by writing fraudulent scrips) and some drug users are abusing it (by scraping off the time release and snorting it).

    like i said, i don’t agree with the drug war in general, but GIVEN that we federally schedule drugs and we restrict them, punishing people who need the drugs for medical reasons and the doctors who prescribe them, in order to limit (or try to limit) abuser’s access to them is just plain wrong.

    i agree that the state should not be telling people what drugs they should use, or more specifically they should not be CRIMINALIZING the use of certain drugs.

  8. I’ve always said that it seems like the rabid pro-drug-war moralists must never have had any real problems in their lives; never watched a spouse die before their eyes (I have); and never been around someone suffering the ravages of chronic pain from sickness or injury. The big “S” State needs to just get out of the business of telling us what to do with our bodies.

  9. Dear Whit,
    Class II is what the Oxycodone has ALWAYS been classified, as long as I wrote it(since 1980!) It was not changed by the federal (DEA) system.

    To everyone else,
    But, then again, those feds are cops, and not doctors! Why should they be involved with MEDICAL decisions? They have it all screwed up, already!!! The decision, to add drugs to the controlled drug list, is , for the most part, arbitrary and capricious! It clearly states the drugs are to HAVE NO MEDICAL USE if classified as Class I. If you check into it, you will find many errors! Why should the behavior of one percent, or less, of pain patients, require that we stop treating all chronic intractable pain in a proper, compassionate manner?

    It is, also, not popular among doctors, to use high dose opiods, although scientifically proven to be extremely safe. (And, ignoring the fact that patients rarely get addicted with proper care!) That is why medical boards, full of doctors, NOT EDUCATED on pain management, also make errors in their judgment of pain management doctors, who would treat chronic pain!

    As long as ignorance guides medical care, then don’t expect any better treatment of your intractable pain. Live with it! (or kill yourself!?) is the attitude of the society, right now! A society that I would not trust to take care of me in a “socialized” medical setting. Not many seem to care about suffering, except maybe a few compassionate doctors. Some, who are unemployed permanently, like me!

    Yes, criminals, who would write prescriptions, to increase their income, should be in jail!! (mostly for being so stupid and greedy!!) But doctors treating patients would not be under the same scrutiny. Most pain doctors are not bad people!

    Great article, as usual, Maia!!

  10. If it weren’t for Siobhan Reynolds (President of the Pain Relief Network), Mr Paey might still be in jail.

    This woman has worked hard to bring justice to the many people with unrelenting chronic pain. The PRN should be flooded with donations for the work Ms. Reynolds puts in to see that people such as myself (I have chronic pain) can continue to go to a doctor who isn’t intimidated by the DEA and treats his patients properly with Opoids that continues to be the best treatment for severe pain.

    Thank God for Ms. Reynolds and Dr. Frank Fisher and others who have used their personal time to protect all of us.

  11. Great article, I did not know this was going on. IMO, just another example on how are war on drugs screws everything up.

  12. All drugs should be freely and cheaply available.
    Until around 100 years ago that is generally the way it was.
    Good on Gov. Christ.

  13. I should add that the only drug abuse that hurts society as a whole is when people don’t finish their course of antibiotics or over use anti biotics.
    This creates resistant strains of dangerous pathogens.

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