Drug Policy

Tenth Circuit to Hear Arguments Today on the Science Behind Painkiller Prosecutions

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A couple of weeks ago, Jacob Sullum blogged about a case in Kansas where the government seems to be targeting not only Stephen Schneider, a physician specializing in pain treatment and his wife Linda, but also Siobhan Reynolds, who heads up the pain patient advocacy group the Pain Relief Network.

Reynolds has become a sort of shoestring-budgeted PR machine for doctors under investigation whom she believes are getting railroaded. She educates local media on pain treatment, including the sometimes very high doses of medication needed to treat patients who have built up a tolerance to opioids. Her efforts in the Schneider case have resulted in some refreshingly balanced coverage. And that apparently has Assistant U.S. Attorney Tanya Treadway steaming. 

As Sullum noted, last year Treadway tried to impose a gag order on Reynolds. She was denied. Several of Schneider's patients who had spoken out on his behalf say shortly after, federal agents forced their way into their homes, in one case confiscating a letter Schneider had written from prison.

So Treadway is now calling Reynolds the "subject" of a grand jury investigation into possible obstruction of justice. Treadway has asked Reynolds to turn over all of her correspondence with pain patients, attorneys, the Schneiders, and just about everyone else in any way associated with the case. Reynolds is fighting the subpoena, and is now represented by the ACLU.

Last year, Treadway also attempted to bar the Schneiders from obtaining court-appointed counsel, citing their considerable wealth. The problem is that everything the Schneiders own is subject to forfeiture, meaning any attorney who agreed to take their case would do so knowing there would be a pretty good chance he'd never get paid. The government essentially argued that the accused couple should have no counsel in court (unless they could find someone to take the case pro bono), and be barred by law from having anyone defend them in public. When all of that failed, they asked for a change in venue, claiming that patients and Reynolds speaking out for the Schneiders had tainted the jury pool.

Treadway's efforts are particularly egregious given that it has become pretty standard practice for U.S. attorneys to issue press releases and sometimes even call press conferences to announce when a physician has been indicted for over-prescribing painkillers—as they did in the Schneider case. The government can work the media and jury pool all it likes. But when a suspect gets an advocate who knows how to work the media, they first try to shut her up with a gag order, then intimidate her with a grand jury investigation.

But Treadway's aggressiveness may well come back to bite her. Her office originally tried to link the Schneiders' practice to 56 alleged patient overdose deaths. U.S. District Judge Monti Belot balked, and threw out all of the deaths but four. He then sternly warned Treadway not to appeal his decision. Belot also instructed the government not to use inflammatory descriptions like "pill mill" in front of the jury, another common tactic in these cases.

Treadway appealed anyway, delaying the Schneiders' trial by months. The interesting thing is that her appeal allowed the defense to file a cross-appeal that will challenge not only Treadway's attempt to link the Schneiders to the four remaining deaths, but also the government's entire methodology of using "red flags" and questionable links to patient deaths to prosecute pain doctors. Reynolds, who has seen a lot of these cases, says it's the first case she can recall where a federal appeals court will hear arguments on whether the government's system of identifying what it says are drug diverting physicians is scientifically sound enough to be admitted into evidence.

One red flag the government uses, for example, is to look for physicians who simply prescribe a raw number of pills that investigators say is too high, a practice pain advocates say has made doctors afraid of engaging in the high-dose opiate therapy course of chronic pain treatment that's been so effective. Other red flags include doctors who spend what investigators say is too little time with patients to make an accurate diagnosis, a problem pain advocates say has become increasingly common not because more doctors are selling scripts to addicts and drug dealers, but because the few doctors who do still treat chronic pain are overwhelmed with patients whose former doctors have been arrested, stripped of their licenses, or run out of business by investigations.

The Schneiders' brief also argues that the government's practice of linking deaths to opioids is problematic because such deaths often include patients who merely had high concentrations of opiates in their systems and died unexpectedly. Several of the patients who died of heart attacks, for example, weren't checked for signs of heart disease. The heart attack plus a high concentration of opioids in their system was enough for the government to link the opioids to the heart attack.

The government's argument that the Schneiders were causing a disproportionately high number of deaths also rests on comparing the number of clinic patients who died to the population at large, instead of to the number of patients undergoing treatment at a clinic not suspected of any wrongdoing. It isn't all that difficult to see how patients undergoing treatment for chronic pain might have a higher mortality rate than the general population.

The federal government has been using these arguments to prosecute doctors for years, but to this point, there has never been a formal hearing to determine if there's any actual science behind them. Pain specialists are skeptical. The general consensus is that red flags are fine for identifying potentially problematic doctors by, say, a medical board, but they're simply not enough to find a doctor guilty of criminal wrongdoing. Pain specialist and pain organizations have also long decried the arbitrariness with which the red flags and ambiguous links to patient deaths are applied. Today, the U.S. Tenth Circuit Court of Appeals will hear their complaints.

There would be some poetic justice here if Treadway's aggressive tactics in the Schneider case were to result not only in a fatal blow to her own cause, but in the Tenth Circuit becoming the first federal appeals court to call into question the very foundation of how the government builds its case against pain physicians.

Prior Reason coverage of the pain issue here.

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  1. There would be some poetic justice here if Treadway’s aggressive tactics in the Schneider case were to result not only in a fatal blow to her own cause, but in the Tenth Circuit becoming the first federal appeals court to call into question the very foundation of how the government builds its case against pain physicians.

    There would be even more poetic justice if Treadway contracted a condition of chronic pain and no one would treat her. It would be even more poetic if she then bought illegal narcotics, and was arrested and convicted, and forced to live for years and years in prison, writhing in agony every minute of it.

  2. This was a great article. My only question concerns this sentence: ” The general consensus is that red flags are fine for identifying potentially problematic doctors by, say, a medical board, but they’re simply not enough to find a doctor guilty of criminal wrongdoing.

    Understandably, most of these cases brought against doctors are for the benefit of the attorney’s career, not any sort of concern for dying or dead people. However, is there any process, once a medical board identifies a legitimate red flag, to be taken against a doctor suspected of true wrongdoing?

  3. Dear Mr. Balko,

    Any chance you could you communicate this just as effectively by using half as many words?

  4. The general consensus is that red flags are fine for identifying potentially problematic doctors by, say, a medical board, but they’re simply not enough to find a doctor guilty of criminal wrongdoing.

    Agreed. I only wish they would realize that the same exact logic applies to forensic psychology and commitment hearings.

  5. “Any chance you could you communicate this just as effectively by using half as many words?”

    lol, so true. This is probably why I love Balko’s writing so much, he’s meticulously detailed and long winded just like m.e

    Anyway, if you want a shorter version, write it yourself. Link to this article and summarize it. Problem solved.

  6. Warren – ironically, if she were imprisoned in the scenario you describe, she would receive as much pain medication as necessary without question at your and my expense, since they could make sure she wasn’t selling it.

  7. After a hard day at the office, Treadway probably relaxes at home by torturing puppies and kittens with a cattle prod.

  8. a tolerance to opiods

    I know it looks wrong — it must have looked wrong several times while you were writing — but the word is spelled opioids, not opiods

    Once is a slip-up. Four times is a pattern. I forget what twice is. Three is a crowd.

  9. this stuff is so egregious that i don’t even think egregious covers it.

    is treadway a true believer, a monster, or both?

  10. is treadway a true believer, a monster, or both?

    Monster, I think, is unquestioned. There is nothing so sickening like the face of the self-righteous evil.

  11. Is it asking for too much to hope that the President nominates Radley Balko for Souter’s seat on the Supreme Court?

  12. Once is happenstance.

    Twice might be coincidence.

    Three times is enemy action.

  13. if she were imprisoned in the scenario you describe, she would receive as much pain medication as necessary without question at your and my expense, since they could make sure she wasn’t selling it.

    Too bad pain patients aren’t allowed to volunteer for jail.

  14. “However, is there any process, once a medical board identifies a legitimate red flag, to be taken against a doctor suspected of true wrongdoing?”

    Define ‘true wrongdoing’

  15. The “Red Flag” logic is inherently flawed. It is literally not better than tea reading. Harmless actions that are easily explainable are presented as alleged sign of drug abuse/drug dealing.

    Take the case of Rottschaefer for example. A prosecution expert testified that actions by patients that he felt were Red Flags proved that the patients were drug addicts and/or drug abusers. In this expert’s viewpoint, the rationale that the patients used for the mishaps with their medications should never have been believed by Rottschaefer.

    After trial, the witnesses were questioned on the Red Flags in civil proceedings. Each witness reconfirmed that the statements they provided to Rottschaefer were factually correct and each patient refuted the “Red Flag” findings of the prosecution expert. Of course the prosecution could have asked these patients during the trial of Rottschaefer, but alas they chose not to.

    Because of the short comings of the “Red Flag” approach, medical journals no longer support them or publish them. Simply put, you might as well get a magic eight ball and use that when you argue Red Flag this or that. You would probably be more accurate.

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