Judge Wexler’s formulation at the trial meant that a physician, regardless of his expertise, could be convicted of a serious felony on the basis of what government expert guns-for-hire were willing to testify is the objective standard for “accepted medical practice.” Although the Court of Appeals found this wanting, its own formulation was no clearer than was Judge Wexler’s. The appellate court seemed to want to have its cake and eat it too. An objective standard for “accepted medical practice” governed such cases, but a doctor’s subjective good faith also somehow mattered. As one of the judges on the Fourth Circuit panel noted, in agreeing with the reversal of the conviction but dissenting from the disarmingly “objective” standard that the appellate court sought to substitute for that of the trial judge: “I do not believe good faith should be objective; the two terms are contradictory, it seems to me.” In other words, neither Judge Wexler’s nor the Fourth Circuit’s formulation took into account that physicians sometimes attempt patient cures by techniques that they, in their experience, have found effective, even if more establishment members of the profession, or narcotics officers, or lay jurors for that matter, have different ideas. The fundamental problem—and risk—facing pain physicians remained even after Dr. Hurwitz’s appellate reversal. The bottom line is that while judges might understand the realities and exigencies of medical practice better than do the narcotics agents, they have thus far been unable to come up with an interpretation of the law that gives medical practitioners clear advice as to how to avoid personal and professional catastrophe.
The Department of Justice retried Dr. Hurwitz after the appellate reversal. It was a fascinating trial, for it provided a window on precisely what is wrong with seeking to control and second-guess pain physicians based on the amorphous criminal standards wielded by federal drug bureaucrats and prosecutors.
At his retrial, Dr. Hurwitz presented the testimony of two of the nation’s leading pain experts from top-notch research hospitals and medical schools, Dr. Russell K. Portenoy of Beth Israel Medical Center in New York and Dr. James N. Campbell of Johns Hopkins University, both of whom testified without fee.16 They explained to the jury the difficulty of finding pain physicians willing to prescribe sufficient quantities of opioids to give full pain relief to those patients needing it. The fact that such patients often use illegal drugs on the side complicates the physician’s dilemma. Dr. Campbell testified that while he was initially not certain that Dr. Hurwitz’s high-dose approach was reasonable, he was finally convinced by the results achieved. Dr. Hurwitz, he told the jury, was one of the few physicians left willing to deal with such “problem patients.” Dr. Campbell thought such treatment to be within the “bounds of medical practice,” contradicting the prosecutors’ experts.17 In the end, the trial judge dismissed the most serious charges involving injury or death. The jury nonetheless convicted the physician on 16 counts of drug trafficking, acquitted him on 17 counts, and deadlocked on 12 remaining counts that the judge then dismissed. The 57-month sentence he received was a significantly more favorable result than the convictions on all counts that drew Dr. Hurwitz a 25-year sentence at the first trial, but it was far from ideal.18 Of course, in the bigger picture, the fundamental problem still faced physicians in the business of trying to alleviate chronic pain: they treat patients at their own considerable risk. In the case of Dr. Hurwitz, he suffered personal and professional ruination.
John Tierney, a science columnist for The New York Times who reported on the trial, sought to find out why the jurors saw fit to convict Hurwitz on some counts despite the overwhelming testimony at trial that he made little or no money from his pain relief practice and that prestigious experts vouched for the professionalism of his approach to pain management in extreme cases. Tierney interviewed three of the 12 jurors, and they all said more or less the same thing. “The jurors were confused by the law,” he wrote, noting that “the law is a ass (to quote Mr. Bumble from Oliver Twist).” The jurors agreed that the patients turned government witnesses “used the doctor shamelessly” and “exploited him,” and that the doctor didn’t get “anything financial out of it.” But Dr. Hurwitz “fell down on the job,” said one juror. “There were red flags,” pointed out by the prosecutors, that Dr. Hurwitz “should have seen,” said another.
Tierney then got to the heart of the matter:I asked the three jurors what they made of the distinction made by Dr. Hurwitz’s lawyers and by the judge: that this trial was not a malpractice case. In legalese, the jurors were to decide not whether Dr. Hurwitz had provided the proper “standard of care,” but whether he had violated the Controlled Substances Act by prescribing drugs “outside the bounds of medical practice.” The jurors said they were all aware of the distinction, but none of them claimed to understand it.
“I don’t know that I know enough to be clear about that gray area between malpractice and out of bounds,” Juror 1 said.
“We just had to go with our gut,” Juror 2 said.
“That was definitely a struggle,” Juror 3 said. “That was a gray area.”19
As Tierney put it, when a physician makes a medical judgment in this area, he or she can readily be reduced to a drug dealer. “All it takes is a second opinion from a jury.”20 Numerous physicians have been prosecuted for dispensing pain-relieving drugs, with personally and professionally crippling results. Some, after exhausting their financial resources, are ultimately found not guilty. Still others have their charges reduced through a plea agreement that nonetheless debilitates their practice. Most doctors charged with such violations have their assets immediately frozen, making it nearly impossible to assemble the resources to present an adequate legal defense. Doctors charged with criminal violations often have their reputations irreversibly tarnished in the press; this, too, makes it impossible for such a physician to work. And since most state medical boards will suspend an indicted physician until the outcome of his or her trial, physicians usually cannot work to finance their legal defense.
The case of Dr. Frank Fisher, though it did not result in conviction, illustrates the point.21 Dr. Fisher had developed a practice comprised of approximately 3,000 patients in California. He treated about five to ten percent for pain. In 1999, Dr. Fisher was arrested and charged with several counts of murder (a “mass murderer,” said prosecutors), fraud, and drug diversion. What had Dr. Fisher done to elicit such grave charges? Prosecutors claimed, among other things, that by over-prescribing narcotics he was criminally culpable for the death of a patient who died because her prescription lapsed after Dr. Fisher had been jailed.
The emptiness of the prosecutors’ dramatic allegations was later hinted at when a judge dismissed the murder charges and lowered bail after a 21-day preliminary hearing. Four more years passed before the remaining felony charges were dismissed, and it was not until May 2004 that a jury acquitted Dr. Fisher of the remaining misdemeanor charges. By then, the damage had been done. Besides spending five months in jail, the financial burden of fighting for his reputation drained the 50-year-old Harvard alum’s assets. After the acquittal, he had no choice but to live with his elderly parents.
Not only are doctors vulnerable to the threat of such prosecutions, but, just as important, chronic pain sufferers cannot obtain relief. A 2005 survey conducted by ABC, USA Today, and Stanford University Medical Center reported that “[just] 48 percent of frequent pain sufferers, and 50 percent of those with chronic pain, say they got at least a good amount of relief after seeing a medical professional.”22 According to Tina Rosenberg’s 2007 cover story for The New York Times Magazine, the American Pain Society estimates that less than half of cancer patients are getting adequate relief for their pain.23 Most of the estimated 50 million chronic pain sufferers in the United States are forced to rely on over-the-counter anti-inflammatory medicines, like Aleve® or Motrin®. These drugs are considered by drug warriors to be safer than prescription painkillers, but this reasoning is flawed. Because over-the-counter alternatives often don’t sufficiently alleviate chronic pai
n, patients frequently overmedicate themselves, potentially leading to stomach bleeding and ulcers. According to some estimates by the American Gastroenterological Association, as many as 16,500 Americans bleed to death annually as a result of the over-prescription of anti-inflammatory medications such as ibuprofen and naproxyn, the active ingredients found in Motrin® and Aleve®.24
Perhaps the punchiest summary of the harrowing situation faced by patients in severe pain and the doctors who treat them came from Siobhan Reynolds, head of the Pain Relief Network. Pondering the Hurwitz trial juror’s contention that Dr. William Hurwitz “fell down on the job,” she asked, “What’s the job? Hurwitz didn’t fail as a doctor; he failed as a law enforcement officer.”25
The kinds of tactics, and persistence, shown by federal agents and prosecutors in their war against Dr. Hurwitz are repeated time and time again.
Dr. Cecil Knox, a pain management specialist who ran a clinic in Roanoke, Virginia, was subjected to the indignities of a storm-trooper raid on his office, in full view of his patients, in February 2002. The federal agents, according to Maia Szalavitz’s article in Reason magazine, were “helmeted, shielded, and wearing bullet-proof vests,” and even threatened one of Dr. Knox’s employees by putting a gun to his head and demanding that he “Get off the phone! Now!”26 After being handcuffed and shackled with leg irons, Dr. Knox and several employees were handed a 313-count indictment. Despite the storm-trooper tactics and the scroll of charges, a jury later acquitted Dr. Knox of some 30 of the 69 charges he faced. The jury hung, however, on the rest of the counts because of a single juror who voted guilty. The government subsequently refiled 95 charges against the pain-relief specialist. Almost predictably, instead of risking a substantial sentence, Dr. Knox entered into a plea bargain, voluntarily surrendering his license to practice medicine. In January 2006, he was sentenced to five years of probation as part of the deal.27
The tyranny of anti-opioid prescription prosecutions also extends to Arizona, where highly respected pain physician Dr. Jeri Hassman was charged with over 350 counts of “drug dealing with a pen;”28 to Florida, where Dr. James Graves was convicted in 2002 and sentenced to 63 years in prison for causing the deaths of four patients; and to South Carolina, where Dr. Deborah Bordeaux was convicted of drug-related offenses and sentenced to eight years in prison for working for just two months at a pain-management center .29 There is little reason to believe that this pattern will change anytime soon without a major reaction by physicians and their professional associations, their patients, and citizens who understand how unrealistic it is to assume that young physicians will choose to go into such a dangerous specialty.
By early 2006, two physicians were able to report in the authoritative New England Journal of Medicine that patients in severe pain continue to live in a realistic “fear of undertreatment of distressing symptoms… despite the efficacy of opioids…to treat pain.” This fear on the part of physicians remains so great that pain doctors at times err so far on the side of personal caution that they commit legally actionable malpractice by failing to prescribe adequate pain-killers.30 Just a couple of months later, George J. Annas, a nationally recognized medical-legal expert at Boston University, stated that “the DEA lately has seemed much more menacing to physicians than it had been, especially since the agency withdrew its support for pain-prescribing [FAQ] guidelines that had been adopted by the Federation of State Medical Boards.”31 Even so, Annas speculated with obvious horror at how much worse the situation would have become had the Supreme Court not delivered the drug warriors a rare setback in the DOJ’s attack on Oregon’s trailblazing attempt to legalize physician-assisted suicide.
Under the Oregon Death With Dignity Act (ODWDA), passed by that state’s voters in a 1994 ballot referendum, state licensed physicians, acting within safeguards contained in the pioneering legislation, could prescribe lethal doses of a drug in response to a knowing request by a terminally ill patient in excruciating pain. These drugs, however, are regulated under the federal Controlled Substances Act (CSA) and therefore require a prescription written by a physician registered with the DEA. These drugs are typically prescribed in smaller doses for the relief of pain, but in more massive doses to hasten the inevitable process of dying.
Attorney General John Ashcroft, who possessed a law degree but not a medical one, decided in 2001 that prescribing lethal doses of such medications should not be deemed, by federal law enforcement, as “legitimate medical practice.” He reasoned that since the art and science of medicine is to heal the sick, it was counter to that end to intentionally kill the patient. Therefore, ruled Ashcroft, such prescriptions would thenceforth be deemed violations of federal law. Transgressions could result in revocation of a physician’s license to prescribe controlled drugs as well as criminal prosecution because, in the words of the applicable regulation, the prescription of the controlled substance was not “issued for a legitimate medical purpose.” Ashcroft so decreed, even though the Oregon statute set out carefully nuanced guidelines that sought, for example, to distinguish patients in a terminal and unbearable state of physical pain from those acting in a state of depression. The statute reflected the best medical and political judgments in the state of Oregon, and yet the attorney general (a mere lawyer, operating from far-away Washington, D.C.) saw fit to wield effective veto power.
The tension between federal drug-dispensing regulations and the medical profession’s need for flexibility and balance in treating patients has been around since the beginning of the 20th century. Congress made things worse, and considerably more vague, when it amended the CSA in 1984 to allow the attorney general to revoke a physician’s license to prescribe regulated drugs if he or she thought that granting a doctor such powers would be “inconsistent with the public interest.” However, Attorney General Ashcroft’s “Interpretive Rule” broke new ground and went even further. He announced that assisting the death of a terminally ill patient by dispensing controlled substances was not a “legitimate medical purpose” and constituted a federal crime. This presented medical practitioners with a somewhat different situation than the typical vagueness problem that besets practitioners of more routine pain medicine who are suddenly charged with being drug dealers. Now, physicians who specialize in the relief of suffering at the end of a patient’s life, and who are specifically authorized by state law to hasten death, would be faced with federal indictment for misuse of controlled drugs.
In a rare rebuke to federal drug warriors, the Supreme Court in January 2006 ruled 6-3 against Ashcroft and his Interpretive Rule.32 The high court’s language was unusually acerbic, especially given that the case was decided on an otherwise routine point of statutory interpretation. The Court’s opinion pivoted on the technical question of whether Congress, in the CSA, gave the attorney general authority to define a physician’s prescription of lethal doses of controlled drugs, under tightly regulated terms set by the state, to be a violation of acceptable medical standards and hence a federal crime.
The attorney general argued that all his Interpretive Rule did was elaborate his own regulations that require all prescriptions of federally regulated drugs be issued “for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Such a determination, argued Ashcroft, was entitled to substantial “deference” by the federal courts. To a large extent, the Supreme Court’s decision in the case turned on the degree of deference to which the attorney general was entitled.
Normally, Ashcroft would have been accorded enormous authority, since the federal courts have been extremely hesitant to do anything that would weaken the government’s power to conduct its nearly century-old “war on drugs.” But the high court posed a question that federal drug warriors were not accustomed to being asked: “Who decides whether a particular activity is in ‘the course of professional practice’ or done for a ‘legitimate medical purpose’?” The Court noted that this latter phrase was “susceptible to more precise def
inition and open to varying constructions.” Nonetheless, it was clear that the CSA did not authorize Ashcroft to declare illegal a “medical standard for care” that under state law was legal. The Court went on to observe that, while the attorney general can make decisions under the CSA that are law enforcement decisions, medical decisions would have to be made, under the terms of the statute itself, by the Secretary of Health, Education and Welfare. The secretary, in turn, has an obligation to consult with the “American medical and scientific community” on such judgments because “Congress sought to change the fact that criminal prosecutions in the past had turned on the opinions of federal prosecutors.”
Previously, the federal courts could reliably be counted on to give the drug warriors virtually free reign. Now, the Supreme Court was pulling back some, limiting the attorney general’s powers to combating the diversion of drugs to addicts and preventing “illicit drug trafficking.” The attorney general, ruled the Court, could not define the prescription of narcotic drugs under Oregon’s assisted suicide statute as illicit trafficking.
While the Supreme Court’s decision provided no direct comfort to physicians engaged in the practice of pain relief, it did take the unusual step of expressing judicial skepticism about the ability and authority of the drug warriors to trump the judgment of the medical profession in another arena—the end of life. The Court concluded by urging Congress to regulate medical practice, in clear language, so as to prevent doctors from abusing their prescription-writing powers, but emphasized that the CSA had “no intent to regulate the practice of medicine generally.”
Three Felonies a Day Page 12