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Doctors, Patients, Latest Drug War Casualties

It’s uncomfortable to hear Dr. Frank Fisher speak. His eyes are usually glassed over, seemingly on the verge of tears. 

Above them rests a sweeping coif of white hair; below, a thick, well-manicured white beard. A gentle man, he speaks softly, with jaws and temples tensed, projecting a belabored voice that toils to get from sentence to sentence. As he talks, you get the impression that he’s just a small dose of bad news away from shattering into a thousand pieces.

And with good reason. Fisher, a Harvard-trained physician, once specialized in the treatment of chronic pain. He served a predominantly rural and poor population in California. About 5-10 percent of his 3,000 clients were pain patients, victims of illnesses like cancer, steep falls, or car accidents.

A little more than five years ago, California Attorney General Bill Lockyer initiated a high-profile campaign against pain doctors who prescribe high doses of opioids — drugs such as Oxycontin, Vicodin and codeine. 

Lockyer made Frank Fisher his example. Lockyer and other California prosecutors likened Fisher to a crack dealer. Then, to a mass murderer. Fisher was charged with multiple counts of drug distribution, fraud, and most sensationally, 15 counts of murder. The state seized his assets.  His bail was set at $15 million and he faced a possible life sentence.

Over the next five years, all of the charges against Fisher flitted away. A judge immediately threw out the murder charges in a preliminary hearing. Four years later, another judge threw out the other felony charges — manslaughter and fraud. In May of this year, a jury considered the remaining misdemeanor charges against Fisher and acquitted him on every one of them. One juror said Fisher had been the victim of a “witch hunt.”

Frank Fisher is still a broken man. He spent five months in prison and paid hundreds of thousands of dollars in legal fees. He has yet to get his assets back from the state of California, and he still faces the possible revocation of his medical license. 

“To add insult to injury,” the 50-year-old man says, “I’ve been forced to move back in with my parents.”

Fisher’s case isn’t unusual. According to the U.S. Drug Enforcement Administration, doctors all over the country have been or are being targeted. Professor Ronald Libby of the University of North Florida, who has a book coming out on the topic, said the DEA began targeting pain doctors in 1999. That’s the year a General Accounting Office report rebuked the DEA for failing to decrease the illegal drug supply, despite a 30-year effort armed with an annual budget of billions of dollars. 

Shortly after that GAO report, Libby says, the Department of Justice identified prescription drug abuse as the “primary drug threat to the U.S. population,” and two years later put a plan in place to go after licensed doctors. Prescription drug abuse became a measurable, achievable way for the DEA to justify its budget. A federal prosecutor in Alexandria, Va., told the Washington Post at the time, “Our office will try our best to root out [prescription pain doctors] like the Taliban.”

The media gladly assisted. Despite little supportive evidence, television and newspaper reporters spun up a maelstrom of coverage on how prescription painkillers such as Oxycontin had become the designer drugs du jour. In 2003, the Orlando Sentinel published what was probably the height of the hysteria with a series called “The Accidental Addict,” about doctors who unknowingly addict their pain patients to opioids. 

After months of criticism from patient advocates who poked gaping holes in the series, the paper finally printed an apology and retraction.

But by then, the painkiller myth had been loosed, and local, state and federal officials were collecting trophies. Estimates vary among patient advocates, researchers and the DEA, but between 50 and 300 doctors per year have been brought up on federal charges related to prescribing high doses of narcotics since 2001. 

According to the Pain Relief Network's Siobhan Reynolds, many more have been prosecuted at the state and local level. Others have lost their medical licenses, or had their malpractice insurance cancelled. Consequently, Reynolds said, the number of doctors willing to treat chronic pain has dwindled, and even among those remaining, there’s a growing fear of prosecution, meaning most will err on the side of under-treatment. 

Of course, under-treating pain can subject those same doctors to malpractice suits from frustrated patients. For doctors, it’s damned if you do, damned if you don’t. It’s of no surprise then that many of them have fled the field altogether, Reynolds said.

That’s devastating news for the 48 million Americans who suffer from chronic pain. For them, it’s getting more and more difficult to get a prescription for the drugs they need. And they’re turning to ever more desperate measures for relief.

That’s what happened with Florida pain patient Richard Paey. After a car accident and a botched back surgery confined him to a wheelchair, Paey developed multiple sclerosis. He moved his family to Florida in 1994, but had trouble finding a doctor willing to write the prescriptions he needed. 

Out of desperation, Paey turned to his former doctor in New Jersey, who wrote Paey undated prescriptions, which Paey then photocopied. Paey’s prosecutor acknowledged that all of the medicine in Paey’s possession was for his own use. Nevertheless, he charged Paey with intent to distribute. After three trials, Paey was convicted. Mandatory minimum drug sentencing laws gave Paey’s judge no choice but to send him to prison for 25 years, with a $500,000 fine.  At least one juror has since expressed regret for the verdict. Paey today sits in his wheelchair in a Florida penitentiary.

This crackdown on pain medication is obscene. We now have a system where law enforcement officials tell doctors how to treat their patients. Physicians are required to turn in patients they suspect of opioid addiction. At the same time, cops are posing as pain patients attempting to lure doctors into writing bad scripts, or threatening patients with prosecution unless they testify against their doctors.

The result, patient and doctor advocates say, is that pain patients don’t trust their doctors, and pain doctors don’t trust their patients. It casts a pall over the doctor-patient relationship, and makes honest dialogue between the two impossible. It’s a disgrace.

The Pain Relief Network and the American Association of Physicians and Surgeons report that many of the patients of doctors either prosecuted, suspended, or otherwise run out of the field by this ugly new face of the drug war have deteriorated into dysfunction, lost their jobs, endured divorce or other shattered relationships, or turned to underground drugs for relief.  Many have committed suicide. 

Two patients interviewed for this column say they’re down to their last doctor, and they’re fearful of what they’ll do if that doctor gets targeted, or decides treating pain patients isn’t worth risking his savings, his license, or his freedom.

There are tens of millions of Americans in chronic pain, some of it unimaginably severe.  At the same time, we have an abundant supply of drugs with a proven record in alleviating their suffering. It’s shameful that America’s backward, uncompromising drug war has built an ever-widening schism between the two.

Radley Balko maintains a Weblog at: www.TheAgitator.com.

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