We need to figure out a new way for American society to resolve ambiguous issues — an alternative to federal prosecutors making their bones by tossing individuals in prison via smear techniques designed to inflame rather than enlighten juries.
What prompted me to think about this was the cover story of this Sunday’s New York Times magazine, “When is a Pain Doctor a Drug Pusher?” Author Tina Rosenberg tells two distinct stories here: One is about Dr. Ronald McIver, a physician whose address is now a medium -security prison in Butner, North Carolina. The other is about the never-ending quest people in severe pain go through to find relief, a quest that can inadvertently bring them or their doctors into gray legal areas.
Certainly there are crooked doctors who write fraudulent prescriptions for opiates that drug addicts abuse and drug dealers sell. Nobody objects when prosecutors pursue them. It does not appear to me that Dr. McIver was one of those crooked doctors. As Rosenberg writes,
McIver was a particularly aggressive pain doctor. Pain can be measured only by how patients say they feel: on a scale from 0 to 10, a report of 0 signifies the absence of pain; 10 is unbearable pain. Many pain doctors will try to reduce a patient’s pain to the level of 5. McIver tried for a 2. He prescribed more, and sooner, than most doctors.
Perhaps knowing his intolerance for his patients’ pain, some unscrupulous people posing as patients tricked McIver into giving them drugs illegitimately, which they abused or sold. There’s no evidence McIver ever recognized this or intended to aid them in their criminal schemes. He comes off as a little credulous. But on at least one occasion, his suspicions about a particular patient led him to call the police to ask for background.
Later, of course, prosecutors successfully twisted that call into evidence against him. The logic — very familiar to me now — went like this: You called the cops about this patient. Yes. What happened next? The cop never called me back. What happened next? I assumed the lack of a return call meant my suspicions were unfounded, so I continued to prescribe medicine to this patient. Ladies and gentlemen of the jury, you see what we have here. Dr. McIver knew there was a problem with this patient. Did he stop giving him dangerous narcotics? No, he just went right on doing it. The fact that the law officer was unable to reach him is irrelevant. By this act, Dr. McIver demonstrated his criminal intent to provide drugs illegally.
Others of his patients were prescribed high doses of powerful opioids. This is not necessarily a sign of abuse. As Rosenberg takes pains to explain, high levels can be safe if the patient’s dosage is increased gradually through a process called “titration to effect.” McIver was one of many pain specialists who believed, it appears compassionately, that this was the correct course for some patients. But prosecutors were able to make the jury quiver, apparently, at the sheer numbers associated with these dosages.
One of McIver’s patients died with high levels of an opioid in his blood. The drugs didn’t kill him — a heart problem did it. But the patient’s death was a good data point in the case the government was able to build against him, a ghost story to frighten jurors.
To find out more about the blow-by-blow of McIver’s outrageous prosecution, please read the story. For the remainder of this post, I want to focus on the bigger picture:
No one has analyzed the various prosecutions of pain doctors, so it is hard to determine how many of them look like McIver’s. The D.E.A.’s list is incomplete. There have been many cases like McIver’s, and most of these cases are not listed on the D.E.A.’s Web site. (One possible reason for this omission is that some of these cases are still being appealed.) And many cases that do appear on the list detail only vague crimes: convictions for prescribing “beyond the bounds of acceptable medical practice” or “dispensing controlled substances . . . with no legitimate medical purpose” — which is how the agency will most likely describe the McIver case if it ever includes the case on the list.
The D.E.A. claims that it is not criminalizing bad medical decisions. For a prosecutable case, Caverly, the D.E.A. officer, told me: “I need there to be no connection of the drug with a legitimate medical condition. I need the doctor to have prescribed the drug in exchange for an illegal drug, or sex, or just sold the prescription or wrote prescriptions for patients they have never seen, or made up a name.”
I read this statement to Jennifer Bolen, a former federal prosecutor in drug-diversion cases who trained other prosecutors and now advises doctors on the law. “That’s a good goal,” she said. “I don’t think they have yet reached that goal.” McIver’s case had no such broken connection, and in many cases the government has not produced testimony of intent to push drugs, providing evidence only of negligence or recklessness. In 2002, Bolen was one of the authors of a Justice Department document intended as part of a basic guide to prosecuting drug-diversion cases. The document, in the form of a reference card, dispenses with any need for a broken connection. It suggests that prosecutors need not prove a doctor had bad motives, that to be within the law a doctor had to prescribe “in strict compliance with generally accepted medical guidelines” and that doing an abbreviated medical history or physical examination is “probative” of lack of a legitimate medical purpose. The reference card was on the Justice Department’s Web site but was pulled, according to the Pain Relief Network, which provided the card to me. Bolen told me: “I have no problem saying that if the card was all there was, it was not acceptable. But it isn’t all there was.” She described the card as one piece of a more thorough training, but added that many prosecutors followed its theories.
Prosecutors are in essence pressing jurors to decide whether an extra 40 milligrams every four hours or a failure to X-ray is enough to send a doctor to prison for the rest of his life. One doctor, Frank Fisher, was arrested on charges that included the death of a patient taking opioids — who died as a passenger in a car accident. A Florida doctor, James Graves, is serving 63 years for charges including manslaughter after four patients overdosed on OxyContin he prescribed — all either crushed and injected their OxyContin or mixed it with alcohol or other drugs. “A lot of doctors are looking for safe harbor,” Caverly said. “They want to know as long as they do A, B, C, D or E, they’re O.K.”
The D.E.A. once thought that this was not an unreasonable desire. A few years ago, it worked with pain doctors to develop a set of frequently asked questions that set out what doctors needed to do to stay within the law. The FAQ recommended, for example, that doctors should do urine tests and discuss a patient’s treatment with family and friends. In October 2004, the FAQ were erased from the agency’s Web site. One reason was that one of their authors, who is a doctor, was about to use the list to testify on behalf of William Hurwitz, a pain doctor in McLean, Va. (Hurwitz was convicted on 50 counts of drug trafficking in 2004. His conviction was overturned, and he was recently retried and convicted on 16 lesser counts. He is awaiting sentencing.)
Caverly acknowledged the Hurwitz trial was one reason the FAQ were pulled, but said there were other reasons. He said such a checkoff list could tie the D.E.A.’s hands. “Some doctor’s going to pull that list of dos or don’ts out and say: ‘See, I’m O.K. I did these 10.’ But there’s a new wrinkle there — an 11th one the doctor didn’t do,” he said. Most important, he went on to say, the FAQ had stepped over the line to insert the D.E.A. into issues of medical practice. “We have to stay in our lane,” he said. “Those definitions are the professional community’s — not the D.E.A.’s.”
In a perfect world, such reasoning would make sense. But the agency is defining issues of medical practice in dramatic fashion — by jailing doctors who step over the line. It would not seem to be bothering, however, to draw the line first.
The dilemma of preventing diversion without discouraging pain care is part of a larger problem: pain is discussed amid a swirl of ignorance and myth. Howard Heit, a pain and addiction specialist in Fairfax, Va., told me: “If we take the fact that 10 percent of the population has the disease of addiction, and if we say that pain is the most common presentation to a doctor’s office, please tell me why the interface of pain and addiction is not part of the core curriculum of health care training in the United States?” Will Rowe, the executive director of the American Pain Foundation, notes that “pain education is still barely on the radar in most medical schools.”
The public also needs education. Misconception reigns: that addiction is inevitable, that pain is harmless, that suffering has redemptive power, that pain medicine is for sissies, that sufferers are just faking. Many law-enforcement officers are as in the dark as the general public. Very few cities and only one state police force have officers who specialize in prescription-drug cases. Charles Cichon, executive director of the National Association of Drug Diversion Investigators (Naddi), says that Naddi offers just about the only training on prescription drugs and reaches only a small percentage of those who end up investigating diversion. I asked if, absent Naddi training, officers would understand such basics as the whether there is a ceiling dose for opioids. “Probably not,” he said.
There is another factor that might encourage overzealous prosecution: Local police can use these cases to finance further investigations. A doctor’s possessions can be seized as drug profits, and as much as 80 percent can go back to the local police.
I think about people in my family who are, or were, in terrible pain. Or who might be in the future. I think of their doctors, reading about McIver and other doctors similarly persecuted. It was bad enough when doctors’ treatment decisions were based on fear of civil malpractice litigation. But now the federal prosecutors have joined the party, with all their incentives to win cases no matter what, and with punishments at their disposal that can destroy careers, even lives.
It’s one thing for a doctor to wear a brave face and put his or her patient first in the face of potential lawsuits. But prison? The suffering patient will just have to understand.
The criminalization of gray-area medical decisions is the ultimate empowerment of ignorance, fear and innuendo as the driving forces of our civilization. Despite miraculous medical and scientific advances, as long as we give power to prosecutors to go “booga-booga” to juries, some of those advances will be shelved.
There are countless examples of this trend, but this one really turned my stomach.
*Edited and retitled, 6/18/07