The
Oxycops
By William Fisher
23 March, 2006
Countercurrents.org
Wheelchairbound multiple sclerosis
patient Richard Paey is serving 25 years in a Florida prison for “trafficking”
1/2 gram of OxyContin, even though the prosecutor concedes that Paey
never sold any of his medications. In prison, he now receives more pain-killing
drugs than he was convicted of having.
Dr. William Hurwitz, a pioneering
pain physician, was tried and convicted of violating the Controlled
Substances Act -- which is intended to curb the illicit use of drugs
-- and is serving a 25-year term in federal prison. He was also fined
$2 million.
These are but two of hundreds
of cases in which, in its zeal to stamp out the illegal drug use, the
U.S. Drug Enforcement Administration (DEA) is cracking down on doctors
who prescribe medications to relieve chronic pain, and the patients
who depend on these drugs to live normal lives.
Hundreds of physicians have
been put on trial for charges ranging from health insurance fraud to
drug distribution, even to manslaughter and murder for over-prescribing
prescription narcotics. Investigators have also seized doctors’
homes, offices, and bank accounts, leaving them with no resources for
their defense.
In March 2004, DEA administrator
Karen Tandy told Congress her drug warriors have "been successful
in addressing OxyContin diversion as evidenced by a reduction in the
rate of increase of OxyContin prescriptions being written and a leveling-off
of OxyContin sales." But Ronald Libby, a professor of political
science at the University of North Florida, told IPS he doubts that
sales of opioids like Oxycodone have declined since 2004.
Drug diversion means the
diversion of legal drugs for illicit purposes. Prescription drug abuse
accounts for almost 30% of the overall drug problem in the United States,
representing a close challenge to cocaine addiction. Sometimes these
diverted prescription drugs end up for sale on the street, where they
reap large profits for traffickers.
Starting in the mid-1990s,
and ratcheting up in 2001, the DEA -- part of the U.S. Department of
Justice (DOJ) -- has been leading an aggressive effort to eradicate
the illegal "diversion" of certain prescription painkillers.
A particular target has been OxyContin, one of a class of drugs known
as opioids, which was aggressively marketed by its manufacturer, Purdue
Pharma.
In 2001, the DEA launched
a campaign called the "OxyContin Action Plan”. The DEA says
the plan is necessary due to increasing abuse of prescription drugs,
particularly by youth. The agency, which has teamed up with state and
local authorities, typically employs law enforcement methods developed
in the government’s “War on Drugs”, including aggressive
undercover investigation, asset forfeiture, and informers. It says its
goal is to stop violations of the Controlled Substances Law.
But critics charge that the
DEA has focused too narrowly on doctors, exacerbating the already widespread
problem of untreated or under-treated pain. As a result, well-meaning
doctors are finding themselves subject to costly, potentially career-ending
investigations. Several doctors and many of their patients have already
been sent to prison.
The DEA maintains that only
“criminal doctors” are being targeted, and that its efforts
to prevent the sale of prescribed medications have no effect on the
legitimate treatment of pain.
The pain-management community
disagrees. Authorities say the DEA program reportedly is having a chilling
effect on physicians, who are leaving their pain management specialties
for safer practices, and on their patients, many of who literally cannot
function without medication. The Village Voice newspaper reports that
medical schools are now advising students to avoid pain management practice
altogether.
Ironically, the DEA crackdown
comes at a time when the medical profession knows more than ever about
how to treat the chronic pain that makes life intolerable – sometimes
impossible – for the estimated 50 to 70 million Americans who
live in chronic disabling pain.
Until about 20 years ago,
the medical profession knew little about pain management. Today, pain
management has become a recognized medical specialty, and it is estimated
that there are some 5,000 pain management doctors practicing in the
U.S.
The DEA’s programs
also come at a time when there are more effective pain-killing drugs
on the market and when the Internet makes it easier than ever to obtain
them.
The DEA’s dilemma is
separating legitimate prescribers and users from drug dealers. And the
DEA’s task is made more difficult, not only by its zeal, but by
the fact that those investigating and prosecuting are not doctors but
lawyers and law enforcement agents.
Before he was ever charged
with a crime, Dr. Hurwitz recommended that the DEA “suspend current
prosecutions against physicians who treat pain unless and until a review
by a panel of nationally recognized experts in medical pain management
has found that there is an absence of good faith by the physician. If
only the physician's adherence to standards of care can be questioned,
then the case is not an appropriate one for the criminal process, and
should be referred to the professional regulatory authorities,”
he said.
The Association of American
Physicians and Surgeons, in a letter to the judge in the Hurwitz case,
charged he was convicted on the basis of “false expert testimony”,
which it described as “egregious.”
Their letter said, “That
a tiny percentage of his patients then broke
the law with their prescriptions does not justify imprisoning Dr. Hurwitz
for the rest of his life. A conviction based on this false medical testimony
should not stand….”
The Hurwitz situation is
not isolated. Throughout the U.S., physicians have been prosecuted,
jailed, or have lost their licenses to practice medicine. In addition
to Hurwitz, Dr. Ronald McIver is serving 30 years, Dr. Freddie Williams
is serving life, and Dr. James Graves received a 62-plus-year sentence
for diversion in 2002.
According to Prof. Libby,
who has become an authority on the subject, “Many doctors have
been convicted and almost no one has been acquitted.” He told
IPS, “Most attorneys tell their clients to cop a plea and not
fight it in court.”
Richard Paey was convicted
of fraudulently submitting multiple copies of opioid prescriptions to
treat chronic pain. He was in New Jersey where his doctor treated him,
but then moved to Florida where he was unable to find a physician to
write prescriptions to treat his pain.
Frightened by what they term
a “brutal display of executive power”, most doctors, including
those in the field of pain management, have simply abandoned this sickest
and most vulnerable segment of our population. Patients suffering from
mild to moderate pain, and requiring low dosages of opioids may still
find care, but those patients with high dosage requirements are increasingly
shut out of care altogether.
In 2004 it was estimated
that many of the 5,000 pain specialists in the United States, would
not prescribe opioids. Those few medical practices that do treat chronic
pain with opioids impose severe restrictions on patients’ freedoms.
Prof. Libby told IPS that many doctors are now prescribing over-the-counter
medications such as aspirin and Tylenol, “which are far more dangerous
than opioids if taken in large quantities.”
The DEA claims it investigates
less than one per cent of physicians who prescribe OxyContin or other
drugs covered by the Controlled Substances Act. The agency reported
arresting 34 doctors out of 963,385 registered doctors in 2003, for
selling opioids to addicts or drug dealers for money, sex, or favors.
That is less than 0.001% of the total number of licensed doctors, the
DEA said.
But critics dispute that
figure. Prof. Libby told IPS, “In 2001, the DEA carried 861 investigations
of doctors. If we use this figure instead of 34 arrests it means that
more than 17 percent of the roughly 5,000 doctors who treat pain patients
were investigated. That means that than one out of every six doctors
who treat chronic pain patients were under criminal investigation.”
A not-for-profit advocacy
group, the Pain Relief Network, is suing to have the Controlled Substances
Act declared unconstitutional, and is seeking to enjoin the DEA from
enforcing the law against physicians.
To calm its critics, the
DEA commissioned several pain specialists to work with
Federal officials to create
guidelines for physicians who treat pain with opioids. These guidelines
were posted on the agency's website, and most doctors were led to believe
that following the recommendations would keep them safe from prosecution.
But that understanding didn't
last long. Late last year the guidelines were taken off the DEA's website.
The agency claimed it wasn't bound by any standards or practices when
it came to determining what physicians it would investigate.
Removal of the guidelines
coincided with Dr. Hurwitz’s trial. The doctor’s attorneys
attempted to have the guidelines admitted as evidence on the belief
that Hurwitz's practice conformed to their parameters. They failed.
A few weeks after Hurwitz's judge refused to admit the guidelines as
evidence, the DEA renounced them, and essentially declared it had carte
blanche to launch an inquiry.
David Jorenson, the academic
pain specialist who headed the committee that authored the original
guidelines, sent the agency a sharply-worded rebuke. Three other professional
associations representing pain specialists followed with a second letter.
And the National Association of state Attorneys General wrote to the
DEA, expressing concern that the agency was overstepping its bounds
and interfering with the legitimate treatment of pain. The letter was
signed by 30 AGs from both parties.
However, the DEA remains
unmoved, insisting its revocation of the guidelines did not represent
a shift in policy and that its pursuit of doctors should have no effect
on legitimate pain treatment.
Dr. Alexander DeLuca, MPH,
a member of the American Academy of Preventive Health and a Policy Analyst
and Board Member of the Pain Relief Network, told IPS, ”Relations
between physicians and the DEA have probably never been worse in modern
times.”
He added, “Law enforcement
does not deserve a place at the table where physicians, social workers,
and politicians of good will need to meet to deal with drug use and
pain problems as public health, not criminal, matters.”