December 29, 2003 - The Washington Post

Worried Pain Doctors Decry Prosecutions

By Marc Kaufman, Staff Writer

Jeri Hassman, one of Tucson's busiest pain doctors and a specialist in rehabilitation, was getting ready to inject a patient with a pain-killing treatment one day in March when federal officials burst into her Calmwood clinic, took off her jewelry, put her in handcuffs and led her to jail.

Months earlier, Drug Enforcement Administration agents had placed the doctor and some of her patients under surveillance and had sent in undercover patients complaining of pain. They knew that large doses of morphine-based drugs such as OxyContin and Lortab were showing up around Tucson in the wrong hands, and Hassman was suspected of writing some of the prescriptions that made that possible.

Hassman was stunned. She does not deny that she prescribed a lot of powerful drugs to many patients, but she insists she was following good medical practice when she did.

Her clinic has elaborate machinery to stretch and reset her patients' injured muscles and bones, but she is one of many pain doctors who have become convinced that powerful prescription narcotics are often the only way to bring real relief to chronic pain sufferers. She saw herself as a compassionate and cutting-edge physician.

In March, the two different worldviews collided. Hassman was charged with 362 counts of prescribing controlled drugs outside the normal practice of medicine. A single mother of two, she faces up to 28 years in prison if her trial in February ends in convictions.

"I never, ever imagined something like this was possible," said Hassman, 47, a Cornell and New York University graduate. "When they came into the office to arrest me, it was like a bad movie that wouldn't end."

Hassman's confusion and dismay are shared by a substantial and growing number of doctors in the troubled field of pain management.

In recent years, similar charges of illegally prescribing prescription narcotics, criminal conspiracy, racketeering and even murder have been brought in dozens of states against scores of doctors who treat chronic pain with prescription narcotics. At least two have been imprisoned, one committed suicide, several are awaiting sentencing, many are preparing for trial, and more have lost their licenses to practice medicine and accumulated huge legal bills.

Top DEA officials say only a relative handful of doctors have gotten into trouble with the law and that all were prescribing drugs outside medical norms in a manner that amounted to trafficking. The prosecutions, they say, have had a positive effect.

"There have been a number of very high-profile cases, and they have been a learning lesson to other physicians," said Elizabeth Willis, chief of drug operations for the DEA Office of Diversion Control. "We think doctors are much more aware of appropriate guidelines for prescribing OxyContin now."

But increasingly worried pain specialists say that although some doctors may be running narcotic "pill mills" and even selling prescriptions for narcotics, many others who have been arrested appear to be responsible physicians.

Their crime, it seems, is that they were supplying their chronic pain patients with sometimes large numbers of prescriptions for controlled but legal medications to treat their pain. The result, the doctors say, is that the established medical use of opium-based drugs for pain is becoming criminalized by aggressive drug agents and zealous prosecutors.

Adding to their concern, the official rhetoric has escalated to the point that federal and state prosecutors often accuse arrested doctors of being no different than drug kingpins or crack dealers. After the indictment in September of McLean pain specialist William E. Hurwitz, a prominent and controversial doctor accused of running his practice as a criminal enterprise and prescribing OxyContin illegally, Attorney General John D. Ashcroft said the arrest showed "our commitment to bring to justice all those who traffic in this very dangerous drug."

Some pain doctors are organizing to push back, and in recent months a loose national movement has been formed to contest what some call the "war" being waged against pain doctors, pharmacists and suffering patients. A new group called the Pain Relief Network is organizing a march on Washington in April to protest the prosecutions and has hired an attorney to develop a legal strategy for appealing some of the convictions.

"Fifteen years of progress in treating patients in chronic pain could really be wiped away if these prosecutions continue," said Russell K. Portenoy, a pain specialist at Beth Israel Medical Center in New York who is considered one of the fathers of modern pain management. Since the mid-1980s, Portenoy has been advocating the use of morphine-based drugs to address what he considers to be the widespread, unnecessary and even cruel undertreatment of chronic pain.

"Treating people in pain isn't easy, and there aren't black-and-white answers," he said, agreeing that some doctors have not been sufficiently careful about potential problems with addiction and diversion of drugs. "But what's happening now is that the medical ambiguity is being turned into allegations of criminal behavior. We have to draw a line in the sand here, or else the treatment will be lost, and millions of patients will suffer."

According to pain specialist Rebecca J. Patchin, a board member of the American Medical Association, an estimated 50 million Americans live with chronic pain. She says almost half of all Americans will seek care for persistent pain sometime during their lives, but that many will not receive the treatment they need.

"Doctors hear what's happening to other physicians," she said, "and that makes them very reluctant to prescribe opioids that patients might well need."

Fear of Addiction

Narcotics have long been used to relieve pain, and they have also long been a major concern for law enforcement. Although natural and synthetic opioids such as morphine, codeine and oxycodone have been proved to reduce pain, they also can cause addiction and all the problems that come with it.

Until the mid-1980s, the law enforcement concern trumped the therapeutic value, and opioids were not widely used outside hospitals. But then research into narcotic pain relief began to show surprising results: that people in pain generally did not become addicted to the drugs, and that many could return to near-normal life with careful narcotic treatment.

These insights led to the development of new morphine-based products such as OxyContin, a narcotic formulated to be released over 12 hours and so better suited for pain relief. The maker of OxyContin, Purdue Pharma, actively advertised the drug to doctors when it was introduced in 1996 and said it could not be abused because of the capsule that surrounded the active ingredients.

But Purdue Pharma was wrong about that, and by 2000 OxyContin had become a significant drug problem in many parts of the country, especially in rural areas. Scores of deaths and thousands of emergency room visits were attributed to overdoses from OxyContin capsules that had been broken open and the contents snorted or injected by addicts and recreational users.

Media reports of those deaths and of the spread of OxyContin abuse through sometimes improper prescribing led to a 2001 directive by the Drug Enforcement Administration to "target individuals and organizations involved in the diversion and abuse of OxyContin."

Doctors, and sometimes their support staff, quickly became the targets of choice. The DEA also began to limit the amount of oxycodone (the active ingredient in OxyContin) that companies were allowed to manufacture, and total production declined by about 25 percent from 2001 to 2002.

As DEA officials see it, the medical community needs to get much better control over narcotic prescribing. The agency has met frequently with societies representing pain doctors and pain medicine and has encouraged them to expand narcotic-use training for physicians -- which all agree is woefully inadequate. The agency often says that it supports the legitimate use of prescription narcotics for chronic pain sufferers and has agreed to some general guidelines worked out with those groups.

But the DEA also is the agency targeting pain doctors who write frequent narcotic prescriptions and collecting information leading to arrests. And as many doctors have learned, the government does not require evidence of what is normally considered criminal intent to bring charges.

"We don't have to prove extra money is being made or doctors are getting favors for prescribing," Willis of the DEA said. "What we have to prove is that they are operating outside the course of legitimate medical practice."

That standard, however, is ever-changing, and one that is generally set by state medical boards, rather than by any single national agency. The standard is also broad, leading to prosecutions such as the one against Hassman in Tucson. In the federal criminal complaint against her, the sole allegation is that she prescribed controlled substances "not being in the usual course of professional practice and not for any legitimate medical purpose." The Arizona U.S. attorney's office declined to discuss the case.

The broadness of the medical care standard has led to drug charges against entire practices (such as the seven-doctor Comprehensive Care and Pain Management Center in Myrtle Beach, S.C.), murder charges against a California doctor who prescribed OxyContin for a woman who had high levels of the drug in her system when she was killed as a passenger in an auto accident, and multiple murder charges against a Roanoke doctor for prescribing narcotics misused by patients, resulting in overdoses. Pharmacists, doctors' office managers and receptionists have been charged as well.

In all, the DEA statistics show that the agency has opened 406 cases of OxyContin trafficking alone since 1999 and made 464 arrests. The number of investigations and prosecutions of doctors soared in the late 1990s as the problem of OxyContin and prescription drug abuse grew, but the DEA says the number of new cases declined this year. Pain management leaders, however, say that they have not detected any easing of law enforcement scrutiny, and they say the severity of the charges brought against doctors has increased steadily.

The prosecutions have been aggressive -- and tenacious. When 1999 murder charges against Harvard University-trained doctor Frank Fisher and two pharmacists were thrown out by a California judge, prosecutors filed lesser charges. They, too, were dismissed early this year. In Roanoke, pain doctor Cecil Knox was acquitted last month of most charges against him related to prescribing narcotics, and the other charges ended with a hung jury. The local media reported that only one juror held out against acquitting Knox on the three most serious charges of prescribing narcotics that killed or injured patients. Federal prosecutors said they will retry the doctor on those and other charges.

Because of the sometimes complicated legal issues involved and some doctors' fears of being targeted, few medical societies have publicly challenged the prosecutions. The exception is the Association of American Physicians and Surgeons, a national organization of 4,000 members dedicated to the "sanctity of the patient-physician relationship." The group is working for congressional hearings on the pain prosecutions and will participate in the protest in Washington in the spring.

That protest is being organized by Siobhan Reynolds, founder of the Pain Relief Network and a caregiver for a chronic pain sufferer.

"The government says that it wants to balance the needs of patients in pain with the need to keep addicts from abusing medication, but that's not what's being accomplished," Reynolds said. "The only people being kept from using drugs in our society are those legally entitled to use them, our sick people."

Controversial Relationship

Hassman first learned that her opioid prescribing was under review from the Arizona Medical Board, which licenses doctors. She later found out that the board had received a complaint from an insurance company about her prescribing, she said, and the board set up a routine and supposedly confidential meeting to discuss it.

Although the right to practice medicine is regulated by state boards, the right to prescribe controlled narcotics is regulated by the DEA, and the parties share similar concerns, and sometimes information. In Hassman's case, that working relationship became controversial.

According to an affidavit by Barry Cassidy, executive director of the Arizona board, Hassman was told that her conversation was being tape-recorded. She was not told, however, that DEA agents were watching the conversation on closed-circuit television and participating in the interview "by surreptitious means." She learned about the DEA role a year later, during discovery proceedings for her criminal case.

Cassidy said he did not know about the DEA role and would never have approved it because board conversations are supposed to be confidential. But Dale Austin, senior vice president of the Federation of State Medical Boards, said it is quite common for state boards and the DEA to work together, although the degree of collaboration differs from state to state.

Hassman's attorney, Bates Butler, said the DEA-medical board connection was also at work when the Arizona board began collecting the opioid prescribing records of two Tucson doctors who defended Hassman at a news conference. One of them, Susan Fleming, said she believes the timing of the review was "no coincidence" and said, "I'm very concerned that one or another of us will become the next target."

Joan Lewis, a pain specialist in Albuquerque, also ran into trouble with her state medical board after it received complaints from insurance companies and emergency room doctors about her opioid prescribing. Although she helped write the New Mexico medical board regulations for prescription opioid use, she was brought before the state board in 2000 and accused of "injudicious prescribing."

She said she was worried but also angry, because she had for several years been doing elaborate research on how her patients responded to opioids and other drugs, including one paper published in the American Journal of Pain Management.

Faced with the possible loss of her license to practice, Lewis settled with the New Mexico Board of Medical Examiners and agreed to a pain management "mini-residency" in Tennessee, which she had to organize herself, and submitted to two years of monitoring by a board-approved doctor. Lewis also agreed to significantly limit the strength of the opioids she prescribes, although she said many patients improved only with much higher dosages.

The whole episode, she said, cost her at least $50,000. Although she learned some useful things about opioid use, Lewis said, the clearest message has been that she needs to protect herself better with extensive documentation and that "it's just not very safe for doctors to treat pain."