Big Hearing at the Tenth Circuit Today on Painkiller Issue

Wednesday, May 6th, 2009

A couple of weeks ago over at Hit & Run, Jacob Sullum blogged about a case in Kansas where the government seems to be targeting not only Stephen Schneider, a physician specializing in pain treatment and his wife Linda, but also Siobhan Reynolds, who heads up the pain patient advocacy group the Pain Relief Network.

Reynolds has become a sort of shoestring-budgeted PR machine for doctors under investigation whom she believes are getting railroaded. She educates local media on pain treatment, including the sometimes very high doses of medication needed to treat patients who have built up a tolerance to opiods. Her efforts in the Schneider case have resulted in some refreshingly balanced coverage. And that apparently has Assistant U.S. Attorney Tanya Treadway steaming.

As Sullum noted, last year Treadway tried to impose a gag order on Reynolds. She was denied. Several of Schneider’s patients who had spoken out on his behalf say shortly after, federal agents forced their way into their homes, in one case confiscating a letter Schneider had written from prison.

So Treadway is now calling Reynolds the “subject” of a grand jury investigation into possible obstruction of justice. Treadway has asked Reynolds to turn over all of her correspondence with pain patients, attorneys, the Schneiders, and just about everyone else in any way associated with the case. Reynolds is fighting the subpoena, and is now represented by the ACLU.

Last year, Treadway also attempted to bar the Schneiders from obtaining court-appointed counsel, citing their considerable wealth. The problem is that everything the Schneiders own is subject to forfeiture, meaning any attorney who agreed to take their case would do so knowing there would be a pretty good chance he’d never get paid. The government essentially argued that the accused couple should have no counsel in court (unless they could find someone to take the case pro bono), and be barred by law from having anyone defend them in public. When all of that failed, they asked for a change in venue, claiming that patients and Reynolds speaking out for the Schneiders had tainted the jury pool.

Treadway’s efforts are particularly egregious given that it has become pretty standard practice for U.S. attorneys to issue press releases and sometimes even call press conferences to announce when a physician has been indicted for over-prescribing painkillers—as they did in the Schneider case. The government can work the media and jury pool all it likes. But when a suspect gets an advocate who knows how to work the media, they first try to shut her up with a gag order, then intimidate her with a grand jury investigation.

But Treadway’s aggressiveness may well come back to bite her. Her office originally tried to link the Schneiders’ practice to 56 alleged patient overdose deaths. U.S. District Judge Monti Belot balked, and threw out all of the deaths but four. He then sternly warned Treadway not to appeal his decision. Belot also instructed the government not to use inflammatory descriptions like “pill mill” in front of the jury, another common tactic in these cases.

Treadway appealed anyway, delaying the Schneiders’ trial by months. The interesting thing is that her appeal allowed the defense to file a cross-appeal that will challenge not only Treadway’s attempt to link the Schneiders to the four remaining deaths, but also the government’s entire methodology of using “red flags” and questionable links to patient deaths to prosecute pain doctors. Reynolds, who has seen a lot of these cases, says it’s the first case she can recall where a federal appeals court will hear arguments on whether the government’s system of identifying what it says are drug diverting physicians is scientifically sound enough to be admitted into evidence.

One red flag the government uses, for example, is to look for physicians who simply prescribe a raw number of pills that investigators say is too high, a practice pain advocates say has made doctors afraid of engaging in the high-dose opiate therapy course of chronic pain treatment that’s been so effective. Other red flags include doctors who spend what investigators say is too little time with patients to make an accurate diagnosis, a problem pain advocates say has become increasingly common not because more doctors are selling scripts to addicts and drug dealers, but because the few doctors who do still treat chronic pain are overwhelmed with patients whose former doctors have been arrested, stripped of their licenses, or run out of business by investigations.

The Schneiders’ brief also argues that the government’s practice of linking deaths to opioids is problematic because such deaths often include patients who merely had high concentrations of opiates in their systems and died unexpectedly. Several of the patients who died of heart attacks, for example, weren’t checked for signs of heart disease. The heart attack plus a high concentration of opiods in their system was enough for the government to link the opiods to the heart attack.

The government’s argument that the Schneiders were causing a disproportionately high number of deaths also rests on comparing the number of clinic patients who died to the population at large, instead of to the number of patients undergoing treatment at a clinic not suspected of any wrongdoing. It isn’t all that difficult to see how patients undergoing treatment for chronic pain might have a higher mortality rate than the general population.

The federal government has been using these arguments to prosecute doctors for years, but to this point, there has never been a formal hearing to determine if there’s any actual science behind them. Pain specialists are skeptical. The general consensus is that red flags are fine for identifying potentially problematic doctors by, say, a medical board, but they’re simply not enough to find a doctor guilty of criminal wrongdoing. Pain specialist and pain organizations have also long decried the arbitrariness with which the red flags and ambiguous links to patient deaths are applied. Today, the U.S. Tenth Circuit Court of Appeals will hear their complaints.

There would be some poetic justice here if Treadway’s aggressive tactics in the Schneider case were to result not only in a fatal blow to her own cause, but in the Tenth Circuit becoming the first federal appeals court to call into question the very foundation of how the government builds its case against pain physicians.

My prior coverage of the pain issue here.

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66 Responses to “Big Hearing at the Tenth Circuit Today on Painkiller Issue”

  1. #1 |  Rick H. | 

    Eric,
    My point was that Rick H’s assertion that a person’s choice to get high doesn’t affect anyone else is sophomoric.

    And what I actually said was:
    Under your formulation, self-medication is not a right. Neither is pleasure, even at the expense of no other person.

    I never asserted recreational drug use “doesn’t affect anyone else.” That’s a red herring anyway. We’re talking about drug prohibition by government force, not metaphysical notions of interrelatedness.

    Unless one chooses to live the rest of his life as a hermit in some unpopulated area, his use of mind-altering substances will have an effect on his family, his friends, and his community.

    I don’t think the DEA allows any exceptions for hermits.

  2. #2 |  Dave Krueger | 

    The sum total of all things people do that can affect adversely someone else is only minutely increased by adding legalization of drugs to that list.

    Furthermore, the philosophy of criminalizing something that will, under some circumstances, be misused by someone resulting in injury to another person is a bottomless pit by which government can justify anything it wants. There is no “judgment call” that determines where the line is drawn. The line constantly moves and it moves only in the direction of increased government intrusion into people’s lives.

    Finally, those injurious things that people do that affect other people, whether under the influence of drugs or not, are already covered by laws that come into play when an injury actually occurs.

    Criminalizing an activity that causes no one harm simply because it puts a person in a position to cause someone harm serves no purpose other than to make criminals out of non-criminals and give legislators something to list on their resume during the next election.

  3. #3 |  ACLU Backs Reynolds’ Motion to Quash | 

    […] See also: Fed Prosecutor Tries to Silence Drug Policy Activist, Again – Sullum; 2009-04-17 Big Hearing in 10th Circuit on Painkiller Issue – Balko; 2009-05-06 Grand Jury Subpoenas Pain Relief Activist – Drug War Chronicle; […]

  4. #4 |  Adina Cappell | 

    This whole ordeal is so sickening. As a medical student, I feel that I shouldn’t have to choose between worrying about my license and ensuring that my patients aren’t in agony.

    To me, it more dangerous and disturbing to undertreat pain than to overtreat it. I will provide my patients with the care that they need, according to sound medical judgment. This is more important to me than worrying about the vicious actions of some heartless bureaucrat.

  5. #5 |  Lloyd Flack | 

    It looks as if some drug warriors react in a hostile manner to any suggestion that they are not actually good people. They are on a crusade and anyone who opposes a crusade must be evil. And especially, anyone who claims that their zealotry is making them evil, why they must be in league with the devil.

    Treadway’s actions look like those of someone whose inflated self-image has been challenged.

  6. #6 |  Eric Seymour | 

    MDGuy wrote:

    It is sophmoric to say that a person’s choice to get high doesn’t affect anyone else. It is also sophmoric to say that it will always 100% negatively affect others

    Well, then, it’s a good thing I didn’t claim that it does. :)

    For the last time, I didn’t come here to start an argument over whether marijuana or any other drug should be legal or not. I only mentioned my anti-legalization stance on recreational drugs as a way to emphasize the fact that I agree with Radley that prosecuting pain doctors in the absence of clear evidence of wrongdoing is reprehensible.

    I’m not going to continue arguing with you, because it’s not achieving anything other than distracting attention from the issue we agree on.

  7. #7 |  James | 

    it’s not achieving anything other than distracting attention from the issue we agree on

    Exactly. Why you chose to bring up the non-relevant point in the first place is something you need to deal with. The discussion is about physicians who prescribe legally approved pain medication to treat patients with chronic pain and prosecutors, with no medical training, interceding in this process with their own non-medical judgments.

    Exactly why you chose to bring in the topic of schedule I drugs (that have no medical benefit) use in recreational activities has caused what it was intended to do. Get everyone off topic.

  8. #8 |  Nic | 

    Wow, thanks for covering this. I was a pain patient for years, I was prescribed (by DEA standards) high doses of opiates, however because of a single incident, I lost my doctor: because I came up positive on the pee tests that they make pain patients take every month. Occasionally, but very rarely, I smoked pot for the pain as well – but only when I was in so much pain that the prescribed dose of opiates was not enough, and only when I knew that I would not be tested for another few weeks, I was always okay, but apparently this one time, it was detected. I was put in a desperate situation because of these policies. I’m on disability because of illness, I’m no criminal, I’m not a drug dealer, and I’m not a drug seeker (not that it’s wrong to do drugs or seek out drugs), but my situation is simple: I’m just sick. But now because I have no doctor, and can’t get a doctor, I’m forced to buy my medicine off the streets at a much higher price. I was never a criminal to begin with, I’ve never had any run in with the law, but because of the DEA, the government and these policies they have forced me to become a criminal in order for be to obtain medication that simply allows me to get out of bed in the morning. It’s so f-ing unfair…I honestly hope every single one of these jerks prosecuting these doctors and sick patients, has either themselves or one of their own family members fall sick and in immense pain and then can’t get a doctor or the medicine they need because, low and behold, they arrested all the doctors and the ones who are left are too scared to prescribe anything. I’ve literally had doctors say to me, “I understand that you need this, but, I’m sorry, I can’t prescribe it because I don’t want to be harassed by the DEA.”

    And it’s total BS this crap about people being prescribed “too much” pain medicine. Well, that’s the way it f***ing works…patients REQUIRE more and more medication because there’s this whole thing called TOLERANCE. With opiates, you build up a tolerance and need more and more to treat the pain effectively…there’s no such thing as “too much”, there’s only the “effective dose”, and it’s on a case by case basis. The dose that I was taking would kill anyone who was “opiate naive”, but for me, it was a safe effective dose. And yes, unlike the propaganda says, opiates are one of the safest medications around so long as they are taken correctly. But the gov’t won’t ever admit to the fact that opiates (even diacetylmorphine) is both SAFE and EFFECTIVE, probably THE MOST safe and effective medication in existence for treating pain. But the gov’t apparently wants to keep doctors from treating people EFFECTIVELY. They would rather have the patient take an ineffective dose that the DEA deems to be an “appropriate amount” and have the patient suffer in pain all day and night, rather than allow the patient to take an EFFECTIVE amount so that maybe they could have a chance at living a decent life. This is such BS what they do to these doctors and the thousands of patients that rely on them. I wish something could be done…but what? Bunch of monsters these drug prohibitionists are…and that’s really the root of all this: drug hysteria and prohibition.

  9. #9 |  Nic | 

    One more thing, Radley, can you update us when you hear more about the results of this case? thx.

  10. #10 |  Lloyd Flack | 

    Tradway is accusing Reynolds of having a “syncophantic and parasitic relationship” with the Scheiders. Interesting the way she puts things. It looks as if she is using terminology with adiction overtones to describe people who oppose her. It looks as if she cannot or more likely will not allow herself to understand how decent people might oppose her.

    This appears to be about her self image as a champion of justice. If decent people oppose her then she might not be what she sees herself as. And of course that is not possible, is it?

  11. #11 |  MDGuy | 

    Ok Mr. Seymore, last argument I promise…I just can’t see how you don’t realize that the issue of recreational drugs IS related to this post. The whole reason they’re going after these doctors and doctors who prescribe pain medication in general is because of our zero tolerence, puritanical oppositition to people using drugs recreationally. In the minds of the drug warriors, the grim specter of someone, somewhere getting high for FUN (can you imagine?) off these pain medications justifies their overreaching control over what should be medical decisions and their persecution of the doctors in this case.

  12. #12 |  Mark Kellen | 

    As a practicing pain physician, I can tell you that I think of quitting every week. I realize that every time I write a prescription, I and my family are at risk of complete financial destruction at best, or at worst, of prison if some fed prosecutor gets a burr in their butt.

    We need to legalize these drugs, prohibition leads to gang violence and black markets. It gives the government more power and money, and we lose our civil liberties and freedoms more and more every day.

    Below is a link for more on the abuse of physicians by government agents.

    http://www.aapsonline.org/painman/pm-ppba.htm

  13. #13 |  Christine Blasbichler | 

    We will soon have to ask the federal government if we can take an aspirin. I sat through the trial of a dear friend, Dr. Robert Ignasiak, in Pensacola, FL in November 2008. He is now serving what amounts to life in prison. I was astounded (and disgusted) at the prosecutors for putting witnesses on the stand to testify against this doctor, when they admitted that they lied and doctor shopped in order to get prescriptions. They got a big hug from the prosecutors and a promise of financial gain (restitution) if the doctor was convicted. One of the jurors attended church with a DEA agent (on the case)- and the judge ruled against excusing him! I no longer have any faith in the criminal justice system. I certainly have no respect for some of these prosecutors. Shameful!

  14. #14 |  Ian MacLeod | 

    I wrote a lot on the PRN for a couple of years. I’ve been a chronic pain patient (CPP) for 7 years now, My wife was dying of COPD, and thanks to Bush era funding cuts, there was just me to care for her. Right about the time she became bed-ridden, the VA decided to panic and hand me over to a fake “pain management specialist” who was no such thing. They lied to me, blackmailed me, and one thing they led me to believe was that this was a “consult.” When I got there, he told me he was “taking over” my pain care and my PCP could no longer prescribe for the pain from 6 back operations and massive nerve damage. The first thing he did was destroy the regimen that had allowed me to function for 8 years, crippling me. He treated me like a criminal, ignored my home situation and kept trying to force me to drive 50 miles for just a piss test, when I told I couldn’t leave my wife alone. There was a choking danger, plus dementia (she fell and broke her shoulder once when I HAD to go the store. I finally had to leave the VA. We had decided on a double suicide. I couldn’t find pain care, my weight at 6’2″ was down 143 pounds and we were living in an increasingly toxic house I could no longer keep clean. I found a doctor who was willing to give me maybe 1/3 of my former regimen – not enough, but I stayed with her and did my best until she passed away in my arms, and she stayed in the home she’d grown up in until the end, as she had wished.

    Now the local VISN20, the guy in charge of 5 states of VA hospitals, has decided that no pain patient may have more than 160 mg of morphine equivalent (and those “equivalencies” are valueless when applied to different people, and meaningless in chronic pain anyway) per day. That is going to cripple the majority of the pain patients they’re treating. Even the W.H.O. says, “The correct dose is the one that works.” And the VA’s former Directive on CP treatment agreed with current science: opiates have no severe upper limit. You titrate to pain and function. Sheer numbers of pills or milligrams per dose mean nothing except in terms of the patient function and quality of life.

    I can guarantee you there will be more suicides because of this. And something else you never hear: there are an estimated 75 MILLION CPPs in the US who are under-treated or entirely UN-treated. As pain treatment gets worse, as Baby Boomers age, as more vets come home and THEIR pain goes untreated, that number will skyrocket, and the shortage of doctors will become impossible. Most of us are, as Dr. Fisher said, “Medical train wrecks.” We have conditions secondary to the pain, which is now classed as a disease process in and of itself. In short, we’re dying out here, slowly, in poverty and agony. A woman I know has been sentenced to death by her insurance company which no longer chooses to pay for her pain meds. She has a disease the destroys cartilage, and if her pain runs out of control, her BP shoots up and she’s vulnerable to tracheal collapse, clots and so heart attacks, strokes and pulmonary embolism. Or she can bleed out through damaged vessel walls or have a stroke that way. (The disease is relapsing polychondritis). We’re profitable to the DEA and DOJ, you see, when we’re suffering. And the private prison industry. We’re great material for justifying the Drug War, and Drug War funding (60 billion per year and climbing), plus the DEA gets great media coverage, and they can keep funds from civil forfeitures. And we’re only a bunch druggie cripples just a breath away from being street people. Who cares?

    Not Treadway; that’s for damned sure!

    Ian MacLeod

  15. #15 |  Ian MacLeod | 

    For what it’s worth, I’ve seen prosecutors get like this before. It becomes personal to them. As far as they’re concerned they’re trying to put criminals behind bars, not just trying to find the evidence to prove that people who are presumed innocent are actually guilty. So keeping them in jail however it can be done is only what they deserve, convicted or not, and and even falsifying evidence, if it can be gotten away with, is just fine too. After all, if she’s prosecuting them, they MUST be criminals. Right? She’s trying to protect the public, and not incidentally further her own career. So to people with this mind set, “win at all costs” comes to make sense. That’s IF she’s not just another rabid careerist who could care less how many innocent people she destroys. Both types, however, are no longer concerned with “justice” however, and need to be gotten rid of!

    Ian

  16. #16 |  The Alarmingly Secretive Persecution of Siobhan Reynolds | The Agitator | 

    […] I posted here last year on Assistant U.S. Attorney Tonya Treadway’s vendetta against pain patient advocate Siobhan Reynolds. Reynolds’ transgression was to publicly question Treadway’s prosecution of Kansas pain specialist Steven Schneider and his wife. […]