Another doctor and pharmacist go down for administering opiate-based pain relief.

Note that both had spotless records, and that prosecutors concede that the patients to whom they prescribed the meds were legitimate. The two will now go to jail because (a) they prescribed what prosectors with no medical training deemed excessive amounts of opiates, and (b) the town in which the prescribed them has a problem with street use of OxyContin.

That, apparently, is enough to send them to jail. If they’re reflective of the larger Ventura community’s sentiment on this issue, the comments to the article are particularly depressing.

Oral arguments for Dr. Bernard Rottschaefer’s appeal are Friday.

The good news: Rottschaefer is represented by Eli Stutsman, the same lawyer who won the Oregon assisted suicide case before the Supreme Court (and who spoke at Cato’s painkiller conference).

The amusing component to this story is the continued attempts by U.S. Attorney Mary Beth Buchanan to justify the fact that her office either suborned perjury or exercised breathtaking ineptitude in the prosecution of Rottschaefer. After Rotschaefer’s prosecution, for example, Buchanan was giddily relaying to reporters the lurid details of the doctor’s alleged “drugs for sex” arrangements. Now that those allegations have been proven false by letters Buchanan’s own star witness wrote to her boyrfriend, Buchanan is insisting that the drugs for sex angle is irrrelevant, and Rottschaefer deserves conviction solely because an “expert witness” produced by the prosecution determined that Rottschaefer’s methods didn’t adequately safeguard against the possibility of diversion. For this, Buchanan wants to put the man in jail for what in all likelihood would be the rest of his life.

Buchanan’s most laughable line comes here, when attempting to explain why she won’t pursue perjury charges against her witness, whose letters explicitly conceded that she had lied under oath in exchange for leniency. Says Buchanan:

“When is the witness more credible — under oath in a federal trial, or trying to convince a boyfriend she wasn’t having sex outside their relationship?” Buchanan said.

That’s one way of putting it. Another might be, “When is the witness more credible — when she’s spilling her guts to a paramour, or when prosecutors have promised her that a certain type of ‘testimony’ will keep her ass out of jail?”

To-may-to. To-mah-to.

Another doctor down.

I don’t know the details of this particular case. But I would note that judging from my knowledge of similar cases, when a prosecutor says a doctor “was selling Oxy prescriptions for $75,” what that generally means is that the doctor charges $75 for an office visit. During the course of the visit, some pain patients may leave with an Oxy prescription. Of course, many others don’t. A high-cholesterol patient might leave with a Lipicor prescription. A patient with a rash might leave with a referal to a dermatologist. Some patients might leave with no prescription at all.

In other words, the $75 was for the office visit, not a quid pro quo for a script. But “selling Oxy prescriptions for $75 a pop” sounds a lot more nefarious, doesn’t it?

Martha Coakley, the district attorney for Middlesex County, Mass., responds to my letter to the editor of the Boston Globe:

IN A Feb. 12 letter (”Accidental addiction can be overstated”) Radley Balko of the Cato Institute took issue with my comment that we have a problem with addiction to prescription drugs in Massachusetts. In fact, the argument he makes — that the medical literature does not support my assertion — actually highlights part of the problem. The failure to recognize the extent to which the use of prescription medication represents a risk of addiction may well explain the phenomenon that we see on the streets every day.

The writer refers to research indicating that few, if any, users of prescription pain drugs are addicted. That research, however, refers to cancer patients, and does not appear to take into account, for example, those who suffer from injuries due to car accidents nor those with chronic back problems.

I do not pretend to be an expert in medical issues. However, in Middlesex police officers we work with and our prosecutors see a growing problem — one that I have specifically labeled a public health problem, not just a law-enforcement problem. There are too many people of all ages, but especially younger people, who abuse prescription drugs. Sometimes the drugs are prescribed for them by physicians. Sometimes they have been prescribed for a family member or purchased on the street. Sometimes these people overdose; sometimes it is fatal.

My experience says that it would be helpful, indeed critical, for a more open-minded approach than that suggested by Mr. Balko: Law enforcement should be educated by doctors, but doctors and pharmacists cannot ignore what we are seeing on the street. Long-term and short-term pain management should be between doctor and patient, but doctors must realize their level of responsibility involved in that management.

Note the typical arrogance we’ve seen from prosecutors on this issue. Never mind the research. She is certain there’s a problem. She cites no statistical evidence. Just her assertions. Trust me. I’m a prosecutor.

Well, no.

First, she’s wrong. I cited one study in my letter because, frankly, in a letter I didn’t have the space to cite the littany of medical research on this issue. Mrs. Coakley should know that medical research shows that so-called accidental addiction is nearly nonexistant in all patients taking high-dose opiate therapy under the watch of a physician, not just a cancer patient. I don’t know why she’d think that, on average, a chronic pain patient would react any differently than a cancer patient.

Second, it’s odd that a prosecutor who refuses to even read the medical literature, and who insists that, in any case, the peer-reviewed literature is wrong because of her own limited experience in Middlesex County would ask that I be more open-minded.

Third, Ron Libby effectively debunked the myth that there’s an epidemic of people overdosing on prescription OxyContin in his paper on the topic for Cato.

Fourth, the idea that there’s massive prescription drug abuse in this country is, like most statistics on drug use, massively inflated. College kids who are popping Adderall to help study for a test are included. If you’re spouse gives you a Percocet he/she was prescribed because you have a migraine, that’s an incidence of abuse. Likewise with a Valium. Buying prescription drugs over the Internet counts as an incidence of abuse.

Fifth, even if there is prescription drug abuse going on, you don’t punish the patients who need those drugs and the doctors who prescribe them just because some people happen to be abusing them. Having law enforcement looking over the shoulders of doctors does exactly that. If real addicts are using Oxy in place of heroin, the fault lies with the addicts, not with Oxy, not with the doctors who prescribe it in good faith, and certainly not with the legitimate patients who need it. Make Oxy difficult to obtain, and the addicts will switch to something else, perhaps go back to black market drugs. Pain patients don’t have that option.

Finally, it’s thinking like that on display in Coakley’s letter that’s contributing to the epidemic undertreatment of pain. She confuses addiction with physical dependence, and concludes that in her nonmedical, but carries-the-force-of-law opinioin, the two are the same, and should be eradicated by cops and prosecutors.

It’s this kind of attitude that leads to “opiaphobia,” and the wholesale dismissal of a class of drugs that could bring millions of people relief. It’s also this kind of thinking that gets people like Richardy Paey and Bernard Rottschaefer railroaded into prison.

Libby’s paper outlines a particularly heartbreaking example of opiophobia from Time magazine a few years ago: A doctor tells the reporter about a young boy who’s in the final stages of terminal cancer. He’s in agonizing pain. His father refuses to let the physician give the kid the morphine that would prevent him from spending his last days in pain. Why? He told the doctor, “I don’t want my son to die a drug addict.”

Another largely sympathetic editorial with another unfortunate mistatement of fact:

Martha Coakley, district attorney for Middlesex County, said she does not think that overzealous prosecution of prescription drug abuse is a problem in this state. Speaking of her own office, she said, ”We would stop short of micro-managing” pain treatment. But she said there is a problem of prescription drug users becoming addicted to substances like OxyContin. Coakley is right that prescription drug abuse is a problem, just as the use of methamphetamines, heroin, and cocaine is. But patients will suffer needlessly if prosecutors and the DEA do not fine- tune their investigations of suspected prescription abuse.

On the issue of overzealous prosecution not being an issue in the Bay State, I’ve spoken with at least one doctor in Massachusetts who’d beg to differ.

But that’s not my objection to the passage. My objection is to the notion that “there is a problem of prescription drug users becoming addicted to substances like OxyContin.” It’s a cannard. From a 1997 cover story in U.S. News and World Report (sorry, no link):

What is lacking is not the way to treat pain effectively but the will to do it. For a quarter of a century, pain specialists have been warning with increasing stridency that pain is undertreated in America. But a wide array of social forces continue to thwart efforts to improve treatment. Narcotics are the most powerful painkillers available, but doctors are afraid to prescribe them out of fear they will be prosecuted by overzealous law enforcers, or that they will turn their patients into addicts . . . “We are pharmacological Calvinists,” says Dr. Steven Hyman, director of the National Institute of Mental Health.

The authors go on to state:

But at the heart of the debate is confusion about what constitutes addiction and what is simply physical dependence.

Most people who take morphine for more than a few days become physically dependent, suffering temporary withdrawal symptoms–nausea, muscle cramps, chills–if they stop taking it abruptly, without tapering the dose. But few exhibit the classic signs of addiction: a compulsive craving for the drug’s euphoric or calming effects, and continued abuse of the drug even when to do so is obviously self-destructive. In three studies involving nearly 25,000 cancer patients, [researcher Russell] Portenoy found that only even became addicted to the narcotics they were taking . . . “If we called this drug by another name, if morphine didn’t have a stigma, we wouldn’t be fighting about it,” says [researcher Kathleen] Foley.

If you check the footnotes to Ron Libby’s Cato paper on the painkiller wars, you’ll find several other studies negating the link between opiate painkillers and addiction, including:

1. J. Porter and H. Jick, “Addiction Rare in Patients Treated with Narcotics,” New England Journal of Medicine 302, no. 2 (1980): p. 123.

2. J. L. Medina, S. Diamond, “Drug Dependency in Patients with Chronic Headaches,” Headache 17, no. 1 (1977): 12-14. This survey of patients treated at a large headache center during 11 months could only identify three problem cases (two codeine abusers and one propoxyphene abuser) among the 2,369 patients who had access to opioid analgesics.

3. D. E. Moulin et al., “Randomized Trial of Oral Morphine for Chronic Noncancer Pain,” Lancet 347 (1996): 143-47. This study used a cross-over design to compare the opioid against a placebo (benztropine) to ensure blinding of the therapy. The study evaluated a broad range of outcomes related to subjective effects and function. The results demonstrated a significant reduction in pain during morphine therapy, without change in physical or psychological functioning, and without evidence of psychological dependence or aberrant drug-related behavior.

Now, I don’t expect a Massachusetts D.A. to be up on all the latest medical literature (or even three-decades-old medical literature, for that matter). But the fact that this particular D.A., like many just like her, isn’t familiar with it is a pretty compelling argument for keeping law enforcement officials out of the business of dictating medical treatment, wouldn’t you say?

I really wish I could just repost Tierney’s entire column today, but I suspect the Times wouldn’t look fondly on me if I did. If you can get a copy of the NY Times today, you should. It’s worth the dollar. Tierney’s column is a much-needed expose on the case of Dr. Bernard Rottschaefer, a case we’ve been covering on this site for several months.

This case is an absolute outrage. U.S. Attorney Mary Beth Buchanan should be ashamed of the way she has treated this man, and for the way she continues to push for him to go to prison, despite overwhelming evidence that her drug war fervor led her to make a devastating mistake. It’s pretty well known now that Buchanan harbors political ambitions in Pennsylvania. In a just world, the way she and her office have behaved in persecuting this man would ground those ambitions before she kisses her first baby.

Tierney’s conclusion:

It’s especially unfair for the D.E.A. to go after doctors who treat pain, because they’re dealing with symptoms that are notoriously difficult to measure. Doctors can do tests, but they also have to make judgments based on what patients tell them — and the Rottschaefer case ought to show the federal drug warriors how tricky those judgments can be.

If you believe Riggle’s letters, as I do, there are two possible conclusions about the behavior of the D.E.A. agents and prosecutors. At worst, some of them illegally encouraged a witness to commit perjury. At best, they were duped.

The agents and prosecutors are supposed to be experts at detecting liars, and they had far better investigative tools available to them than Rottschaefer did. Yet they apparently weren’t careful enough or shrewd enough to see through Riggle’s story. If they don’t deserve prison time for that mistake, neither does her doctor.

Because I’ve been absorbed in a couple of other projects, I’ve neglected the pain issue of late.

But I am quoted this morning in a Washington Post article on the issue. The article looks at how Oregon v. Gonzalez might effect the prescription pain issue.

Given that I’m the lone voice of pessimism in the piece, I’d like to elaborate a bit.

The Oregon case was wonderful, but it was also a pretty narrow victory. I understand why the lawyers for Oregon took the tact they did — a challenge grounded primariy in Commerce Clause jurisprudence probably wouldn’t have found five votes on this court. Given the subject matter, it probably wouldn’t have found more than two. Instead, the Oregon decision dealt only with the Controlled Substances Act, and not with the overall constitutionality of federal meddling in state and local medical policy.

Which means that if it so desired, Congress could rather easily pass a law above and beyond the CSA giving the DEA the explicit authority to regulate assisted suicide. That would pretty much wipe out the Oregon decision altogether. For that reason, I’m pretty pessimistic about the Supreme Court providing any relief on the painkiller issue. The Oregon case dealt with drugs that aren’t generally used outside of medicine. When it comes to drugs with medical value that are used recreationally, as in Raich, justices Kennedy and Stevens jumped ship, and found them to be within the scope of the CSA. Given all the hysteria about the street use of OxyContin, my guess is that should such a case make it to the Supreme Court, the decision’s likely to be similar to that in Raich, with perhaps an even stronger majority, given O’Connor’s retirement.

I know a few pain activists are looking to challenge the constitutionality of the CSA itself. And I wish them luck. But the Supreme Court has repeatedly (and wrongly) already upheld the law.

So I still think the best chance for reform lies with (gulp!) Congress. We need to get Congress to call off the DEA’s dogs. A good first step would be to move the regulation of pain meds from DOJ to HHS, which would make the regulation of the drugs an administrative effort, not a criminal one. HHS is also charged with making good health policy, not with justifying its budget with gaudy arrest numbers.

Of course, a cynic might point to the medical marijuana issue, and note that as most of the public sees the value in letting sick people find relief wherever they may, Congress continues to blindly march the other way, toughening drug laws behind doofuses like Mark Souder, who insist that MS, cancer, and AIDS patients who use the stuff are just props for George Soros and the legalization movement (which may well be true — but so what?).

But the number of people who will eventually need pain medication is far greater than the number of people who might benefit from medical marijuana. So it’s more likely that this issue will sooner or later hit close to home with more than a few influential policymakers (there are several good examples of drug warrior conservatives who’ve come around on medical marijuana after, unfortunately, learning of the drug’s benefits — either firsthand, or through members of their families).

And unlike marijuana, OxyContin and other painkillers with oxycodone were created for the sole purpose of medical treatment. In other words, marijuana is a recreational drug that has some medical uses. Oxy is a medical drug that has recreational uses. The distinction is important.

That’s not to say a Supreme Court ruling limiting the scope of the CSA to exclude prescription pain medicine wouldn’t be wonderful. Nor is it to say that there’s a whole lot of hope of a sensible policy emerging from Congress, either. I just think there’s more hope in the latter.

In the meantime, the best thing to do is to continue getting the word out about the absurdity of continuing to arrest pain doctors in the midst of an epidemic of undertreatment of pain. Congress may be a decade or more behind public opinion on drug issues, but public opinion is still important.

After I’ve finished the projects I’m working on, I’ll have a rundown of the new cases of doctors who’ve been arrested over the last few months.

Also, Siobhan Reynolds of the Pain Relief Network reports that as of now, 60 Minutes is planning to run its profile of Richard Paey next Sunday night.

The New York Times publishes a lengthy article on how the DEA’s war on painkillers affects pain patients.

There’s an interesting governor’s race shaping up in Arkansas, particularly for those of us opposed to the drug war and, more pertinently, for those of who who’ve followed the issue of prescription pain medication.

Mike Beebe is running for the Democrat nomination. Beebe is the state’s attorney general at the moment, and was one of the signatories to the National Associaton of Attorneys General’s letter to the DEA, chiding the agency for it’s handling of the opioid issue.

Should Beebe get the nomination, he’ll likely fase Republican Asa Hutchinson. Hutchinson is the former administrator of the DEA, a hardened drug warrior, and was at the helm when the DEA implemented its anti-opioid camapign. It was under Hutchison’s leadership that the DEA began its tactic of arresting doctors for prescribing what drug cops thought were too many painkillers. In the process, the vicious campaign left millions of chronic pain patients in the lurch.

The Arkansas media has already taken note of the candidates’ opposition positions on the issue. Which means the election might be a rare opportunity for Drug War critics to have an impact, and possibly help deliver defeat to a longtime foe. Of course, i doubt Beebe would have much use for the “pro-drug” tab. But Hutchison’s pretty hardcore. Not much on the whole “civil liberties and personal freedom” thing.

Be nice to see him lose.

Moving away from Cory Maye for just a moment….

Regular readers of this site are by now familiar with the plight of Richard Paey, a paraplegic who was sentenced to 25 years in a Florida prison. His crime was to procure prescription painkillers to alleviate the agony he was in from a car accident, a botched back surgery, and his multiple sclerosis. Prosecutors conceded that Paey never attempted to sell or distribute the drugs. They were for his own use. Paey was in need of high-dose opioid therapy. Thanks to draconian Florida drug laws and hysteria over OxyContin, Paey found it impossible to get the relief he needed at the doses he needed.

I’ve written about Paey here. The New York TImes’ John Tierney wrote about him here. And Reason’s Jacob Sullum wrote about him here. 60 Minutes’ Morley Safer interviewed Paey about a month ago for a yet-to-be-aired segment covering his story. Richard’s wife also addressed the Cato Institute at a forum we put on a few months ago. Read a transcript of her speech here.

A few weeks ago, I got a sweet and heartbreaking card from Richard. It came with a an elaborately detailed drawing of a bird escaping from iron chains, emblazoned with the words “In Faith All Things Are Possible.” Paey has taken up drawing in prison. Which I suppose is good, given that a parpalegic in prison can’t do much else.

If you’re looking to do something nice for someone this holiday season, I’d like to encourage you to drop Richard a line (you might drop Jeb Bush a line about Richard Paey while you’re at it). It probably make for a nice holiday pick-me-up for the guy to know that there are people outside those walls who support him.

Details on how to write to Richard are here. Be sure you follow the prison guidelines, found here.

U.S. Attorney Mary Beth Buchanan still refuses to file charges against an admitted perjurer whose testimony put a doctor with no criminal record in prison. But she does have time to prosecute two harmless older men on federal charges of falsely displaying the wrong millitary regalia.

Both have actually served in the military. But they seem to have exaggerated their service by attending two American Legion events while wearing Marine Corps insignia for ranks they hadn’t attained. One insists he earned the rank, but the paperwork was long ago eaten up by military bureacracy.

I can see the need to protect the integrity of those who have earned the right to wear their rank and awards. But six months in prison seems a bit excessive. As does an FBI investigation, federal prosecution, and the obligatory press release.

One wonders: In the midst of the war on terror, why would a U.S. Attorney with limited time and resources send investigators to an American Legion outpost to hunt down two old guys for a crime that takes no victims, and that no one can remember actually having been prosecuted before?

It could have something to do with the fact that Buchanan has often been described as a “rising star” in Republican politics. A former high-ranking DOJ official, she’s now angling for a federal judicial appointment, or perhaps a shot at political office. So she’s raising quite the public profile. She’s been on PBS goes on PBS to defend the PATRIOT Act. She’s also warming the cockles of conservative hearts by blazing trails to bring down pornographers (note in that last link that the sentence Buchanan sought for obscenity charges — 50 years — is two-and-a-half times the maximum sentence for rape), consistent with boss Alberto Gonzalez’s declaration that Internet porn would be a “top priority” of his tenure. She once said that “enforcing morality” is one of her chief responsibilities as a U.S. Attorney. Buchanan also took on the Rottschaefer Oxycontin case just as the hullabaloo over the opiate painkillers was page-one news.

So how does all of this apply to those old coots in fake Marine get-ups? A couple of months ago, a gaggle of Congressmen got all tweaked up about the movie The Wedding Crashers, in which Owen Wilson and Vince Vaughn impersonate military men in order to impress women. Congressman John Salazar was so offended, he now has a bill pending that would toughen penalties and give prosecutors more power to take down military impersonators.

Meanwhile, as Buchanan prosecutes men for exaggerating military achievement, she’s perfectly content to let Dr. Rottschaefer go to prison on testimony from her star prosecution witness that not only was demonstrably false, but that Buchanan herself encouraged with promises of leniency. Seems like a double standard on the ol’ “bearing false witness” commandment, doesn’t it?

Inconsistent application of principle. Selective morality. Using her office to boost her public profile.

Looks to me like Buchanan will do very well in politics.

Four more doctors go down in upstate New York. Here’s a convincing letter to the editor in support of one of them.

This time, at least, a local medical society is raising some concerns about the investigation. Which raises a question: Where is the American Medical Association on these cases? Isn’t the AMA supposed to represent doctors? Why hasn’t the AMA raised holy hell about these arrests?

Perhaps the AMA should spend a bit more time representing doctors and patients and less time telling the country’s parents how to raise their kids.

Back to an old theme…

A doctor accused in a 2003 prescription-fraud case was arrested again Wednesday on manslaughter charges stemming from the deaths of three of his patients.

Dr. Sarfraz Mirza turned himself in at the Brevard County Detention Center in Sharpes and posted $50,000 bond.

Formal charges against the 63-year-old include three counts of manslaughter and one count each of trafficking morphine and oxycodone.

Mirza’s attorney, Greg Eisenmenger, on Wednesday said the accusations are “unfounded and ridiculous.”

[...]

isenmenger said the state’s theory appears to be that doctors should be responsible for patients who die from failing to follow medical instructions.

“That’s a frightening concept to me,” he said. “Based on review of discovery, there was no basis for any manslaughter charges.”

Melbourne Police Detective John Pasko, who helped work the case, said that’s not the situation.

Medical experts “determined within reasonable medical certainty that Dr. Mirza’s prescribing practices were outside the standard of care and resulted in the deaths of the three patients,” Pasko said in an e-mailed statement.

Just about any medication can prove lethal if used improperly. We’ll have to wait for details on this case. But I can’t envision a scenario in which an opiate pain relief prescription could possibly justify a manslaughter charge. See here for more.

The Washington Post notes that prescription pain medication is especially difficult to obtain in low income areas. Reprter Marc Kaufman questions the pharmaceutical industry at length about the problem, but doesn’t think to ask anyone from the DEA to offer an explanation.

First, pain meds are getting difficult to find just about everywhere. But there are several explanation as to why they’d be even more rare in low-income and minority areas:

1) Conventional wisdom says illicit drug use is more common in low-income areas. That means doctors serving those areas are likely to give potential pain patients extra scrutiny to be sure they aren’t selling the stuff the minute they step out of the office, thus covering their own hides from a possible investigation.

2) Drug cops are likely to focus more directly on low-income and minority neighborhoods, given that same conventional wisdom. More drug cops snooping about means neighborhood doctors are going to be less likely to prescribe Schedule II drugs, to cover their own hides from a possible investigation.

3) Doctors in low-income areas have a high proportion of patients on Medicaid. It’s easier to monitor the prescribing habits of doctors who see Medicaid patients than those who don’t. And if a doctor does get hit with charges, he can get hit for both drug distribution and Medicaid fraud. Consequently, doctors with a high proportion of Medicaid patients are going to be less likely to prescribe Schedule II drugs in order to cover their own hides from a possible investigation.

Notice a pattern here?

There also seems to be a twinge of blame on the pharmaceutical industry in this story. I’m not sure why. Manufacturers of opiate painkillers, after all, have been accused by the government, the media, and anti-pharma critics of saturating the market with too many painkillers, particularly in areas of (mis)reported widespread OxyContin abuse. Now they get heat for not putting enough Oxy-like drugs in low-income, high-crime areas. I have my own problems with big Pharma. But in this case, they really can’t win.

I just learned that this past April (on my thirtieth birthday, no less!) Rep. Charlie Norwood kindly introduced this article of mine into the Congressional Record.

Unfortunately, he did it in the course of pushing for a national database to monitor the use of prescription drugs, which Rep. Norwood says would help cut down on “doctor shopping.”

I couldn’t disagree more. A national databse would make it easier for the DEA and hardened drug warriors to accumulate evidence against well-meaning doctors, particulary those doctors who engage in the kind of high-dose opioid therapy that the DEA insists is unreasonable, despite the fact that the people determining said policy aren’t doctors, much less pain specialists.

As for “doctor shopping,” it certainly does go on. But the vast majority of it takes place among legitimate pain patients who can’t find a doctor who will prescripe meds in the doses they need for adequate relief. That’s thanks in large part to the DEA and state cops’ overly aggressive diversion policing.

A database will make it easier to monitor doctors. That will make them less likely to prescribe. That will make pain patients more likely to go from doctor to doctor to get what they need. The databse will then nab them for “doctor shopping.” It’s an awful idea on nearly every level.

And I haven’t even the privacy converns, here. What medication I’m taking is, frankly, none of the government’s damned business.

The database bill — which has since been signed into law by President Bush — won’t help pain patients, and will only make the DEA’s war on doctors worse.

I regret that Rep. Norwood invoked my op-ed in support of it.

Here’s a Boston Herald piece related to yesterday’s painkiller conference at Cato.

Here’s an update on the Melbourne, Florida case:

One of two Brevard County doctors arrested on drug charges said he was set up by police.

The two were charged with trafficking and with unlawful distribution of controlled substances after local, state and federal agents raided three local medical clinics Wednesday, WESH 2 News reported.

Dr. Nima Heshmati does not deny prescribing painkillers and muscle relaxers to four undercover officers.

Police say the prescriptions were illegal, but the doctor said they were legitimate.

[...]

Police said they wrote prescriptions without properly checking their patients to see if they really needed the painkillers.

“It was quite easy. They supplied no medical documentation whatsoever,” said Detective John Pasko, of the Melbourne Police Department.

[...]

Heshmati said he does not ask all his patients for full medical histories nor does he order tests for things such as muscle sprains, which don’t show up on X-rays or MRIs.

He accused police of setting him up and going on a rampage against doctors who prescribe painkillers. Heshmati said he does not prescribe the strongest, most addictive painkillers, such as Oxycontin [sic], and that he prescribed only a few pills — 15 or 20 — for the undercover officers who came into his office with fake injuries.

He said doctors should be insulated from responsibility for patients who lie to get drugs and then abuse them.

“If a patient wants to abuse the medication and do that, then a physician should not be held liable,” he said.

Think about what’s happening, here. Cops are walking into clinics disguised as pain patients. Once inside, they make a play for the doctor’s compassion, duping him into writing a script for pain medication. Get him several times, and they move in for the arrest. They can then seize everything he owns. In some states, they can sell his stuff and split the bounty among the various investigating agencies before he ever goes to trial.

Think for a moment what this kind of policy does to the doctor-patient relationship. Think about how willing other doctors will be to prescribe similar pain meds to patients after reading stories like these in the newspaper. Think about whether it’s wise to have drug cops dictating what is and isn’t acceptable medical treatment.

Over the last few months, we’ve been following the case of Bernard Rottschaefer, the Pennsylvania physician convicted of trading sex for OxyContin prescriptions. The prosecution’s star witness was a prostitute named Jennifer Riggle, who testified she’d given Rottschaefer oral sex several times in exchange for opiate painkillers. Under cross-examination, Rottschaefer’s attorney asked another woman making the same claims whether or not the doctor was circumcised. She couldn’t answer. For reasons I can’t fathom, Rottschaefer was still convicted.

As for Riggle, after the trial her boyfriend — who had been in prison throughout the trial — released a series of letters she’d written to him in which she admitted to lying under oath. She told her boyfriend in the letters that she’d made up the stories about oral sex in exchange for leniency from the U.S. Attorney’s office on her own drug charges. The letters were stamped and dated, the handwriting was determined to be authentically Riggle’s, and the boyfriend has signed sworn affidavits. The release of those letters should have at least won Rottschaefer a new trial, if not a judge-ordered acquittal. Neither happened.

Not only that, but the U.S. Attorney in charge of the case — a law-and-order Republican and “rising star” named Mary Beth Buchanan — has since steadfastly refused to press perjury charges against Riggle. It’s a particularly glaring omission of duty, given that Buchanan has agressively pursued a slate of Democratic officials on perjury charges.

In fact, not only has Buchanan’s office not prosecuted Riggle, they’re rewarding her. In may 2004, the U.S. Attorney’s office requested leniency for Riggle in her own drug charges, writing:

“The defendant was fully cooperative and appeared to be truthful and candid. The defendant’s cooperation significantly strengthened the government’s case against Dr. Bernard Rottschaefer.”

Of course, backing down from the plea would amount to an admission of wrongful prosecution on Buchanan’s part. Better to let an innocent man go to jail and the lying dope dealer who put him there go free than admit to a mistaken, overly aggressive, politically damaging prosecution.

This case is an outrage.

On this month’s edition of CatoAudio, Reason’s Jacob Sullum and I discuss the DEA’s campaign against opiate painkillers.

If you’re wondering, yes, CatoAudio is an audio magazine published by the Cato Institute. It is every bit as dorky as it sounds. But give it a listen. It’s also pretty damned interesting.

This month’s issue also features Floyd Abrams, David Boaz, and Washington Post columnist Anne Applebaum.

Melbourne, Florida:

Police arrested Dr. Nima Heshmati and Dr. David Wang during simultaneous morning raids at walk-in medical clinics in Palm Bay, Cocoa and Melbourne, then closed all three facilities. Both men were charged with trafficking in hydrocodone and unlawful distribution of controlled substances.

[...]

During a year-long-plus investigation, undercover agents posing as patients paid $60 per clinical visit, claiming they suffered from general pain symptoms, Pasko said. Both doctors gave the agents prescriptions for hydrocodone, Xanax and Soma after brief examinations — though the agents provided no medical documentation, Pasko said.

“It was quite easy. They supplied no medical documentation whatsoever, and the medical examinations took a matter of minutes,” Pasko said.

“These physicians were prescribing drugs for monetary gain.”

Sixy bucks per patient isn’t exactly drug cartel money, is it? Note that in almost all of these cases, doctors are never accused of getting kickbacks from the sales of the drugs they prescribe.

And as I’ve explained on this site before, many pain doctors — particularly those at clinics like these — simply don’t have time to give the kinds of examinations the DEA feels is necessary. One big reason is that do to the arrest of other pain specialists, these doctors are overwhelmed with refugee patients.

Neither of these doctors had faced any previous disciplinary action. And this case adds a fun twist:

Heshmati is the son of Dr. Heidar Heshmati, director of the county health department.

Neither Pasko nor Florida Department of Health spokeswoman Thometta Cozart said there are apparent connections between the actions of Nima Heshmati and his father.

Heidar Heshmati said he was stunned by his son’s arrest. As of late afternoon Wednesday, he had not yet spoken to Nima.

“I don’t know what’s going on. I’m shocked. I know Nima is not that type of person,” he said. “I know that.”

Given the way prior cases like these have unraveled, there’s good reason to believe him.