A Double Standard for People in Pain?

A Double Standard for People in Pain?
By William Fisher
t r u t h o u t | Perspective

Tuesday 23 May 2006

Contrast these two cases:

High profile right-wing radio talk show host Rush Limbaugh is charged with "doctor shopping" for prescription medication for chronic back pain, but reaches a settlement with the Florida State Attorney, which his attorney says will be dismissed in 18 months if Limbaugh complies with court guidelines. As a primary condition of the dismissal, Limbaugh must continue to seek treatment only from the doctor he has seen for the past 2.5 years.

In the same state, wheelchair-bound Richard Paey, a victim of multiple sclerosis, is charged with more or less the same crime - "doctor-shopping" to obtain prescriptions to ease unbearable pain - is serving a mandatory minimum sentence of 25 years in prison, where he is on a morphine pump that administers more pain-killing medication than he was accused of taking before he was sent to jail.

In the opinion of a man who has every reason to know, the two cases reveal a scary double standard being applied to people who suffer from chronic pain - and the doctors who treat them.

The man is Dr. Michael Jackson, one of hundreds of Board-certified pain management specialists arrested, charged and jailed by federal and state authorities for violating the Controlled Substances Act, designed to limit the dispensing of illegal prescription drugs by doctors and their use by patients. Two weeks from now, the South Carolina pain management physician will surrender at the Talladega, Alabama, prison to begin serving a 2.5-year sentence for drug trafficking, racketeering, and money laundering.

Dr. Jackson believes the contrast between his treatment and Limbaugh's underlines "a widespread double standard - one for the 'haves' and another for the 'have-nots.'"

"Not only do celebrities have access to the best lawyers, but they utilize their status in society, as I would have, if I were a 'somebody,'" Dr. Jackson contends.

He told us, "The 'haves' include a long list of individuals, in addition to Limbaugh - Senator Edward M. Kennedy's son, Congressman Patrick Kennedy, Miami Dolphins' football star Ricky Williams, former baseball great Darryl Strawberry, Florida Governor Jeb Bush's daughter, Noelle, former Pittsburgh Steelers football quarterback Joe Gilliam, and a multitude of other athletes, movie stars and family members of the well-to-do."

He adds, "As for the 'have-nots,' there is only one group to mention - the poor. With few exceptions, they're the ones that fill the jails."

"And the 'haves' who have gone to jail only did so because they violated their probations; otherwise, they would be in rehab," Jackson said. He said these included Strawberry, Downey, Gilliam and Noelle Bush.

"In order to get illicit street drugs, you have to break the law. All these celebrities did so, yet they were given a choice of jail versus rehab. They made the prudent choice but blew it anyway," Dr. Jackson said, adding, "Addiction is a tough taskmaster."

Limbaugh's attorney was famed defense lawyer Roy Black of Miami. Dr. Jackson was represented by a court-appointed public defender - he could not afford to hire an attorney because revocation of his DEA registration meant he could not practice and thus had no income. Limbaugh was also helped by the American Civil Liberties Union (ACLU), an organization frequently a target of Limbaugh's on-air attacks.

When investigators in Florida seized Mr. Limbaugh's medical records for its probe of whether the radio commentator illegally purchased thousands of prescription painkillers, the ACLU cited violations of the broadcaster's Constitutional right to privacy. The ACLU insists that defending the privacy of Limbaugh's medical records is consistent with its mission to protect the sanctity of the Bill of Rights.

Limbaugh's lawyers succeeded in getting his medical records sealed. He checked himself into voluntary drug rehabilitation for five weeks last year after press reports surfaced that his former housekeeper acted as his middleman in a scheme to buy painkillers for him over the years.

Over the past several years, the federal Drug Enforcement Agency (DEA), cooperating with state and local law enforcement authorities, has been conducting an aggressive campaign against pain management physicians and their patients. The DEA is part of the US Department of Justice. Its primary target is a prescription painkiller called Oxycontin, a drug in the opioid category, which the DEA says is being over-prescribed. It claims that prescriptions for this medication frequently end up being illegally sold on the street by drug dealers.

The DEA-State campaign has resulted in the widespread arrest and jailing of both doctors and their patients - many for long sentences. The DEA defends the campaign as an important part of the "war on drugs," but it has been widely criticized by State attorneys general, professional medical associations, and pain management advocacy groups.

Dr. Jackson's case was part of a prosecution known as "The Myrtle Beach Eight." The eight physicians were all associated with a pain clinic in Myrtle Beach, South Carolina. The accused also included Dr. Michael Woodward, the owner of the clinic, the Comprehensive Care and Pain Management Center.

According to Dr. Jackson, "Dr. Woodward was coerced into plea bargaining against the other physicians including myself. He perjured himself by implying that there was a conspiracy to distribute opioids illegally. As a result of this conspiracy charge, a motive to commit a crime does not have to be proved."

Jackson was charged in June 2001 with manslaughter, over-prescribing of opioids, prescribing opioids without a legitimate medical reason, and prescribing the drugs to patients with whom he had no legitimate doctor-patient relationship.

The first step in his prosecution was revocation of his DEA registration, effectively putting an end to his medical practice - and his income.

He was forced to use his house as collateral to raise the $25,000 bond that has kept him out of jail for the past five years while his appeals moved forward.

He was found guilty after a jury trial in Federal Court in Florence, South Carolina, between January 31 and February 10, 2002, and sentenced to 25 years in prison. The verdict was upheld on appeal to Fourth Circuit Court of Appeals, but the 25-year sentence was reduced to 2.5 years when the prosecution dropped the manslaughter charge when it was revealed that the patients who overdosed and died from multiple drug abuse were not his patients. Dr. Jackson appealed to the US Supreme Court, but the high court declined to review the case.

Dr. Jackson claims the DEA often charges physicians with more serious crimes such as manslaughter so they will have an excuse to revoke their DEA registration.

Other physicians associated with the "Myrtle Beach Eight" have also been prosecuted. Dr. Deborah Bordeaux received a sentence of eight years and one month for being included in an alleged conspiracy to prescribe medications such as Oxycontin. Her sentence was based on working for only 57 days at the pain clinic. Drs. Deborah Sutherland and Thomas Devlin received two years each. Dr. Benjamin Moore, who pleaded guilty, committed suicide prior to sentencing. And Dr. Ricardo Alerre, who is 74 years old, was sentenced to 19 years and seven months.

In response to a plea for a reduced sentence based on his age, US District Judge Weston Houck, shackled by mandatory minimum sentencing guidelines, said the law doesn't allow it: "I'm convinced in my mind that Dr. Alerre is a good person, and you'll never see him in jail again, but I'm not going to break the law."

"I believe and I hope that this case has sent a clear message to the medical community that they need to be sure the controlled substances they prescribe are medically necessary," said Assistant US Attorney Bill Day. "If doctors have a doubt whether they could get in trouble, this case should answer that."

One of the DEA'S few Congressional critics is libertarian Republican Representative Ron Paul of Texas. Says Paul:

"Faced with the failure of the war on drugs to eliminate drug cartels and kingpins, prosecutors and police have turned their attention to pain management doctors, using federal statutes designed for the prosecution of drug dealers to prosecute physicians for prescribing pain medicine.

"Many of the cases brought against physicians are rooted in the federal Drug Enforcement Administration's failure to consider current medical standards regarding the use of opioids, including OxyContin, in formulating policy. Opioids are the pharmaceuticals considered most effective in relieving chronic pain. Federal law classifies most opioids as Schedule II drugs, the same classification given to cocaine and heroin, despite a growing body of opinion among the medical community that opioids should not be classified with these substances."

The DEA and its state and local associates have been equally tough on both doctors and patients.

According to Rep. Paul: "Unfortunately, patients often must consume very large amounts of opioids to obtain long-term relief. Some prescriptions may be for hundreds of pills and last only a month. A prescription this large may appear suspicious. But according to many pain management specialists, it is medically necessary in many cases to prescribe a large number of pills to effectively treat chronic pain. However, zealous prosecutors show no interest in learning the basic facts of pain management."

Physicians' organizations - and the attorneys general of a majority of US states - say that one of the worst consequences of the DEA'scampaign against Oxycontin is that doctors are being cowed into giving up the practice of pain management - precisely at a time when science is discovering more effective methods of palliative care. The doctors charge that DEA agents are not physicians and are not trained to make medical judgments.

Says Dr. Jackson: "The war on drugs is now a war on doctors. When we talk about the federal war on drugs, most people envision urban street gangs or South American drug cartels. The evolving development of the drug war is not a gangster or a junkie, it's your neighborhood physician according to the DEA and the Department of Justice. Faced with the obvious failure of the 'war on drugs,' the federal agencies have focused on an easier target - doctors; especially pain specialists, whose only crime is prescribing perfectly legal pain medications."

"By creating an environment that regards all powerful pain medications as suspect, the DEA has forced countless patients to live painful and possibly bedridden lives. Children, the elderly, and cancer-afflicted patients are routinely denied adequate pain relief from fearful doctors who are concerned about being arrested for prescribing medically necessary doses of powerful pain medications. It's one thing to support a far-away drug campaign in Afghanistan or Colombia, but it's quite unnerving to witness a loved one suffering severe pain that could be treated. It's shameful that the relentless DEA and DOJ treat physicians like common drug dealers and their patients like street junkies. Doctors are not stupid ... they will not continue practicing pain management indefinitely if the federal government continues to investigate, harass, intimidate, and imprison them.

"The real victims of the new campaign are not only doctors, but their patients as well. Those who support the 'war on drugs' may well change their views if one day they find themselves experiencing severe, intractable chronic pain stemming from an accident or pathological disease process. Congress and the many professional pain associations should become proactive and rein in over-zealous DEA agents and federal prosecutors and put an end to the harassment of legitimate physicians who are acting in good faith when prescribing pain relief medications. Doctors should not be persecuted for using their best medical knowledge, nor should they be prosecuted for the illegal actions of some of their patients."

In a final desperate move, Dr. Jackson has reached out to a namesake and fellow African-American - Rev. Jesse Jackson - for help. In a letter to Rev. Jackson, Dr. Jackson wrote, "I am outraged that the DEA and DOJ can get away with trumped-up charges against innocent physicians at will. Our profession makes us easy targets, especially pain specialists like myself, who prescribe various medications, one of which are opioids to patients suffering from severe, intractable chronic pain. Increasingly physicians, disproportionately minorities, are unjustly being held responsible for the illegal acts of a few patients who sell their medications."

But it's unlikely that even Rev. Jackson will be able to reverse the apparent Congressional indifference to this issue. In an election year - or any other year - being seen as opposing the "war on drugs" can be damaging to one's political health.

President Bush is in charge of the Department of Justice and the DEA. He alone has the authority to reign in the Oxycops. But with so few "successes" to crow about, should we really expect him to risk damaging what's left of his own political health?

When pigs fly!

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Go to The World According to Bill Fisher for more.