DrugBuyers.Com: Letter to DEA from ...Association... physicians...

ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, INC.
A VOICE FOR PRIVATE PHYSICIANS SINCE 1943
1601 N. Tucson Blvd. Suite 9
Tucson, AZ 85716-3450
Phone: (800) 635-1196
Hotline: (800) 419-4777

April 23, 2003

The Honorable John B. Brown III
Acting Administrator
Drug Enforcement Administration
Mailstop: AXS
2401 Jefferson Highway
Arlington, VA 22301

Dear Mr. Brown:

This letter is on behalf of all physicians who treat pain, especially
chronic pain; their patients who suffer from it; and several real physicians
whose lives are being destroyed by your agency. These physicians
courageously treat very difficult patients with controlled substances,
according to the best of their medical judgment and their understanding of
applicable law. Our organization, founded in 1943, defends the practice of
private and ethical medicine.

The DEA recently cancelled, at the last minute, a five-month commitment to
attend a conference on pain management sponsored by the Pima County Medical
Society. In the DEA¹s absence, physicians were advised to treat their
patients like criminal suspects. We were told to use methods such as
surveillance cameras, urine drug screens, frisking patients before they give
the specimen, and maintaining a chain of custody for the specimen. These
precautions were not talked about several years ago, but physicians fear
they will be held to these standards retroactively.

Physicians are trained to care for their patients, not police them. When we
become aware of illegality, we report it, though typically law enforcement
has no interest in investigating or apprehending the suspect. But after bad
publicity about someone overdosing on a painkiller, prosecutions of
physicians take the form of a witchhunt.

A single example of prosecutorial abuse is sufficient to destroy physicians¹
willingness to care for chronic pain patients. What sane person would risk
being sentenced to die in federal prison (the likely effect of the mandatory
minimum drug-kingpin 20-year sentence for a 55-year old physician) for
writing a prescription in good faith?

There is always the possibility for error in the practice of medicine. But
for pain control, an error or isolated bad judgment is being treated as a
federal crime entailing decades in prison. No mens rea is proven, and
sentences are unconscionable.

Here are just a few examples of the prosecutorial abuse:

Dr. Robert Weitzel of Utah was convicted of negligent homicide but then
acquitted in a new trial after the prosecutor was found to have concealed
exculpatory evidence. The jury needed only a few hours of deliberation to
find him not guilty. Nevertheless, he was sent to jail based on an
unrelated admission of a record-keeping violation.

Dr. Deborah Bordeaux of South Carolina was convicted under a ³drug kingpin²
statute carrying a mandatory minimum sentence of 20 years, after working a
mere two months in a locum tenems position treating chronic pain among other
ailments;

The late Dr. Benjamin Moore, who had worked briefly in the same clinic, pled
guilty, though convinced of his own innocence, and then committed suicide
rather than testify against others;

Dr. William Hurwitz of Virginia had his retirement account seized and faces
potential indictment, even though his pain practices were under the careful
supervision of the medical board; and

Dr. Jeri Hassman of Arizona, who had the largest pain practice in Tucson, is
being threatened with a 28-year prison term, apparently because a small
fraction of her patients used the prescriptions in unauthorized ways.

The policy of your agency was described by Asa Hutchinson, former DEA
Director, in an address to the American Pain Society on March 14, 2002, as
follows:

I'm here to tell you that we trust your judgment. You know your patients.
The DEA does not intend to play the role of doctor. Only a physician has the
information and knowledge necessary to decide what is appropriate for the
management of pain in a particular situation. The DEA is not here to dictate
that to you. We do not intend to restrict legitimate use of OxyContin or
other similar drugs. We will not prevent practitioners acting in the usual
course of their medical practice from prescribing OxyContin for patients
with legitimate medical needs. We never want to deny deserving patients
access to drugs that relieve suffering and improve the quality of life.

Mr. Hutchinson demanded that prescriptions be in the ³usual course of
medical practice² for ³legitimate medical needs.² But the physician who
prescribes more than the average in order to treat patients in pain has an
unusual practice. Any prescription may be used in an unauthorized,
illegitimate way. Or physicians may unwittingly prescribe for an actor hired
by the federal government to entrap them.

Screening out all patients with a tendency to addiction can be the
equivalent of sentencing them to life without prospect of effective pain
relief, without benefit of a law (which might not pass constitutional
muster) or a judicial proceeding.

Patients cannot expect to have adequate pain relief available when
physicians are afraid to prescribe it. To assure the availability of pain
treatment, major reforms are needed in DEA procedures.

1. A physician¹s lawful prescriptions should never be
second-guessed by law enforcement. No criminal investigations or proceedings
against a physician should ever be contemplated without expert physician
opinion that the target physician had a pattern of prescribing medications
without any reasonable medical rationale. The number of prescriptions
written and dosages are never in themselves a sufficient reason for criminal
investigation, as accepted clinical practice requires titrating dose for
effect, and judgment of effect is subjective.

2. Errors, poor judgment, and even incompetence are not criminal.
The proper enforcement mechanism is civil litigation or actions by licensing
boards. Moreover, administrative actions by the DEA must assure due process
with opportunity to know the charges with particularity and the ability to
cross-examine witnesses and otherwise present an adequate defense. Judgment
must be before an unbiased tribunal that does not profit from the verdict.

3. Federal agents should not be permitted to intimidate
vulnerable patients, or to knowingly make use of false testimony. Incentives
to testify must be made known to juries. All encounters with potential
witnesses must be videotaped with tapes made available to defendants and
juries. Violations should carry a heavy sanction employment. Accountability and oversight for abusive prosecutions is badly
needed.

4. Physicians who prescribe in good faith should not be
criminally liable for the actions of their patients in diverting or abusing
prescribed drugs.

Restoring physician trust will be difficult. Past wrongs must be righted,
and a process instituted for preventing future abuses. Otherwise, the only
recommendation that medical associations can make is that physicians refrain
from prescribing OxyContin or other preparations disfavored by the DEA, or
any narcotic in a dose higher than considered ³usual,² regardless of patient
need.

Because physicians who follow that recommendation might find themselves in
jeopardy of a malpractice action or even an action under an Elder Abuse
statute, not to mention violation of their professional code of ethics, many
will withdraw from any practice situations that place them in such a
dilemma.

For patients, what can we suggest other than contacting their congressmen,
reminding them of Drs. Weitzel, Bordeaux, Moore, Hurwitz, Hassman, and
others that may come to our attention?

Sincerely yours,

Jane M. Orient,M.D.,F.A.C.P.
Executive Director

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