Pain Med News FYI

[Guest guest]

October 20, 2003

Los Angeles Times/Front Page Painful Rift Unnerves Doctors

The clash over the use of opioids to treat patients intensifies. Where

law enforcement officials see a drug pusher, many in medicine see a

pioneer.

By Ralph Vartabedian, Times Staff Writer

Federal prosecutors launched one of their highest-profile and most

controversial assaults in the war against prescription drug abuse

recently when they indicted Dr. E. Hurwitz, a 57-year-old

Virginia pain treatment specialist.

Hurwitz, a Stanford University medical graduate who also has a law

degree, was depicted as a " street-corner crack dealer " by federal

officials during a court hearing last month. He remains in a Virginia

jail, unable to post bail set at $2 million.

Although medical boards have suspended Hurwitz's license three times in

the last decade

and federal officials have depicted him as corrupt, the case has evoked

unexpected support from medical groups.

Hurwitz is regarded as a pioneer in pain treatment by many doctors,

academicians and medical groups, who have decried his prosecution. The

case, along with other prominent criminal prosecutions, is putting a

chill on legitimate pain treatment by doctors who fear prosecution, they

say.

The Hurwitz case has exposed a deepening rift between law enforcement

and the medical community over the use of opioids in modern pain

treatment. These powerful drugs, including OxyContin, Vicodin and

Dilaudid, are based on natural or synthetic opium.

Over the last decade, a revolution in medical thinking has discarded the

idea that people should just cope with profound long-term pain, and

instead holds that they should be helped with high doses of opioids.

Without such treatment, the victims of serious disease and injury are

often bedridden, unemployable and depressed, and in some cases suicidal,

doctors say.

At the same time, abuse of these drugs has soared. An estimated 6.4

million Americans illegally used opium-based painkillers in 2001, more

than the 4.1 million who used cocaine, according to the Substance Abuse

and Mental Health Services Administration. OxyContin, introduced seven

years ago and hailed as a breakthrough drug, has become the most abused

pain pill in the nation.

Illegal use of opioids has been going up 27% annually, according to

surveys. Among the most recent high-profile cases is that of talk show

host Rush Limbaugh, who recently admitted he is a pain-pill addict.

Despite such abuse, national health organizations argue that serious

pain is undertreated and have criticized the Justice Department and

local law enforcement agencies for causing widespread fear among doctors

that they can not prescribe opioid painkillers, particularly OxyContin,

without risking prosecution.

" There is no question that doctors now fear being held liable if they

prescribe painkillers, " said Dr. Fleming, a practicing Louisiana

doctor and president of the 94,000-member American Academy of Family

Physicians. " We have let our members know what is going on. There is a

heightened awareness by the Drug Enforcement Administration. "

A broad range of experts, including pain specialists, directors of

hospice facilities, academicians and the pharmaceutical industry, have

come to the same conclusion. Even law enforcement officials agree that

legitimate doctors are spooked, although officers have sought to assure

them that they have nothing to worry about.

" What happens typically is that 99% of the physicians, who are good,

decent people, can become paranoid, " said Burke, head of a drug

enforcement task force in Ohio and vice president of the National Assn.

of Drug Diversion Investigators. " This is a very touchy issue. We do not

want to impact legitimate pain patients or their physicians. "

Prosecutors and investigators say doctors violate the law when they

prescribe pain pills to patients who they know — or reasonably should

know — are selling or abusing the drugs. The most flagrant cases involve

doctors who spend little time with patients, write them identical

pain-pill prescriptions and ignore repeated signs that they are

attracting addicts to their office. A patient overdose death, not

evidence on its own of illegal prescribing of pain pills, often attracts

close scrutiny.

The medical use of marijuana, which received a favorable ruling last

week from the Supreme Court, is another issue on which federal

prosecutors are clashing with doctors. But with official estimates that

75 million Americans suffer from persistent pain, opioids have a vastly

more important and accepted role in medicine.

Trying to Curb Abuse

The DEA, which regulates controlled drugs such as opioids, denies that

it has ramped up prosecutions or adopted tougher investigation tactics,

but rather says it is trying to hold the line on the abuse of pain

medications, which has caused serious social and economic problems.

Pat Good, a senior official at the DEA's office of diversion control,

said the agency was focusing on doctors who ran " prescription mills " or

whose entire practices involved pain medications diverted to illegal

uses. And allegations that the agency is putting a chill on pain

treatment are not new, she said.

" We have heard that same issue for years, " Good said. " Obviously, there

is an increase in abuse and an increase in our reaction to it. We have

gone out of our way to reassure people that legitimate practice is not

the issue. "

This month, the DEA doubled its fees on doctors, pharmacies and drug

makers for

controlled-substance registrations, an administrative action that will

raise an additional $60 million annually for the DEA's program to fight

the diversion of controlled drugs. The funds will provide for a modest

increase in DEA enforcement efforts, Good said.

Good said nearly 1 million doctors held DEA controlled-substance

registrations allowing them to prescribe opiates, whereas the agency had

just 400 investigators. In 2002, 68 doctors were arrested for crimes

involving controlled substances; in 2001 there were 76 arrests. The

annual number of prosecutions has ranged from 50 to 80 for years, Good

said.

Critics say the official statistics vastly understate the magnitude and

growth of the prosecution efforts, because 95% of cases are

plea-bargained or handled administratively by state medical boards in

collaboration with the DEA and local law enforcement groups.

Even doctors who adhere carefully to rules can run afoul of law

enforcement agencies, according to Brushwood, an expert on opioid

legal issues and a professor of pharmacology at the University of

Florida.

" Something is terribly wrong with the way some criminal justice

authorities have begun to enforce the law against physicians and

pharmacists who prescribe and dispense high-dose opioids to treat

chronic pain, " he said. " The necessary balance has tipped drastically in

the direction of ruthless drug control. "

Brushwood, who was long regarded as a moderate voice on such legal

issues, pointed to the

prosecution of Dr. Fisher. A Harvard Medical School graduate who

ran a clinic for low-income residents in Shasta County, Fisher was

charged in 1999 with murdering five of his patients, along with billing

fraud and drug dealing.

On the first day of his trial in Superior Court, the charges were

dismissed, though lesser charges are still pending. Fisher says he is

financially ruined and now lives with his father. " This is a situation

that defies common sense, " he said.

Hallinan, Fisher's San Francisco attorney, said honest doctors

all over the country were being targeted by the DEA when their patients

violated the law without the doctor's knowledge. Agents are using the

same tactics against honest doctors that are used against narcotics

dealers, he said.

" There isn't any doubt that these prosecutions are increasing under the

Bush administration, " Hallinan said. " It is like busting a car dealer

because somebody runs off the road and kills somebody. "

Rather than tip off doctors that their patients may be dealing drugs on

the street, the DEA strikes deals with the patients to testify against

the doctors, according to doctors and defense attorneys. Doctors are

vulnerable because they have no physical test to determine whether a

patient is in real pain, and they have no control over what happens

after patients leave a clinic, they add.

Jeri Hassman, a Tucson doctor indicted in March, said she was never

informed of any concerns about her practice over the last 17 years. She

was charged after an undercover sting that used a three-time convicted

felon, along with two undercover DEA agents, said Hassman's attorney

Bates .

But Burke, the narcotics investigator in Ohio, said most good police

departments did tip off doctors that patients were diverting drugs

before they launched investigations.

" Physicians are not targeted because of one patient but rather an

overwhelming pattern of activity, " he said. " There is nothing illegal

about being duped by your patient. Everybody gets duped. The doctors we

target are well-aware they have bad patients. "

Of course, not every local department adheres to such policies. Good,

the DEA official, said, " Some locals have behaved differently than the

DEA would. "

Still, even in states with progressive medical regulations, like

Minnesota, doctors are growing increasingly worried about prosecution,

said Dr. E. Elliott, director of St. 's Hospice in Duluth.

The prescription volume for doctors who specialize in pain treatment —

especially those with hundreds of pain patients who travel from around

the country — can create the appearance of a major illegal drug

distribution operation.

Steps doctors take to protect themselves include keeping careful medical

records, documenting that opioids are improving patients' conditions and

requiring patients to sign contracts.

Modern pain treatment can seem extreme to the uninitiated. The goal is

to provide as much opioid medication as needed to negate pain — in some

cases, dozens of pills a day. Although patients may become physically

dependent and will go through withdrawal if the drugs are suddenly

stopped, they are not addicted in the traditional sense.

A patient taking opioids for serious pain reaches a tolerance level

within a few weeks; there is no sensation of euphoria, pharmacologists

and doctors say, even though the drugs still cancel the pain.

Henry Farkas, an emergency room and hospice doctor in Elkton, Md., said

he has grown more

cautious about prescribing opioids as he has heard about prosecutions

around the country.

" I worry about this more than I have in the past, " Farkas said. " These

prosecutions are of good doctors who sound like they were doing the

right thing. But the government is pursuing them and charging them with

being drug kingpins. "

Medical boards and civil juries have ruled against doctors who have

failed to adequately treat pain — particularly at the end of life, when

people sometimes go through agonizing ordeals. As a result, doctors are

often reluctant to say they will not treat pain.

Dr. Myers, who operates five clinics for low-income people in the

Mississippi Delta region, said he too had grown more reluctant about

prescribing painkillers. Myers, a Baptist minister and regional advocate

for pain treatment, says that before he writes a prescription for

OxyContin or other opioids, he requires a patient to see a pain

management specialist. " But in some cases, even if the pain management

specialist recommends them, I still won't write them because I am

afraid of the DEA and the medical board shutting me down. "

High Doses Encouraged

It was high-dosage treatments that Hurwitz helped to pioneer, according

to Brushwood and many others.

Hurwitz seems like an unlikely champion for the cause of pain treatment,

given his history of run-ins with authority. Before his arrest late last

month, Hurwitz had his medical license revoked once in Washington, D.C.,

and twice in Virginia. His supporters blame the suspensions on the

medical establishment's efforts to block his campaign for use of high

doses of opioids to treat serious pain.

After his arrest, the Assn. of American Physicians and Surgeons — along

with the American Pain Institute, the Pain Relief Network and the

National Foundation for the Treatment of Pain — condemned the

prosecution at a news conference.

" It seems to us that the DEA has shifted its focus from street thugs to

doctors, because doctors are easier targets, " said Serkes, a

policy executive at the association of physicians and surgeons. The

group now flatly advises its doctors not to prescribe opioids.

The American Medical Assn. has not weighed in on the Hurwitz case, but

last July fired a warning shot by posting on its Web site a statement

that it " wants no doctor harassment over pain medication " and pledging

to take the case to President Bush and Atty. Gen. Ashcroft. Good,

the DEA official, said that the AMA has not contacted the agency since

making that statement.

The charges against Hurwitz depict him as a corrupt and ruthless

profiteer. His arrest is part of Operation Cotton Candy, in which

federal prosecutors have obtained convictions of more than 15 Hurwitz

patients who were selling pain pills from him on the street.

The indictment alleges that one of Hurwitz's patients died of a morphine

overdose within 33 hours of her first visit to his office. Another

patient was a pregnant woman whose baby was born with an addiction, the

indictment charged. Assistant U.S. Attys. Gene Rossi and Mark Lytle said

in a bail hearing that they had tape-recorded evidence that a patient

told Hurwitz he was dealing painkillers on the street and the doctor

still wrote a prescription.

Hurwitz's attorney Hundley said prosecutors have falsified a

number of claims, such as asserting Hurwitz earned $2 million in illegal

profits. The $2 million represented Hurwitz' gross revenues over a

four-year period and included funds needed to cover staff salaries and

clinic expenses, he said.

And Hurwitz's supporters remain unshaken.

" Hurwitz is a wonderful doctor, completely dedicated to his patients, "

said T. Libby, a professor at the University of North Florida who

is writing a book about the friction between law enforcement and

doctors. " If it were not safe for Hurwitz to prescribe meds, who would

it be safe for? "