Portraying Doctors as Drug Dealers
[Trash Journalism and the Case of Dr. Martinez]

By Maia Szalavitz
http://www.doctordeluca.com/Library/WOD/PortrayingDocsAsDealers05.htm

Is this reporting or propaganda? This story in Cleveland Scene is a classic example of how misunderstanding of the nature of addiction and misreading of the law leads to misleading news stories and the support of misguided criminal prosecutions:

On Pins and Needles - Josh Mound, Cleveland Scene, 2005-12-07

Writer Josh Mound reports that Dr. Jorge Martinez gave pain patients painful "nerve block" injections and then prescribed painkillers. According to Mound, federal prosecutors claim Martinez was a drug dealer who "turned [his patients] into addicts," through this practice. While the reporter acknowledges that "patients should take some responsibility for their own choices," he says that the sheer number of claims that Martinez made people into addicts suggest that there is truth to them.

But this is absurd: addiction is defined as a compulsive use of a substance despite negative consequences by the most widely accepted definition, that of the American Psychiatric Association. No one can "make" someone else do this. One can certainly induce physical dependence on opioids (which means abrupt cessation will produce flu-like withdrawal symptoms), but one cannot compel someone else to compulsively desire and seek out more of a drug, despite negative results from doing so.

That requires repeated personal choices no matter how many people claim otherwise. And, it occurs only in a minority of people exposed to opioids medically - without a prior history of addiction, roughly one percent.

Mound fails to mention, in fact, that some 90 percent of all prescription drug misusers, according to federal statistics, have used cocaine and psychedelics. This means they are not drug-naïve pain patients - they are pre-existing heavy drug users who seek out doctors to get drugs. This is why the manufacturer of OxyContin, Purdue, which has been sued hundreds of times for allegedly addicting people, has never lost a case.

Mound himself opens his story with the case of an addict who heard from other drug users that Martinez was an easy target for scams to get drugs and who then sought him out. This is no innocent victim "turned into an addict" by an evil doctor. But Mound uses the case to portray Martinez as the bad guy.

He notes that a worker in Martinez' office was busted selling faked prescriptions - and while he acknowledges that she may receive a reduced prison term for testifying against the doctor, he uses her story mainly to further demonize the physician. He reports that the doctor continued to prescribe to the man who bought the forged prescriptions.

Mound alleges that this is because Martinez was greedy - but doesn't note that it could also be because he thought that the man was suffering from legitimate pain. Mound doesn't seem to get that being an addict doesn't preclude having legitimate pain and requiring medical care.

Mound repeatedly portrays Martinez as paranoid and money-hungry - and says that the nerve block injections he gave were painful, expensive and unnecessary. But what he misses here is that Martinez is caught between a rock and a hard place. If he simply prescribes opioids based on patients' descriptions of their pain, he is being "loose with his prescription pad," and not trying alternatives before giving potentially addictive drugs, according to the feds. If he gives nerve block injections (which do not involve opioids), he's making legitimate patients endure painful shots so that he can turn them into addicts. How can he win?

Perhaps Martinez gave these injections precisely in order to attempt to ward off addicts, who might not want to endure such treatment if they were simply faking their conditions? This is not an admirable practice - but it certainly reflects the current atmosphere of fear produced by precisely these kinds of prosecutions.

What Mound also doesn't seem to understand is that if Martinez is giving painful and unnecessary treatments, this is considered medical malpractice and not a criminal act. Just because the prosecutors are conflating Martinez' alleged poor medical treatment with his alleged drug dealing, doesn't mean that journalists have to do so as well.

Mound does note that there are "many" patients who have organized to support Martinez and who say he was a good and compassionate doctor. But he gives this group less than 200 words to state their case in a nearly 4,000 word article - and uses one of the five paragraphs he gives them to quote one as calling some of the other patients "pillheads."

While the government didn't pay this paper to print its propaganda as it has been known to do elsewhere these days, with this kind of reporting, it might as well have. Martinez may well be a terrible doctor. He might even be a drug dealer. But this article has convicted him of malpractice and drug dealing without adequately exploring the other side of the story and in a way that confuses criminal and civil law.

Challenging The

CONTROLLED SUBSTANCE ACT

---

April 24, 2006 -
We, at the Pain Relief Network have a long-overdue action ready to be taken against the United States Department of Justice. We very much want to enjoin them from prosecuting physicians under the Controlled Substances Act (CSA).

BACKGROUND

The prevailing wisdom is that the only way to challenge the CSA is to take little bites at it. In the case of pain medicine, we have the opportunity to call the entire statutory framework into question. Raich, for instance, is arguing to make medical marijuana an exception to the CSA, in certain rare situations where the plaintiffs' extreme illness outweigh whatever interest the Federal government can claim in protecting the public from marijuana. While we wish the plaintiffs the best of luck with their claim, when compared with ours, it is peripheral.

WHAT'S DIFFERENT ABOUT OUR DRUGS

In our case, we have the unique opportunity to protect the lawful practice of medicine from a USDOJ that does not recognize any limits on its authority.

The opportunity, also, is to open a real discussion that needs to begin in this country about how this law has interfered with the ethical practice of medicine and of course, how it has destroyed the legal protections of criminal defendants as well.

HERE'S HOW

Because the DOJ is going after doctors merely for doing medicine in a way that the DOJ attorneys disagree with (an MO they admit to in writing, by the way) the government's experts are making up the law on a case-by-case basis. This is arbitrary and by definition in violation of the rights of physicians to a) practice in a climate of lawfulness and 2) know ahead of time what sort of conduct is criminal so that they can make sure they don't do it.

HOW OUR ISSUE COULD WAKE AMERICA UP

Now, since a crime is whatever the government witness says it is, the only way a doctor can protect himself from criminal liability is to not prescribe. Since this is going on across the US, even to the extent that patients with morphine pumps in their backs are being dropped by doctors, the USDOJ has created a climate of scarcity (by terror) which, on its face, violates the patient's right to due process because people with untreated pain are losing jobs, businesses, their lives, custody of their children, their marriages and the list goes on. Moreover they and their families are living in constant fear.

The scarcity has also created a nightmarish situation where people in pain are coerced into signing away their medical privacy to the DEA and agreeing to visit only one pharmacy, one doctor, agreeing also not to visit emergency rooms for pain relief, even agreeing never to ask for an increase in their dose of medication ever again, etc. The terrified doctors have become agents of the law, and patients are having The War On Drugs' zero tolerance imposed on them and them alone. No other class of people, except prisoners, are treated in this manner, and by their doctors!

Medical board guidelines have been promulgated which require doctors to try every other possible treatment modality before they try opioids, when opioids are the only truly safe and effective medicines out there. So here we have the enactment of special cop-medicine that you get from your doctors if you are unlucky enough to be in ongoing pain- and this special approach to your care is required by the criminal law-anyone for Jewish medicine, or black people medicine? How about gay medicine?

In addition, people in pain can be thrown off their meds at any time because an angry spouse or acquaintance need only to call the doctor and allege criminality, and the doctor will drop the patient in order to protect himself. What if you are in pain and you do develop a problem with addiction? Tell your doctor? Better not. Because now, he has evidence of your ?illegitimacy? as a patient.

So the CSA has created a suspect class based on a disability (50 to 70 million people are said to be in disabling pain-a third of them in out-of-control pain) and because of the utterly arbitrary manner in which it is enforced, the law has in fact required doctors to treat their patients as presumptive criminals. The testimony from the witchtrials reveals that that the doctors are being convicted of being insufficiently suspicious of their patients-a requirement found nowhere in the statute or the rules that purport to enforce the CSA. This imperative contravenes the Geneva Conventions which insists that doctors not be compelled to carry out tasks that are not compatible with their humanitarian mission...nor be compelled to refrain from acts required by medical ethics."*

THE KICKER

As it turns out, the "legality" of Schedule 2s is more properly regarded as pseudo-legality. These drugs are only legal when a law enforcement officer doesn't call their legality into question. No wonder Richard Nixon was so gun-ho on a drug war as a way to gain and hold political advantage. Schedule 2's, when viewed from a political pov, are really little "gottcha" bombs. If a DEA agent alleges that a doctor has been prescribing in a 'criminal manner' HIPPA is irrelevant and the agents can paw through the records to their heart's content. Any time a law enforcement officer finds you with Scheduled drugs it is incumbent upon you to show that you possess them lawfully. In other words, your presumption of innocence has been removed and replaced by a legal fiction-that you are in lawful possession as long as you came by the medicines in a transaction authorized by the United States Attorney General- your ?lawful possession? of your own medicine is actually at the sufferance of the Department of Justice.

Thankfully, there is a way to get to this.

The states regulate medicine and the states Attorneys Generals, in two letters (1st NAAG Letter pdf), have called the DEA out for its outrageous behavior and have stated that they believe that the DEA is interfering with the practice of medicine.

The ACLU of Mass. has taken a strong interest and would join us in taking this position. Harvey Silverglate in Boston is our ally over there.

We are working with a highly qualified attorney in Virginia, John P. Flannery, a former Federal prosecutor and Special Counsel to both houses of the Judiciary Committees. He has been working on several of our appeals and has become apprised of the government's vulnerabilities.

We are also working with several top medical experts who can bring to the briefing and to the court, the medical evidence that was the basis upon which medicine had originally gone forward and had begun treating pain as though it were an illness like any other.

Opioids, it turns out, are not nearly as addictive as we had previously believed. In fact, amongst the population of those in pain who take it everyday, the incidence of addiction is negligible. Moreover, the science can dictate that a physician give patients amounts of opioids for severe pain, that the government refers to as "obscene." Imagine what that means to you if you are such a patient.

These scientific truths flew in the face of the government's propaganda machine, which they use to justify the entire War On Drugs. We in the pain community have borne the brunt of a huge, law enforcement apparatus desperately fighting to justify its existence in the face of evidence that proves that the "hardest" of all drugs, the feared and dreaded opium, turns out not to be so dangerous at all.

For turf reasons, PRN has been undermined by the other drug reform organizations. At this point, we would like to represent this issue in court and seek financial and tactical support on this limited basis and not as part of the drug policy, i.e., harm reduction or marijuana movement. Our movement has its own history and its own political allies.

We are fighting for ethical medicine, and for the civil rights of people in pain, something that the CSA has effectively outlawed. But this is also a fight for judicial oversight of the executive branch, when the Congress has shown that it will not protect the vulnerable minority of people in pain lest it look "soft" on drugs.

There is a great more to say, but I'll leave you with this:

People in pain are the canaries in the coalmine. They are the Americans who are the "collateral damage" when we, as a nation, gave into the temptation to relax the Constitutional protections afforded defendants because the bad guys-i.e. drug dealers-were so bad that the good guys had to be given a procedural advantage. Now, the new bad guys are the few doctors in the communities who put the patient's best interests ahead of their own, and who treated the pain of these most desperately outcast people. This is what happens when we give into the urge to relax our protections of defendants. This issue makes the resulting tyranny terribly, terribly real.

We are looking for thoughtful participation and financial support. Please feel free to call or email with any questions. We are a 501 c3.

Our Tax ID # is 54-2105672.

PO Box 231054

New York, NY 10023



(917) 432-4294

My name is pronounced She-vaughn. Short e.

Here's an important article on the issue by Maia Szalavitz.

Dr. Feelscared
http://www.reason.com/0408/fe.ms.dr.shtml

Thank you.

Siobhan Reynolds

Family Member of a Chronic Pain Patient

President

Pain Relief Network

'Standing up for patients in pain and the doctors who treat them'


(212) 873-5848

(212) 873-6755 fax

rathronan@aol.com

Here we have one of very few doctors addressing where the problem lies; With the DEA.


Dr. Kale vs. the drug warriors
Oxycontin is not the problem, he says. ‘The DEA is the problem.’
Doug Smith
12/15/2005
http://www.arktimes.com/Articles/ArticleViewer.aspx?ArticleID=98f61852-b339-45e3-a234-d35103cdca55

DR. ROBERT KALE


FORT SMITH – This is Dr. Robert Kale discussing the drug problem in America:

“The drug problem has gotten worse since the inception of the DEA [federal Drug Enforcement Administration]. The pressure they put on caused an increase in price. When that happened, a whole bunch of entrepreneurs got in the business, just like Prohibition. Drugs hadn’t been rampant in the schools before the DEA. In the ’60s, amphetamines were widely available, but they weren’t used recreationally. They were used to lose weight. Truck drivers used them to stay awake. [So did college students

cramming for tests.]

“Congress told the DEA, ‘You’re not making a difference.’ The DEA needed something it could be effective on. So about 2001 or 2002, they designated Oxycontin as the number-one drug problem in the country.” Oxycontin is a pain-relieving drug, one of a group known as “opioids,” that is prescribed by doctors. “Look in the paper at the drug arrests. You’ll see methamphetamine, marijuana, cocaine and heroin arrests. And a lot of those are just from random stops on the highway. There’s no telling the amount of illegal drugs that never get caught. Much less often do you see arrests involving prescription drugs, and when you do, it’s usually in combination with nonprescription drugs.

“Meth is the big problem, not Oxycontin. But the DEA likes to go after doctors, not the people making meth. Doctors are in air-conditioned offices, and they don’t carry guns. That’s a lot better than going out in tick-infested woods looking for somebody who may be armed and hostile. Also, doctors are easily intimidated. So DEA, being the cowards and scum that they are, goes after doctors instead.”

In the end, it turns out there’s an even bigger drug problem than meth. “The DEA is the problem. The DEA is out to prevent legitimate patients from getting legitimate prescriptions from legitimate physicians.”

The DEA has certainly been a problem for Kale, a Fort Smith pain management physician who’s no longer practicing. A couple of years ago, after the state Medical Board had suspended his license, thus denying him the right to prescribe drugs in Arkansas, and the DEA took away his DEA registration, thus denying him the right to prescribe controlled drugs anywhere. Even when the Medical Board found him innocent of drug violations and restored his license, the lack of a DEA registration effectively kept him out of business. “A pain management doctor can’t open a practice and not prescribe pain medicine.” Last month, the DEA returned his registration, having held it for 22 months after the Medical Board had reinstated him. He can (Voluble on most subjects, Kale is rather tight-lipped, and vague, when asked how he’s been getting by without his medical practice. “We’ve been selling a lot of things,” he said, and “I have a small disability.” Perhaps he had a lot saved up, although he said that he only saw 15 patients a day — believing he couldn’t do justice to more — and therefore made less than $50,000 a year. “What doctor does that?”)

Kale’s opinion of the Medical Board, and especially its chairman, Dr. W. Ray Jouett of Little Rock, is similar to his opinion of the DEA. He said that like most doctors these days, the doctors on the Medical Board work for insurers, since it’s insurers who pay for treatment. “I’m one of the last few doctors in this world that believes I work for the patient,” he said. The Medical Board is hostile to pain management physicians, he said, because pain management physicians diagnose chronic pain in their patients and prescribe long-term treatment. Insurance companies don’t want to hear about long-term treatment, much less pay for it, Kale said.



Kale is 53, intense and outspoken. He’s from Ohio and got his medical degree at Ohio State University, after which he served six years in the Navy. He’s an anesthesiologist trained in pain management, he said, and he was recruited to this area to start an anesthesia program at Crawford Hospital in Van Buren. He worked as an operating room anesthesiologist until he had to leave the o.r. because of back trouble. In 1995, he opened a pain management office. His practice included acupuncture, which he’d studied and which he says is effective on certain kinds of pain.

Some doctors are skeptical of their patients’ complaints, and are encouraged in their skepticism by the insurance companies, Kale said.

“A pain management doctor has to believe the patient when he says he’s in pain. Otherwise, I can’t be any good to him. I trust my patients. The patient has to keep records, he has to keep track of the pills he gets. He can’t do that if he’s abusing drugs.”

In 2002, the Medical Board charged Dr. Kale with over-prescribing controlled substances and suspended his license. Then, according to the doctor, a DEA agent persuaded him to surrender his DEA registration, through trickery, not mentioning that he had a right to a hearing nor saying anything about possible DEA charges against him. He says he was told over a year later that he had given up his registration “in lieu of DEA charges and prosecutions.”

Kale said the complaint that brought him before the Medical Board came from Dillard’s, the department store chain headquartered in Little Rock.

“Dillard’s wrote a complaint on me on a worker’s comp patient. They sent a nurse to tell me they didn’t want her [the patient] to get this expensive medication anymore. Her life was much better with the medication, but it was costing $1,000 a month.” The Dillard’s nurse said he was overdosing and told his nurse that if he didn’t stop, he’d be in trouble with the Medical Board, he said. “Two weeks later, the Medical Board issued a subpoena.”

The Medical Board eventually dropped the over-prescription charge, but found Kale guilty of violating a board regulation that requires pain management programs to offer interdisciplinary services, such as psychiatric and occupational therapy. A circuit court upheld the board’s finding. Kale is appealing to a higher court. The board restored his license unconditionally and allowed him to apply for reinstatement of his DEA registration. He did apply, but the DEA took no action on the application for 22 months, he said, other than asking him to sign agreements that would have been virtual admissions of guilt. Kale said the DEA claimed it had evidence that Kale patients had diverted drugs — that is, sold to others drugs that had been prescribed for themselves. Kale said there was no diversion.

In the meantime, Kale was demanding investigations of DEA agents he felt had abused him, including the one he said tricked him into giving up his DEA registration, Chris Anderson. Because of these demands, and his refusal to sign agreements the DEA asked him to sign, the agency had a vendetta against him, he said, and that’s why it held his registration so long after the Medical Board had cleared him of all drug charges. Also, the DEA needs to justify its existence, and doctors are easy prey, he said.

Kale’s patients sprang to his defense, as much as their pain allowed, in his confrontation with the Medical Board. Among them were 15 nuns, the sisters of St. Scholastica Monastery in Fort Smith, who wrote: “We experience Dr. Kale as a compassionate physician who is available to relieve those in pain. … Dr. Kale is a credit to the medical profession and the Fort Smith area. … He has even come to the Monastery on Sundays to treat our Sisters.”

Another correspondent, who addressed her letter to “Roy Juett,” was more belligerent: “I understand that you’re a doctor of some sort but from what I hear and read you don’t deserve that address in front of your name so I’m going to call you Roy. … I only hope and pray that one day you will suffer from chronic pain and there will be no Pain Management Doctors left to help you. I hope you can sleep at night knowing all the pain and suffering hundreds of people are going through because of you.”

The Medical Board’s files include one letter from a former Kale patient who was less than complimentary: “At one time he had me taking 60 mlg. of oxycontin daily … I was sleeping my life away and when I weaned myself down I went 48 hours without urinating and I went to the emergency room for help and ended up locked up in a de-tox ward. … After that horrible day, ‘Dr.’ Kale didn’t want to see me anymore …”



That the Medical Board cleared him of any drug charges is a great tribute, considering that the board is biased against pain management physicians, Kale said.

“Jouett has made his life [performing surgery] on people with back pains. He’s the medical director for Tyson Foods. He’ll tell you that none of his patients have pain except the people who are trying to get out of work. Pain management physicians came along in the ’90s. The AMA [American Medical Association] was saying that pain is undertreated in this country, and that meds can be used long-term. Before, a person in chronic pain just wasn’t treated. Pain management physicians began to testify that 40 to 60 percent of people who have back surgery have pain afterward. They can function only if you treat the pain. Suddenly, we’re a threat to doctors like Jouett.”

The Times sought comment from Jouett. He did not return phone calls. A Medical Board employee suggested that a reporter talk to William H. Trice III, the board’s attorney, rather than Jouett.

(The Medical Board never yields information easily. Dr. Sidney Wolfe, director of the health research group of Public Citizen, the consumer advocacy group headquartered in Washington, once wrote: “Arkansas’ medical board seems bound and determined to shield doctors from adequate public scrutiny. Patients have to mail requests to the board or go to its office in Little Rock to get any information on their doctors’ histories. That’s an unnecessary burden, and it is likely that most patients are unaware if their doctors have been disciplined.” The procedure Wolfe described is still in effect. A reporter had to make an appointment several days in advance in order to look at the medical board’s file on Kale.)

Trice was asked if the board had a policy on pain management physicians. “It depends on what you mean by a policy. The board has regulations. Some patients need temporary pain treatment. If you’re going to treat pain for longer than six months, you have to monitor the treatment and comply with certain other requirements. Some patients choose to abuse the medication. Sometimes a patient’s pain is relieved, but the treatment is such that the patient is no longer functional. That does no good.”

Getting his license and his DEA registration back is not enough for Dr. Kale. He wants the Medical Board to resign. He’s also filed a suit against the board in federal court for its alleged mistreatment of him. He wants a hearing before the DEA on his complaints against DEA agents, and he’s filed a federal suit against Chris Anderson, the DEA agent he alleges misled him into surrendering his DEA registration. A DEA spokesman in Little Rock said that because of that lawsuit, the DEA would have no comment on Kale and his allegations.

“My father was a railroad worker with an eighth-grade education,” Kale said. “For his son to become a doctor was the American dream. I’ll fight to keep my reputation.”

His business is relieving pain, but he hopes to inflict some too.

Portraying Doctors as Drug Dealers
December 08 2005
Maia Szalavitz
http://www.stats.org/record.jsp?type=news&ID=530

Is this reporting or propaganda?This story in Cleveland Scene is a classic example of how misunderstanding of the nature of addiction and misreading of the law leads to misleading news stories and the support of misguided criminal prosecutions.

On Pins and Needles


Writer Josh Mound reports that Dr. Jorge Martinez gave pain patients painful “nerve block” injections and then prescribed painkillers. According to Mound, federal prosecutors claim Martinez was a drug dealer who “turned [his patients] into addicts,” through this practice. While the reporter acknowledges that “patients should take some responsibility for their own choices,” he says that the sheer number of claims that Martinez made people into addicts suggest that there is truth to them.

But this is absurd: addiction is defined as a compulsive use of a substance despite negative consequences by the most widely accepted definition, that of the American Psychiatric Association. No one can “make” someone else do this. One can certainly induce physical dependence on opioids (which means abrupt cessation will produce flulike withdrawal symptoms), but one cannot compel someone else to compulsively desire and seek out more of a drug, despite negative results from doing so.

That requires repeated personal choices no matter how many people claim otherwise. And, it occurs only in a minority of people exposed to opioids medically—without a prior history of addiction, roughly 1%.

Mound fails to mention, in fact, that some 90% of all prescription drug misusers, according to federal statistics, have used cocaine and psychedelics. This means they are not drug-naïve pain patients—they are pre-existing heavy drug users who seek out doctors to get drugs. This is why the manufacturer of Oxycontin, Purdue, which has been sued hundreds of times for allegedly addicting people, has never lost a case.

Mound himself opens his story with the case of an addict who heard from other drug users that Martinez was an easy target for scams to get drugs and who then sought him out. This is no innocent victim “turned into an addict” by an evil doctor. But Mound uses the case to portray Martinez as the bad guy.

He notes that a worker in Martinez’ office was busted selling faked prescriptions—and while he acknowledges that she may receive a reduced prison term for testifying against the doctor, he uses her story mainly to further demonize the physician. He reports that the doctor continued to prescribe to the man who bought the forged prescriptions.

Mound alleges that this is because Martinez was greedy—but doesn’t note that it could also be because he thought that the man was suffering from legitimate pain. Mound doesn’t seem to get that being an addict doesn’t preclude having legitimate pain and requiring medical care.

Mound repeatedly portrays Martinez as paranoid and money-hungry—and says that the nerve block injections he gave were painful, expensive and unnecessary. But what he misses here is that Martinez is caught between a rock and a hard place. If he simply prescribes opioids based on patients’ descriptions of their pain, he is being “loose with his prescription pad,” and not trying alternatives before giving potentially addictive drugs, according to the feds. If he gives nerve block injections (which do not involve opioids), he’s making legitimate patients endure painful shots so that he can turn them into addicts. How can he win?

Perhaps Martinez gave these injections precisely in order to attempt to ward off addicts, who might not want to endure such treatment if they were simply faking their conditions? This is not an admirable practice—but it certainly reflects the current atmosphere of fear produced by precisely these kinds of prosecutions.

What Mound also doesn’t seem to understand is that if Martinez is giving painful and unnecessary treatments, this is considered medical malpractice and not a criminal act. Just because the prosecutors are conflating Martinez’ alleged poor medical treatment with his alleged drug dealing, doesn’t mean that journalists have to do so as well.

Mound does note that there are “many” patients who have organized to support Martinez and who say he was a good and compassionate doctor. But he gives this group less than 200 words to state their case in a nearly 4,000 word article—and uses one of the five paragraphs he gives them to quote one as calling some of the other patients “pillheads.”

While the government didn’t pay this paper to print its propaganda as it has been known to do elsewhere these days, with this kind of reporting, it might as well have. Martinez may well be a terrible doctor. He might even be a drug dealer. But this article has convicted him of malpractice and drug dealing without adequately exploring the other side of the story and in a way that confuses criminal and civil law.

Lampert Smith: Why do we have to let drugs take another life?
http://www.madison.com/wsj/home/local/index.php?ntid=63208&ntpid=5

11/29/05


To a grieving family, it must seem like too little, too late.

Last week the Wisconsin State Journal reported that a man was convicted of reckless homicide for buying the heroin that killed 19-year-old Sarah Stellner. In February, the drug dealer who sold the OxyContin that killed Julie Zdeblick, 17, was sentenced to five years in prison.

Can't we arrest these drug dealers before someone dies?

That's what Waunakee grandmother Arlene Schmitz was thinking when she called Waunakee and Dane County authorities to report the person she believes sold OxyContin to her daughter. On Monday, her daughter checked in to the Huber Center to begin her sentence for driving under the influence, leaving behind a 3-year- old in the custody of relatives. The alleged dealer is still free.

"I thought police were here to protect the public," Schmitz said.

Schmitz said her daughter became addicted to the powerful narcotic painkiller after she was injured in a car accident and a doctor prescribed OxyContin.

Schmitz said her daughter also began buying pills from a woman who had a prescription for the drug.


The daughter was arrested for driving under the influence of OxyContin in January in Middleton, with her 3-year- old child in the car. She was arrested again in March when she passed out in her car. In the first case, Schmitz said her daughter was in a near coma, with dangerously low blood pressure, and spent four days hospitalized in intensive care.

"What's it going to take?" Schmitz asked, "a death?"

So why didn't police go after the dealer?

Detective Steve Wegner, of the Dane County Metro drug unit, was blunt.

"If we lived in Russia, we wouldn't have to verify information, and we could just go out and arrest people," he said. Wegner said the daughter wasn't willing to give the kind of evidence that would stand up in court. (Schmitz said her daughter did talk to police, but she didn't want me to interview her daughter directly.)

"Pill cases are difficult," Wegner said, "because most people do have prescriptions. If they're prescribed OxyContin, you have to prove they took more than they were supposed to."

Wegner said OxyContin is a growing problem, and seems to have replaced Ecstasy in popularity among teenagers.

"We're seeing a lot more of it in the Madison area," he said. "Kids I see tell me they need it just to function. They pop a pill and go to school. Without it, they go through massive withdrawal."

These cases are complicated. Police need witnesses who are willing to go make undercover buys from the dealer, testify in court, or reliable enough that they're able to make them into confidential informants. Anyone who knows addicts knows that reliability isn't their best quality.

I don't think the police are wrong here, although I hope they keep an eye on the alleged dealer.

But I sympathize with Schmitz. It's awful to watch addiction destroy people you love. You'd do anything to save them.

And I hope that a year from now we're not writing a story about another death and another dealer being arrested when it's too late.

Contact Susan Lampert Smith at ssmith@madison.com or 252-6121.

Prosecutors push to speak with Limbaugh doctors
http://tinyurl.com/9mgkm

Palm Beach Post

November 09, 2005

WEST PALM BEACH — Prosecutors redoubled efforts to talk with Rush Limbaugh's medical providers, arguing in court Tuesday that they should be allowed to as part of their doctor-shopping investigation of the conservative talk-show king.

Attorneys for Limbaugh kicked up their aggressive defense too, seeking to hold prosecutors in contempt for allegedly leaking information to the media.


Separately, Roy Black, an attorney for Limbaugh, argued that the confidentiality between a doctor and patient is a privilege not pierced — even by criminal investigators. The law requires a waiver from Limbaugh to speak with his doctors, argued Black, and that was not forthcoming.

"They cannot force Mr. Limbaugh to supply their evidence for them," Black said.

Limbaugh, 54, of Palm Beach, has not been charged with a crime. He's been a target of a Palm Beach County State Attorney's Office investigation since his former housekeeper told a story of rampant prescription drug abuse by Limbaugh. Limbaugh has publicly acknowledged an addiction to painkillers.

Assistant State Attorney James Martz argued that he needs to ask basic questions of Limbaugh's doctors to responsibly investigate if a crime of doctor-shopping has been committed.

"I would be devastated, I kid you not, to go forward with a case against Rush Limbaugh or anybody else in the state of Florida to find out at trial... that we put somebody through a criminal prosecution wrongly or inappropriately," Martz told Circuit Judge David Crow.

"I have no idea if Mr. Limbaugh has completed the elements of any offense yet... unless we can ask several pertinent questions."

Crow reserved ruling on Martz's request, saying he would issue a written order later.

It's another start-stop in the matter drawn out for nearly two years now, after prosecutors seized Limbaugh's medical records in late 2003. That set in motion more than 1 1/2 years of appeals, which Limbaugh in the end lost.

Another judge handed some of the seized medical records to prosecutors earlier this year and returned others to Limbaugh.

Crow deferred to that other circuit judge, Thomas H. Barkdull III, to decide the contempt request.

______________________________

Sick

A Florida paraplegic needs relief.

By Radley Balko

10-24 -05 - Today, Richard Paey sits in a wheelchair behind high walls and razorwire in a high-security prison near Daytona Beach. Paey is a 46-year-old father of three, and a paraplegic. His condition is the result of a car accident, a botched back surgery, and a case of multiplesclerosis — three setbacks that have left him in a chronic, debilitating state of pain. After moving to Florida from New Jersey, Paey found it increasingly difficult to get prescriptions for the pain medication he needed to function normally — to support his family, and to be a parent to his children.

Paey's difficulties finding treatment were in large part due to federal- and state-government efforts to prevent the illegal use — or "diversion," as the feds call it — of prescription pain medicine. Doctors today face fines, suspension, the loss of license or practice, the seizure of property, or even prison time in the event that drug cops (most of whom have no medical training) decide they are prescribing too many painkillers. As a result, physicians are understandably apprehensive about aggressively treating pain.

Like many pain patients, Paey found himself on the blunt end of such policies. He went from doctor to doctor, looking for someone to give him the medication he needed. By the time he eventually turned to his old New Jersey doctor for help, he had already attracted the attention of Florida drug-control authorities. What happened next is disputed, but it ended with Paey getting arrested, getting his home raided, and eventually getting convicted of drug distribution.

Paey insists his old doctor wrote him the prescriptions he needed. The Florida pharmacists who testified at his trial back him up. But the doctor says he forged the prescriptions. For his part, Paey holds no animus against his former doctor. Cops gave the doctor a devil's bargain — give Paey up, or face 25-years-to-life imprisonment for the excessive proscribing of painkillers. Paey still maintains the prescriptions were legitimate, but understands why his doctor turned against him.

The larger issue, of course, is why a man who is clearly not an addict (he wasn't taking the medication to get high) and had a legitimate use for the medication wasn't given access to what he needed in the first place.

State prosecutors concede there's no evidence Paey ever sold or gave his medication away. Nevertheless, under draconian drug-war statutes, these prosecutors could pursue distribution charges against him based solely on the amount of medication he possessed (the unauthorized possession of as few as 60 tablets of some pain medications can qualify a person as a "drug trafficker").

After three trials, Richard Paey was convicted and put in prison for 25 years, effectively a life sentence for someone in his condition. Ironically, the state of Florida now pays for a morphine pump connected to Paey's spine which delivers the same class of medication at the same doses the state of Florida told him wasn't necessary, and put him in prison for trying to obtain.

Prosecutors originally offered Paey a plea bargain that would have helped him avoid jail time, but Paey refused, insisting that (a) he did nothing wrong, and (b) even if he had, it shouldn't be a crime to seek relief from chronic pain. Paey feared that a plea would make other doctors in the state more reluctant to treat pain than they already were.

Publicly, Paey's prosecutors have conceded that the 25-year sentence was excessive, yet they insist that Paey himself is to blame, citing his refusal to accept a plea agreement. The chilling implication: Paey is serving prison time for drug distribution not because he's guilty of actually distributing drugs — the state admits as much —but because he insisted on exercising his constitutionally-protected right to a jury trial.

Earlier this year, New York Times columnist John Tierney flew to Florida to interview Paey for a story that ran on July 19. Tierney's column was sympathetic to Paey's plight, and sharply critical of the state of Florida.

There is now strong evidence that the state of Florida and prison officials retaliated against Paey for speaking with Tierney. Two weeks after the interview, Paey was moved to a prison facility more than two hours from his wife and family. He was then moved even farther away, some 170 miles, to the Tomoka Correctional Institution near Daytona Beach. Sympathetic prison officials, other inmates, and medical staff have since told Paey he was moved away from his family because the guard who sat in on his interview with Tierney had complained to prison authorities about what Paey had revealed to the journalist.

At about the same time, prison medical staff told Paey that the state of Florida had refused to give permission for them to refill his morphine pump. For Paey, this information was the equivalent of a death sentence. The state of Florida left him to agonize for weeks before finally authorizing the refill, the day before his pump was scheduled to run dry. Here again, Paey has since been given strong reason to believe that the threat to withhold his medication was in retaliation for relaying his story to the New York Times.

Two activist groups representing pain patients — the Pain Relief Network and the November Coalition — have begun a campaign urging Governor Jeb Bush to grant Richard Paey a pardon. Governor Bush should hear them out. Richard Paey is not a criminal. He isn't a threat to anyone. He's a tragic figure who has become a political prisoner of America's allegiance to zero-tolerance drug prohibition.

The Paey case has already cast a good deal of shame on the state of Florida. Just how much more shame his story brings to the state depends on whether political leaders move to rectify his plight, or rather choose simply to ignore him, and continue to intimidate him into spending the rest of his 25-year prison term in silence.

Governor Bush should free Richard Paey. And Florida lawmakers should pass reforms to ensure that drug-war fanaticism no longer prevents sick people from getting the medication they need.

WRITE THE GOV HERE:

Gov. Jeb Bush
The Capital
Tallahassee, FL 32399
(850) 488-7146
(850) 487-0801(fax)
jeb.bush@myflorida.com