Pubdate: Mon, 19 Jul 2004
Source: American Medical News (US)
Copyright: 2004, American Medical Association
Author: Andis Robeznieks


Prosecutors oppose legislation to allow doctors to examine evidence against
doctors before an arrest is made.

Stories of doctors being the subject of showcase arrests because of their
prescribing volumes have made the medical community uncomfortable, but when
two of these arrests occurred in the far northern California district of
state Sen. Sam Aanestad, DDS, he decided to do something about it.

Dr. Aanestad introduced the Medical Crimes: Investigations and Prosecutions
bill endorsed by the California Medical Assn. The bill calls for a physician
review of a doctor's prescribing patterns before an arrest is made and also
for the timely return of any medical records seized during an investigation.

"He doesn't believe law enforcement should be involved in dictating the
standards of care in a developing field of medicine," said Dr. Aanestad's
chief of staff, Brett Michelin.

The bill, which passed the Senate by a 33-1 vote, is also supported by the
Medical Board of California. It is opposed by the California District
Attorneys Assn.

Calls to the California District Attorneys Assn., the Los Angeles district
attorney and the Shasta County district attorney were not returned.

An analysis of the bill prepared by the California Assembly Committee on
Public Safety's staff stated that opponents objected to the time and cost
associated with complying with the bill. The staff also believed it would
encroach on the independent judgment of prosecutors and would establish
physicians as a special class of defendants.

They asked: If doctors were allowed a special review of their cases, would
attorneys, accountants and other professions soon demand the same?

"I think the law enforcement concerns are just anxiety about getting on a
slippery slope," said CMA Associate Director of Government Relations Bryce
Docherty. "We think this bill strikes an appropriate balance between
allowing law enforcement to do its job while protecting physicians' ability
to provide care to patients who need it."

Michelin said the money not spent on unsuccessful prosecutions would easily
cover the costs of medical reviews and the delivery and copying of medical

To help the bill's chances of passage in the lower house, Michelin said, it
has been amended so that a prosecutor could still make an arrest even if
physicians who reviewed the case found an arrest to be unwarranted.

"It makes the bill a whole lot weaker then Sen. Aanestad would like,"
Michelin said, adding that if an arrest is made over the objections of
physician reviewers, it would tend to weaken the prosecutor's case against
the physician.

Scott Fishman, MD, chief of the Division of Pain Medicine and associate
professor of anesthesiology at the University of California, Davis, said the
bill is especially important because of the "damned if you do, damned if you
don't" aspect of treating pain. He also said that, because of the lack of
pain specialists, primary care physicians are being called upon to provide
pain treatment, and they shouldn't be criminalized for "making
less-than-perfect decisions."

"Even if they find they've done nothing wrong, the physician has already
been punished by the process," Dr. Fishman said.

Michelin said the stories of Redding, Calif., physicians Frank Fisher, MD,
who was exonerated of murder and fraud charges after a five-year legal
fight, and James Gregory White, MD, who had his patient records seized in
January 2002 and is still waiting for their return, prompted Dr. Aanestad to

If passed, Dr. Aanestad's bill would require that medical records (either
copies or originals) be returned to the physician within five business days.
This provision helped the bill earn the California Board of Medicine's

"Our concern was clearly the issue of consumer protection and continuity of
care," said Linda Whitney, the board's chief of legislation. "Our mission is
consumer protection, and they can't get proper care if they can't get access
to their records."

The CMA, Docherty said, is committed to getting the bill passed. "If the
bill dies this year, we're definitely going to come back with a similar bill
next year," he said. 
- ---
MAP posted-by: Josh