Pubdate: Sun, 22 Jan 2006
Source: Washington Post (DC)
Page: A04
Copyright: 2006 The Washington Post Company
Contact:  http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Marc Kaufman,Washington Post Staff Writer
Cited: Cato Institute http://www.cato.org/
Cited: American Pain Foundation http://www.painfoundation.org/
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?232 (Chronic Pain)
Bookmark: http://www.mapinc.org/oxycontin.htm (Oxycontin/Oxycodone)

ASSISTED-SUICIDE RULING MAY AFFECT PAINKILLER CASES

Doctors who specialize in pain management and their advocates are
hoping that last week's Supreme Court decision upholding Oregon's
assisted-suicide law will boost their efforts to defend colleagues
accused by the government of illegally prescribing narcotic
painkillers to their patients.

With dozens of doctors, pharmacists and patients now in jail or
awaiting imprisonment after being convicted of drug trafficking, the
specialists and their attorneys say the Oregon ruling supports their
contention that prosecutors have reached improperly into the
state-regulated practice of medicine.

"The prosecutors have been making a policy argument in court against
the treatment of chronic pain as it's being practiced, and this
Supreme Court decision makes clear that is not their role," said Eli
Stutsman, an Oregon attorney who represented a doctor and pharmacist
in the assisted-suicide case. He is now arguing appeals for several
convicted pain doctors.

"Before I was just a lawyer with a legal analysis before the courts,
but now I have a decision of the highest court of the land," he said.

Whether the Supreme Court decision will have any actual impact on how
prosecutors or judges view the actions of doctors who regularly
prescribe the powerful painkillers remains to be seen, and some doubt
that much will change. Prosecutors have won convictions against many
doctors accused of prescribing narcotic painkillers for no legitimate
medical reason.

Radley Balko, a policy analyst with the Cato Institute, a conservative
Washington think tank, believes the government is being overly
aggressive in prosecuting doctors, but he said he does not see the
Supreme Court decision as a threat to the government's initiative
against what it considers illegal prescribing.

"The justices carved out this little sphere of individual rights with
the Oregon ruling, and I would hope that would migrate into the pain
medication sphere," he said. "But I'm not all that optimistic because
of other decisions they've made."

In particular, he noted, the court allowed the federal government
authority to overrule state laws permitting the use of medical marijuana.

But John Flannery, attorney for a South Carolina doctor convicted in
2004 of illegally writing a handful of pain medication prescriptions
after working at a pain center for only three months, said the
decision has encouraged him about the prospects of an upcoming Supreme
Court appeal of the case.

"The U.S. Supreme Court sent the Justice Department a powerful
message, told them to back off, and to stop meddling in medical care
in the states -- as it was none of their business," he said. "We can
only hope that the courts don't stop with yesterday's decision, as
there's more that the department's doing wrong -- terribly wrong."

Justice Department spokesman John Nowacki declined to address whether
there is a linkage between the Oregon case and the prosecutions. He
said that "the department is committed to enforcing our nation's laws,
and we will apply those laws to ensure that drugs are not diverted to
unlawful uses."

In the prosecutions of pain doctors and some pharmacists who dispensed
large amounts of narcotic painkillers, Nowacki added that "the
government has brought criminal charges . . . and it has been claimed
that there was no legitimate medical purpose for the distribution of
controlled substances."

The Justice Department and the Drug Enforcement Administration stepped
up investigations and prosecutions of pain specialists after doctors
began prescribing larger dosages of narcotic painkillers and the
powerful new painkiller OxyContin became widely abused in the 1990s.

The prosecutions have become increasingly controversial as the number
of health professionals targeted has grown. Pain specialists say
doctors have become reluctant to write medically appropriate
prescriptions of controlled drugs for patients in pain for fear of
being investigated and arrested.

According to Stutsman, the attorney, the direct legal connection
between the Oregon assisted-suicide case and the prosecutions is the
Justice Department's use of the standard of "legitimate medical
practice." In both contexts, the government has argued that it has the
right to set that standard, and in many prosecutions it has persuaded
juries that the pain specialists violated it.

In his decision in the Oregon case, Justice Anthony M. Kennedy wrote
that it is the right of the state, and not the federal government, to
regulate the practice of medicine and define the standard. Stutsman
said that finding was logically applicable to prosecutions where the
government was also determining what is a "legitimate medical purpose."

Will Rowe, executive director of the American Pain Foundation, which
represents pain sufferers, was also heartened by the ruling.

"It's a decision that is on the correct side of the ledger, allowing
states to define medical practice and to determine acceptable medical
practice," he said. "I think that there definitely would have been
more prosecutions than now if the decision went the other way."
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