Pubdate: Sat, 13 Jun 2015
Source: Wall Street Journal (US)
Copyright: 2015 Dow Jones & Company, Inc.
Author: Harvey Silverglate
Note: Mr. Silverglate, a Boston criminal-defense and civil-liberties 
litigator, is the author of Three Felonies a Day: How the Feds Target 
the Innocent"  (Encounter, second edition 2011).

When Treating Pain Brings A Criminal Indictment

Lessons from the recent acquittal of a doctor and nurse-practitioner 
accused of overprescribing drugs.

Federal drug-enforcement officials have made it a serious felony for 
doctors to overprescribe painkillers or, as the applicable law 
states, to prescribe controlled substances "other than for a 
legitimate medical purpose and in the usual course of professional 
practice." But the line between legitimate and illegitimate 
prescription - as drawn by the Drug Enforcement Administration (DEA) 
and the Justice Department - is far from clear. This puts physicians 
in great legal jeopardy, and too often leaves their patients to 
suffer needless agony.

Last month a federal jury in Boston acquitted pain-relief specialist 
Dr. Joseph Zolot and his nurse-practitioner Lisa Pliner of 
overprescribing oxycodone, methadone and fentanyl. This prosecution 
shows why drug warriors need either to clarify the currently 
indecipherable line between treating pain and unlawfully feeding drug 
addicts' habits, or get out of the business of policing and 
terrorizing physicians. Unfortunately, the government uses legal 
ambiguity for tactical advantage and will not readily clarify the 
lines it expects doctors to follow at their peril.

Dr. Zolot and Ms. Pliner were indicted in 2011 for their treatment of 
six patients between 2004 and 2006. They faced lengthy, consecutive 
sentences of up to 20 years for each count if convicted. Prosecutors 
alleged that the two providers recklessly dispensed narcotic 
painkillers without legitimate medical purpose and were, in effect, 
dealing. The two pleaded not guilty, maintaining that their 
prescription practices were proper, and that they were not 
responsible for their patients' subsequent abuses. The jurors 
unanimously agreed.

The jury's rebuke is not likely to end the harassment of physicians 
who specialize in pain management. Drug warriors collect the scalps 
of doctors whom they accuse of violating the laws; they have no 
concern in aiding in the relief of patients' suffering.

In August 2004, after repeated urging, the DEA finally released 
guidance for the administration of narcotic analgesics. Its pamphlet, 
produced in cooperation with the medical community, was titled 
"Prescription Pain Medications: Frequently Asked Questions and 
Answers for Health Care Professionals and Law Enforcement 
Personnel."  Even if physicians disagreed with the line between 
legitimate medical practice and criminal over-prescription, at least 
they had notice of where the government drew the line.

But the DEA's support of the guidelines was withdrawn less than two 
months after they were posted on the government's website. And so 
doctors were left with no official guidance about how much OxyContin 
is enough to relieve their patients' pain, and how much could land 
them in prison.

The DEA's retraction coincided with the federal prosecution of 
Virginia pain physician Dr. William Hurwitz, who was eventually 
convicted. The timing struck many observers as suspicious - did 
prosecutors realize that Dr. Hurwitz's lawyers could claim that his 
prescribing practices conformed to its guidelines? The DEA has 
refused to explain why it withdrew its support, and the agency has 
issued no further guidance.

The prosecutions of Drs. Hurwitz and Zolot, nurse Pliner and others 
have ramifications that extend beyond the medical professionals 
unlucky enough to be caught in the DEA's web. Doctors are 
increasingly afraid to prescribe certain drugs to patients who might 
seriously need them.

According to a 2005 survey conducted by USA Today, ABC and Stanford 
University Medical Center, only half of chronic pain sufferers, 
including cancer patients, report that their doctors are adequately 
relieving their pain. "It's a criminalization of medicine,"  Ms. 
Pliner told one Boston reporter after the trial, adding that she was 
afraid, at least for now, to work as a nurse practitioner.

Dr. Zolot's lawyer, Howard Cooper, released a statement from his 
client saying that he hoped that other doctors "oewill realize that 
they should not be intimidated by the federal government in 
prescribing pain medication to their patients who are suffering in 
chronic pain."

Yet Dr. Zolot's acquittal should not give the medical community much 
comfort. It is probably an aberration, attributable to the Boston 
prosecutors' failure to "flip"  a witness. The government failed to 
convince nurse practitioner Pliner to testify against her boss in 
exchange for favorable treatment. Ms. Pliner believed that Dr. Zolot 
was a conscientious and caring doctor and that neither of them had 
done anything wrong.

Experienced criminal-defense lawyers have endless stories of their 
clients being offered favorable deals, even immunity from 
prosecution, if they would provide incriminating testimony against 
higher-ups. The problem, as Harvard Law professor Alan 
Dershowitzoften told his criminal-law students, is that this practice 
teaches witnesses "not only to sing, but also to compose."

Defense attorneys in the 1980s and '90s argued that offers of deals 
encouraged perjury and constituted obstruction of justice. These 
claims met with brief success in some federal district courts but 
were overturned at the appellate level, and the practice quickly resumed.

One lawyer in the Zolot case attributed the two defendants' sticking 
together to the fact that the two shared a special kinship: They were 
Soviet refuseniks who came to America as political refugees and met 
in this country:. "Both have a healthy mistrust of the government."
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