Winter/Spring 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
|
On The Prosecution of Pain-Treating
Physicians
The author was fully exhonerated six years
after being charged with murder and Medi-Cal fraud
By Frank Fisher, M.D.
Most citizens assume that physicians regulate the practice of medicine, but
state medical boards are composed primarily of law enforcement personnel.
When the state Medical Board receives a complaint concerning a physician’s
conduct, a police officer equipped with a badge, a gun, and a degree in criminology
is assigned to investigate. Worse yet, the decision about whether or not
to take action on any given complaint, falls entirely to law enforcement.
After evidence is gathered, the case is referred to a deputy attorney general
for prosecution. This publicly employed lawyer works for the Attorney General,
otherwise known as the state’s “top cop.” The fact that the Attorney General’s
name appears at the bottom of the ensuing accusation should remove any doubts
about the law-enforcement nature of a Medical Board action against a physician.
The ensuing prosecution takes place not before a medically sophisticated jury
of the physician’s peers, but before an administrative law judge. Many ALJs
have been previously employed as deputy AGs, and maintain their offices within
the Attorney General’s quarters. During an administrative hearing, the ALJ
functions as both judge and jury. These facts raise concerns around the issues
of due process, and law-enforcement bias.
Not surprisingly, the outcomes of these Medical Board proceedings, where controlled
substances issues are at stake, have little to do with the Board’s stated mission
to protect the public. In fact, the nature of these proceedings raise concerns
about who will protect the people of California from the Medical Board?
An examination of the Board’s quarterly Action Report, which lists disciplinary
measures taken against California physicians, suggests that as many as 50%
originate from complaints about the prescription of opioid analgesics. The
exact percentage remains to be quantified, as many actions when they are finally
reported describe alleged transgressions in record keeping, or fraud. The origin
of a disciplinary action in a complaint concerning the prescription of opioid
analgesics may, in this manner, be concealed.
The Medical Board may spend half its budget pursuing
pain-treating physicians.
Action Report data suggest that the Medical Board of California may
be expending as much as $20 million of its $38 million per year budget
on investigating and prosecuting pain-treating physicians.
A sane regulatory system would expend these financial resources on identifying
dangerous physicians who might actually pose a threat to the public.
This improvident allocation of MBC resources results in the under-treatment
of chronic pain by intimidated doctors. It also leads to the escalation of
malpractice premiums as doctors who cause harm avoid scrutiny.
Implications for Standards
The involvement of law enforcement in the regulation of medical practice is
basically inimical to the availability of good medical care.
Under ideal circumstances, medical standards arise from a combination of 1)
scientific research, and 2) a mindset geared towards serving the best interests
of the patient. When law enforcement regulates the practice of medicine, neither
occurs. Scientific research is replaced by a social agenda, driven by drug
war ideology. Under these circumstances, law enforcement sets the standards
for medical practice.
The medical profession is coerced into imposing
a system of drug control upon pain victims, rather than providing
them with pain control.
As an unintended consequence of the war on drugs, physicians are required,
in order to keep their licenses, to assume a quasi law enforcement
role in society. The medical profession is in this manner coerced into
imposing a system of drug control upon pain victims, rather than providing
them with pain control.
While prosecutions against both marijuana-recommending and opioid-prescribing
physicians are driven by law enforcement agendas, their respective effects
on both physicians and patients differ. An examination of the differences reveals
useful insights about how the regulatory morass around these medically important
substances may eventually be resolved.
Although law enforcement is actively engaged in the persecution of physicians
who recommend medical marijuana, and as a result, the majority of California
physicians are too intimidated to provide this service to their patients, most
patients who need a marijuana recommendation are able to obtain one. These
patients are also usually able to obtain their medication.
Patients who need opiates to treat chronic pain, on the other hand, are rarely
so lucky. They are often unable to obtain the medication upon which their very
survival may depend.
The existence of this paradox is counterintuitive. One would expect that legal
substances such as opioid analgesics would be more available to patients than
illegal ones such as marijuana. The contrast between the respective availabilities
of these medicinal substances illustrates the exquisite vulnerability of the
medical profession to the social agendas that are imposed when law enforcement
regulates the practice of medicine in accordance with its drug war agenda.
There is a lesson that must be learned from this paradox.
Prohibition Prevents Treatment
Prohibition inevitably prevents much needed medical treatment. The ensuing
regulation of medical practice by law enforcement perverts medical standards,
and thus creates an insurmountable bottleneck that prevents needed medications
from getting to patients.
The current regulation of marijuana though Proposition 215 to some extent bypasses
this bottleneck. While Prop 215 allowed physicians to approve mariuana use,
it would be a mistake to make it a prescribable drug. If this approach were
to backfire, medical marijuana might end up less available to patients than
it is now. It makes sense to remove marijuana entirely from the schedule of
controlled substances, not to reschedule it for use as a prescription drug.
The nature of the controlled substances scheduling apparatus itself bears scrutiny.
The existence of this system is based on the assumption that society needs
the federal government to protect it from supposedly abusable substances. Marijuana
and opioid analgesics have been successfully demonized to the point where the
general public feels that government intervention is necessary to protect us.
On a scientific basis, the controlled substances schedule is malarkey, as opioids
and cannabinoids are unusually safe for medicinal use. Patients rarely, if
ever get addicted, and deaths from appropriate medical use range from rare,
in the case of opioids, to nonexistent in the case of medical marijuana. Consequently,
the schedule is most accurately characterized as a law enforcement drug hysteria
index.
How to Proceed
What won’t resolve the crisis in the treatment of chronic pain is fine-tuning
the current system. Attempts to do so over the last 15 years have only made
it worse.
The enactment of intractable pain acts and the promulgation of medical board
guidelines for the use of controlled substances in the treatment of chronic
pain are based on the misguided assumption that some iteration of the regulation
of medical practice by law enforcement could possibly succeed in delivering
needed care to patients. This assumption reflects a profound misunderstanding
of the actual consequences for medical standards associated with requiring
law enforcement to regulate medical practice.
The only certain way to restrict law enforcement’s grasp on this aspect of
medical practice is to remove opioid analgesics from the schedule of controlled
sbustances. This action would signify the end of opioid prohibition as we know
it. Not until the under-treatment of chronic pain becomes a national scandal
will there be a movement to end opioid prohibition.
Most assume that when the time comes, their pain will be treated. They are
sadly mistaken. In place of available pain treatment, there exists a widespread
myth of available treatment.
An incremental step towards solving the pain crisis would eliminate physicians
as the bottleneck, by decriminalizing the possession of opioids for medical
use. This would resemble the current approach to the regulation of medical
marijuana.
Such a strategy would be based on the understanding that many pain sufferers
might have better luck procuring opioid analgesics through the black market
than they currently have obtaining them from their own physicians. Many pain
sufferers are forced into the black market already. Society probably isn’t
ready for this solution either, as the realization is only just dawning that
the undertreatment of chronic pain is a major public health problem.
When the realization sinks in that the regulation of medical practice by law
enforcement is a far greater menace than the illicit substances themselves,
and people realize that the desecration of the physician-patient relationship
is too high a price to pay for these illusory protections, social policy regulating
medicinal substances will change.
The eventual solution may resemble the time-honored and relatively sane regulation
of alcohol and tobacco. The less law enforcement is involved in the regulation
of medicinal substances and hence medical practice, the better off we all will
be.
"Fisher's
Ordeal is Finally Over"
Frank Fisher, M.D.
|
As reported by Malinne Hazle in the Redding Record Searchlight,
February 2, 2005:
Six years after state agents raided his medical clinic in Anderson, Dr. Frank
Fisher's legal problems appear to have ended with the quiet dismissal of the
last of four wrongful death suits against him.
The dismissal papers were filed late Monday in Shasta County Superior Court
and delivered to Fisher's attorneys Tuesday —the sixth anniversary of his arrest
for multiple murders and massive Medi-Cal fraud.
“This tells me that those malpractice lawsuits were frivolous, but I knew that
all along,” Fisher said Tuesday. “I'm just glad it's over.”
The four civil cases were filed by relatives of patients who allegedly died
of OxyContin overdoses in some of the same cases that prompted his arrest.
At that time Fisher was roundly criticized by law enforcement and some members
of the medical community for prescribing what they said were huge doses of
the drug, a sustained-release pain opioid that since has grabbed nationwide
headlines and spurred numerous criminal cases against doctors.
Also arrested and named in the wrongful death suits were Redding pharmacist
Stephen Miller and his wife, Madeline.
That all the cases were dismissed in Fisher's favor is a testament to the doctor's
insistence on “standing on principle ... sometimes to his own detriment because
it took so long to have an ending he can live with,” said attorney James Goodman
of San Francisco, who helped defend Fisher in the civil cases.
“I feel sorry for the people who sued me. I believe that they were misled by
the (state) agents,” Fisher said.
Fisher said he also believes he has remedied a long-running state Medical Board
investigation that once threatened his license to practice medicine.
He said he has signed an agreement with the state that he will pass a refresher
course in general medicine, will keep a list of any controlled substances he
prescribes and will allow his cases to be monitored for a while.
Although Shasta County Superior Court Judge William Gallagher forbade Fisher
to practice medicine while he was out on bail on the criminal charges, the
state never yanked his license. But Fisher was in jail for five months before
his $15 million bail was finally reduced and spent the next five years fighting
his legal battles, so he hasn't practiced.
Fisher said he hopes to open a clinic somewhere in rural Northen California,
possibly even in Shasta County.
“I don't have anything against Anderson or Shasta County,” he said, characterizing
his arrest as “part of a nationwide witch hunt.”