HALTING THE FLOW OF PILLS

DAs Use Drug-Case Tactics Against Doctors Suspected In Deaths

Medical doctors who allegedly prescribe too many painkillers are
increasingly finding themselves targets of the same criminal laws long used
against common drug dealers.

And in a growing number of "pill mill" cases around the country,
prosecutors not only are hitting doctors with traditional narcotics-related
charges such as distribution of drugs but also are accusing them of murder
in the prescription drug-related deaths of their patients.

As the bold new tactic unreels from coast to coast, Dallas authorities say
they adapted elements of a precedent-setting Florida investigation last
month when they raided Dr. Daniel Maynard's clinic, house and car for
records about his practice near Fair Park.

In the Florida case, a doctor was convicted last year of manslaughter in
the overdose deaths of four of his patients. He was sentenced to 63 years
in prison. The prosecutor in that case, Russ Edgar, sees little distinction
between common drug traffickers and doctors who are "too loose with their
prescription pads."

"What it amounts to is an unscrupulous doctor selling prescriptions," said
Mr. Edgar, an assistant state's attorney in Pensacola. "What we see now is
the effect of combining that practice with new and dangerous drugs. It's
addicting, overdosing and killing people in communities across the country."

Drawing heaviest scrutiny in this aggressive new strategy are pain
management specialists throughout the country who write dramatically more
prescriptions for higher dosages of narcotic painkillers than most other
doctors. Pain management experts say that's affecting legitimate specialists.

'Sitting ducks'

"These investigations have made sitting ducks out of doctors who have put
up their shingle to treat patients who suffer from chronic pain," says Dr.
William Hurwitz, a Virginia consultant and doctor-lawyer who himself has
been investigated for his prescribing of narcotic painkillers. "These are
persecutions, not prosecutions, and they have a tremendous chilling
effect." Left to pay the price, Dr. Hurwitz and others say, are an
estimated 25 million Americans who, according to a survey for the American
Pain Society, suffer from chronic to moderate pain resulting from
accidents, arthritis, migraine headaches, illnesses and end-stage cancer.

Particularly alarming to some doctors is the fact that the Florida case ­
the first of its kind in the country, according to the presiding judge ­
appears to be a blueprint for other investigations.

In addition to Dallas, there are similar investigations under way in South
Florida, Virginia, South Carolina, New Mexico, Arizona and California.

Since his clinic was raided, Dr. Maynard's medical license has been
temporarily suspended, but he has not been charged with any crime. The
search warrant specified 11 deaths among his patients. It also noted that
investigators were looking for evidence that could indicate "manslaughter
or criminally negligent homicide."

Dr. Maynard's attorney, James A. Rolfe, said he's confident the "record
will be set straight" once the doctor gets access to the patient files that
law enforcement confiscated in the raid. "Dr. Maynard has always conducted
his practice legally, ethically and in the best interests of his patients."

The clash between the criminal justice system and a segment of the medical
community, meanwhile, has become increasingly acrimonious and sometimes
esoteric, with doctors claiming that law enforcement has overstepped the
bounds of medical ethics.

Holding doctors responsible for the irresponsible acts of a few of their
patients ­ who kill themselves by taking too many pain pills or mixing them
with other medications or street drugs ­ sets an impossible standard,
doctors say.

"Physicians are trained to care for their patients, not police them," said
Dr. Jane Orient, executive director of the Association of American
Physicians and Surgeons Inc., in a letter earlier this year to the head of
the federal Drug Enforcement Administration. "After bad publicity about
someone overdosing on a painkiller, prosecutions of physicians take the
form of a witch hunt."

Accountability

Some investigators say they are merely trying to hold doctors as
accountable as anyone else. "It boils down to why the doctors are doing
this, and it's not that much different than a regular dope case," said
Dennis Norred, the Florida Department of Law Enforcement agent who
investigated the precedent-setting case of Dr. James Graves. "The doctors
who are involved in these cases are usually hooked up with people that are
funneling them patients."

Disciplining doctors traditionally has been handled by state medical
boards, which often are made up predominantly of physicians.

"You can't count on the regulatory agencies because all they do is take
regulatory action against them, give them a fine, slap them on the hand,
and they're back in practice," Agent Norred said.

The conviction last year of Dr. Graves, who proclaimed his innocence, has
changed investigators' tactics ­ and not just in Florida.

"We felt like there were wrongful death cases and the regulatory agencies,
unfortunately in the past ... never would reach out to us and say, 'Hey,
there's suspicion about this doctor or this pharmacist,' " Agent Norred
said. "Now they will do that. It has brought about a new awakening. ...
We've been all over the nation talking about this."

Among the prosecutors talking to Florida investigators about their approach
was Bridget Eyler, a prosecutor in Dallas County's public integrity unit.
She said for two years she had heard allegations that Dr. Maynard was
over-prescribing drugs, but narcotics officers kept saying "nobody would do
anything about doctors."

She said she found the Graves case on the Internet last summer and phoned
Mr. Edgar, the prosecutor in Pensacola. "I said, 'How did you do this?' "
He told her to get the osteopath's Medicaid profile, which would show his
pattern in prescribing controlled substances.

Simultaneously, the Florida investigative team was guiding Jeff Campbell, a
special agent with the New Mexico attorney general's office, through a
similar inquiry into an Albuquerque doctor.

Days before Dallas authorities searched Dr. Maynard's clinic, New Mexico
authorities got indictments against Dr. Jesse Benjamin Henry, accusing him
of murder in the deaths of seven patients over three years.

The doctor and his wife, who operated the "Walk-In Doctor's Office," have
denied the charges and their attorney has labeled the investigation "a
witch hunt against doctors who use pain drugs and treat difficult patient
populations."

Kari Brandenburg, the New Mexico prosecutor, said Dr. Henry made "lots and
lots of money," seeing as many as 135 people in a morning at $47 each.

"The public perception is, 'Why would a doctor do that? Why would they risk
that?' Going against a doctor for a murder charge is pretty bold," Ms.
Brandenburg said. "I think the general guy out on the street is not going
to want to find a doctor guilty of something like that. The burden in these
cases is even greater, but it needs to be done."

The affidavits for search warrants in the Dallas and Albuquerque cases are
similar, with each noting the number of patients who had died of "mixed
drug intoxication" or other drug-related causes, and the doctors'
prescriptions of narcotics such as methadone, diazepam and hydrocodone. And
there were other elements from the playbook that Mr. Edgar ­ the Florida
prosecutor ­ used in winning a conviction in the Graves case, including the
lengthy lines to see the doctor, the small amount of time the doctor spent
with patients and the volume of narcotics prescribed.

"You have to look at the nature of the practice and type of patients it
attracts," Mr. Edgar said. "Are the patients more like customers who line
up all day, every day? Are they coming in droves? Does the waiting room
look like a line to a Grateful Dead concert? Are the patients having
tailgate parties in the parking lot? Are they coming from out of state? Are
they referred by other patients rather than by doctors? Do they have a
history of drug abuse? Do they have track [needle] marks? Are they
basically using the doctor as a source of drugs which they abuse or divert
to others to abuse?"

Gregg Wood, a federal health care fraud investigator in Roanoke, Va.,
working an over-prescription case that allegedly killed patients, said that
when word spreads that a doctor is a "candy man," the lines outside his
office grow.

"It takes one doctor to swamp a community in illegal prescription drugs,"
he said.

"Ninety-eight percent of the doctors are trying to do the right thing. It's
the 2 percent that are just criminal. Even the doctors want to get rid of
this 2 percent because it causes all the government oversight and
regulation to be applied."

Dr. Hurwitz said the new approach means "medical policy is being made by
law enforcement."

"So the question becomes, to what extent should a patient's clinical
situation be subordinated to public policy or culture? The standards of a
medical practitioner have nothing to do with the standards of law
enforcement," he said.

In a paper that appeared this year in the Journal of American Physicians
and Surgeons, Dr. Hurwitz, a graduate of Stanford Medical School and
Georgetown Law School and a consultant in the Graves case in Florida,
warned that increasing criminal prosecutions would drive legitimate
physicians from chronic pain practice, "thus deepening the national health
care crisis of under-treated pain."

'No objective tests'

Much of what law enforcement has used to condemn ­ and convict ­ pain
management doctors has been misinterpreted, some in the profession say.
"There are no objective tests to know if a patient is actually experiencing
pain, for example," Dr. Hurwitz said. "To an extent, we have to rely on
what the patient in front of us says. Too, pain threshold has no ceiling,
so increased dosage is inevitable and, therefore, higher volumes are
necessary."

Money also plays a role, said Dr. Orient, of the American Physicians and
Surgeons, based in Tucson, Ariz. "Poor patients who can't afford expensive
tests and referrals may have no recourse for their pain except for a doctor
who does little but write prescriptions."

Dr. Hurwitz points to the investigation of Dr. Frank B. Fisher, a
Harvard-trained physician who operated a clinic in rural northern
California that catered primarily to the poor. Dr. Fisher and two pharmacy
owners were accused of murder in the deaths of three patients.

Prosecutors claimed that Dr. Fisher accounted for more than 40 percent of
all the OxyContin prescribed to the poor in California. But he was also
seeing patients no one else would see, Dr. Hurwitz said.

"So Dr. Fisher singlehandedly cost Medi-Cal $1 million," said Dr. Hurwitz,
a member of the Fisher defense team. "And that's a tremendous amount of money."

Charges against Dr. Fisher have been dropped, though prosecutors have said
they intend to re-file them after they get additional evidence.

Practitioners of pain management are also suffering from collateral damage
by the media and survivors of patients who die of drug-related deaths, Dr.
Hurwitz said.

Criminal investigations inevitably translate into civil lawsuits filed by
survivors, he said. Dr. Maynard, for example, has yet to be charged with
any crime, but in the month since search warrants were served on his
practice, he has been named in at least five wrongful-death suits filed by
survivors of patients who allegedly died under his care.

"Everyone in this country is in the business of scape-goating," Dr. Hurwitz
said.

Earlier this month, the American Medical Association weighed in on the
legal-medical clash, pledging in a Web site bulletin to members that it
would help state and specialized medical groups on the federal level oppose
"harassment of doctors who appropriately prescribe pain medications."

Evolving controversy

The controversy over pain management and the high volumes of drugs it
routinely involves, probably will become greater as baby boomers age, said
Dr. Leland Lou, an associate professor of anesthesiology and pain
management at the University of Texas Southwestern Medical Center at
Dallas. "We have to try to create a standard of what chronic pain
management is," said Dr. Lou, who noted the specialty is relatively young.
"That right now isn't very clear.

"... A handgun in and of itself is not necessarily dangerous. It's how it's
used. Is it going to be in a criminal's hands or is someone using it for
protection? It's the same with medicines. There's a lot of medicines that
are used and they often are used in combination, sometimes for different
reasons.

"But are they used appropriately? It's hard to say."