DOC'S DRUG VERDICT FOUGHT

An appeal by an Allegheny County doctor convicted of trading
prescription drugs for sex could be bolstered by the federal
government's loss in a legal battle over assisted suicide. The U.S.
Department of Justice in 2001 challenged an Oregon law legalizing
physician-assisted suicide, saying the practice was without
"legitimate medical purpose." But the U.S. Supreme Court disagreed
this year, saying the Justice Department and the U.S. Drug Enforcement
Administration have no authority to determine "generally accepted
standards of medical practice."

Lawyer Eli D. Stutsman won the case and hopes for a repeat performance
Friday when he appears before a federal appeals court to represent Dr.
Bernard Rottschaefer, who was convicted in March 2004 of illegally
prescribing painkillers -- namely OxyContin -- to five drug-addicted
female patients he treated at his Oakmont office.

"The same rule and statute that the attorney general was interpreting
wrong in Oregon is the same rule and standard that is being
interpreted wrong in Pennsylvania," said Stutsman, who filed documents
last week informing the 3rd U.S. Circuit Court of Appeals in
Philadelphia that he plans to use the Oregon ruling in arguing
Rottschaefer's case.

Rottschaefer, 63, of Plum, was sentenced to 6 1/2 years in prison, but
remains free on appeal.

His attorneys claim:

Prosecutors mixed laws, presenting a case of civil malpractice instead
of a sex-for-drugs criminal case; A key government witness lied on the
stand; The recent Supreme Court decision addresses the tactics used by
prosecutors in this case. Doctors violate federal law when they
intentionally prescribe a controlled substance outside accepted
medical practice -- in other words, when they act as drug dealers, not
doctors.

Rottschaefer was accused of trading prescriptions for sex, but it
wasn't necessary to prove that, said U.S. Attorney Mary Beth Buchanan.

"Even without sex, the evidence was overwhelming," she
said.

Five former patients -- whether they claimed to have performed sex
acts or not -- testified the doctor wrote prescriptions in cases where
narcotic painkillers weren't necessary and without performing adequate
examinations, tests or follow-ups, according to testimony presented by
prosecutors at trial.

Patient charts provided ample evidence that Rottschaefer prescribed
drugs for no legitimate medical reason, said Assistant U.S. Attorney
Mary Houghton, who prosecuted the case. A medical expert testified he
saw no reason to prescribe OxyContin to the five patients who
testified against Rottschaefer.

That the expert reviewed medical charts shows Rottschaefer acted as a
doctor, not a drug dealer, Stutsman said. Whether the medical standard
of care had been met or not is a civil matter, not a criminal one, he
said.

Rottschaefer's case was about prescribing drugs for sex, not
practicing the best medicine, Stutsman said.

"The sex-for-drugs allegations is like asking, 'When did you stop
beating your wife?' How do you answer that? It almost works as if it's
a smear tactic, then they put on a case of good and bad medicine," he
said. "If the government says this is a case of sex for drugs, then
they need to put that on."

Buchanan said Rottschaefer's appeal is without merit.

"The jury found there was no legitimate reason to prescribe the drugs,
and that's what they convicted him of," she said.

Some believe the DEA's crackdown on doctors is politically
motivated.

"It's self-serving for them. Bureaucrats have to do things that defend
their existence," said U.S. Rep. Ron Paul, R-Texas, a physician and
Green Tree native. "The unsuccessful war on drugs led to the war on
doctors so they could show some sort of success."

Doctors and law enforcement worked together when the modern war on
drugs began in the early 1970s, Paul said. Now they appear to be
pitted against each other, he said.

"It looks like the doctors are more vulnerable under these laws and
prosecution than some of the street drug dealers and gangs," Paul said.

Others speculate the DEA focused on doctors in recent years that
federal reviews gave the agency a zero rating for results and
criticized it for not doing enough to combat prescription drug abuse.

"They've spent billions of dollars on the war on drugs, and they
haven't won the war," said David Brushwood, a lawyer and pharmacy
professor at the University of Florida. "In fact, they haven't even
won many battles. They need success, and one way to get success is to
redefine what is success. Instead of counting arrests like they used
to do, now they're counting doctors prosecuted."

DEA spokesman Rusty Payne said the agency does not have a campaign
against doctors.

"The idea that we're doing anything different just isn't the case," he
said. "We're doing what we've always done."

Prescription drug abuse is an exploding problem, Payne said, and the
DEA is responsible for investigating claims against doctors.

But "we don't review every prescription written for pain medications,
and we don't walk into every doctor's office," he said.

Of the 600,000 physicians registered to prescribe controlled
substances, a minuscule number are investigated, and even fewer
charged and convicted, Payne said. Last year, 39 doctors were
convicted of violating the Controlled Substances Act, up from 24 in
2004.

Five women with multiple drug addictions testified for the government
during Rottschaefer's trial.

Four said they performed oral sex in exchange OxyContin prescriptions.
All four also testified as part of plea bargains, Stutsman said.

Jennifer Riggle -- a witness who'd been arrested 11 times -- wrote to
her boyfriend in prison that she was lying about the sex-for-drugs
scheme in hopes of getting state charges reduced or dropped for
selling OxyContin to undercover agents. After the trial,
Rottschaefer's attorneys received 183 letters in which Riggle
discusses her plan to lie more than 30 times.

"I had just prayed and asked God to give me the confidence to be able
to lie about (Rottschaefer) just this once," Riggle wrote in October
2002. "I am not a good liar. I am scared. The only reason I'm doing
this is 'cause he's pretty much already had and he doesn't deserve to
be practicing. He has ruined many lives and some people have even
O.D.'d on the Oxy's. Do you think it could come back to haunt me and
that was a stupid question to ask God? Is there an exception at all to
telling a lie?"

U.S. District Judge Gary Lancaster declined to grant a new trial based
on the letters, which Stutsman called an unprecedented amount of evidence.

"It's a once-in-a-lifetime thing to see this kind of handwritten
perjury," Stutsman said.

Buchanan doesn't believe the letters prove perjury.

"When is the witness more credible -- under oath in a federal trial,
or trying to convince a boyfriend she wasn't having sex outside their
relationship?" Buchanan said.

Even if Riggle did lie about the sex, "there was more-than-ample
evidence for the jury to find that the government proved its case
beyond a reasonable doubt," Buchanan said. "The government proved at
trial that Dr. Rottschaefer on 153 occasions prescribed OxyContin and
other drugs for no legitimate medical reason."

Stutsman argues that falls short of what needed to be proven, and he
wants the 3rd Circuit to fix it.

"Dr. Rottschaefer is entitled to a fair and clean prosecution," he
said.