STATE OFFICIAL SAYS PROSECUTION WAS THE RIGHT THING TO DO

Frank Fisher says he knew his prescription practices had attracted law
enforcement's attention the day a purported Medi-Cal patient came to
his Westwood Walk-in Clinic and asked for a Vicodin
prescription.

"I said, 'What's wrong with you?' and he said, 'Nothing,'" Fisher
recalled. "I threw the door to my office open and said, 'You need to
leave.'"

That was in the summer of 1996. Fisher billed Medi-Cal for the visit,
a bill that later became part of the original fraud charges filed
against him in 1997.

"They initially came after me in 1996 just because poor people were
getting some kind of pain treatment," Fisher said. "That's enough to
get you on the radar."

Collin Wong, director of the state Bureau of Medicare Fraud and Elder
Abuse, said the investigation was a "garden-variety fraud case" that
stemmed from two complaints from business owners and law enforcement
that Fisher was prescribing medication for patients without a
good-faith medical examination.

Then came a series of overdose deaths involving OxyContin, the brand
name for oxycodone, a sustained release opioid prescribed for chronic
pain.

The drug first went on the market in 1995, the same year Fisher says
he started "treating pain appropriately" with opioids and other drugs.
"I had been ignoring people's pain and denigrating them for it," he
said. "Subconsciously or not, I had been shirking my duties as a doctor."

Fisher said his treatment and the high dosages he eventually
prescribed for some patients were completely within the limits of the
law. He "titrated" patients, or worked with them to find what
effectively killed their pain while allowing them to function.

Data from the federal Drug Enforcement Administration, which tracks
opioid prescriptions, showed that in 1998 the Miller's Shasta Pharmacy
filled prescriptions for 14,336 grams of OxyContin, mostly prescribed
by Fisher, Wong said.

Those high doses and the sheer volume of OxyContin prescriptions were
"red flags" to Medi-Cal investigators who looked at deaths in Shasta
County in which OxyContin was found in the bodies' systems and found
they had one thing in common, Wong said.

In each of the deaths, the prescription had been written by Fisher and
filled at the Redding pharmacy owned by Stephen and Madeline Miller.

State investigators took a look at Drug Enforcement Administration
data collected on all opioid prescriptions and became even more
suspicious when they learned that the pharmacy's Medi-Cal billings had
quadrupled over a short period of time and that in 1998 Stephen Miller
was the second-largest purchaser of OxyContin in the nation, Wong said.

Prosecutors described Fisher as a "Dr. Feelgood" who ran a "pill
mill."

Fisher said what investigators failed to understand -- or ignored --
was that pain can be safely treated with seemingly large opiate doses,
given proper titration and acquired tolerance.

Fisher's attorney, Patrick Hallinan of San Francisco, contended the
state's case boiled down to money. OxyContin is expensive, sometimes
costing $7 a pill as opposed to about 8 cents for a comparable dose of
methadone, according to testimony at Stephen Miller's recent pharmacy
board hearing.

"There isn't any question about it," Hallinan said. "It was costing
Medi-Cal too much money. He was treating poor people with rich
people's drugs," Hallinan said. "They realized Medi-Cal fraud wasn't
going to get them anywhere, so they came up with the big guns," the
murder charges.

Hallinan, Fisher and the Millers also allege that the state was so
desperate for a conviction, investigators and prosecutors skirted
rules and intimidated witnesses, all to help build their case.

"Whenever one of Frank's patients was in jail, they were there the
next day" pushing for statements against Fisher and the Millers,
Hallinan said.

Former Fisher patient Toni Briano, 40, and her boyfriend, D.J. Black,
41, both of Red Bluff, contend that after Fisher's arrest two
investigators turned off their tape recorder and threatened to cut off
their Medi-Cal benefits if they didn't "help take him (Fisher) down."

Wong bristles at the charge.

He was named to his position in 1999, he said, and since then has
presided over some 700 investigations.

"Since then, I can uncategorically (sic) state that these alleged
strong-arm tactics have never been used by this office," he said.

Wong maintained that the case was strong and shocking. Medical experts
told prosecutors that the level of Fisher's prescriptions "lacked
sound medical basis and constituted patient abuse," he said.

"When they say that, we have to act," adding that it's his office's
mission to protect the $32 billion Medi-Cal program ... not only to
protect the system and the money, but also to protect poor, disabled
patients."

The five murder charges filed against Fisher and the Millers, which
included one overdose on stolen drugs and a truck-crash death, were
"fruit of the poisoned tree," and demanded prosecution, he contended.

The five murder charges were reduced to three manslaughter counts
after the preliminary hearing and were dropped entirely for Madeline
Miller.

Shasta County Superior Court Judge Bradley Boeckman, weary of years of
delays, threw the case out entirely in 2003 after a new team of
prosecutors asked for another postponement.

Prosecutors said they would refile the charges, but changed their
minds after consulting anew with medical experts, Wong said.

They learned there had been "a dramatic shift" in medical science
regarding the use of OxyContin in the treatment of chronic,
intractable pain. Standard treatment had veered to allow larger doses
of the drug.

The shifting opinion was enough to leave jurors with reasonable doubt
about Fisher's culpability, Wong said.

He defends the original decision to prosecute Fisher and the Millers
by paraphrasing one expert who testified five years ago that he would
not expect to see the amount of OxyContin Fisher prescribed in Redding
unless there was a nuclear explosion.

"When they say nuclear explosion, we have to respond," Wong said.
"When they say the state of science has changed, we have to listen."