'CRIMINALS' CRESTFALLEN

Doctor And Pharmacy Owners Overcome Charges, Lose Footing

There's an old police saying -- "You might beat the rap, but you won't beat
the ride."

And the ride is far from over for a doctor and pharmacy owners busted by
drug agents almost six years ago in highly publicized dual raids of his
Anderson clinic and their Redding drug store.

Attorney General Bill Lockyer called a press conference to hail the murder,
drug trafficking and Medi-Cal fraud arrests of Dr. Frank Bensell Fisher,
pharmacist Stephen Miller and his wife, Madeline.

Fisher was one of the first doctors in the nation to be arrested for
overprescribing OxyContin, a powerful opioid analgesic later dubbed
"hillbilly heroin," that federal drug agents fear has reached epidemic
proportions among drug abusers, although few statistics are available.

"We're estimating that there were 3,000 patients (in Shasta County) taking
this drug (OxyContin)," Lockyer said at his press conference.

In fact, at the time of his arrest, Fisher said he was prescribing OxyContin
for 46 of his 3,000 active patients.

Four years later, Shasta County Superior Court Judge Bradley Boeckman threw
the trio's case out of court, citing delays.

Nobody called a press conference when the attorney general's office decided
earlier this year not to renew the charges, despite repeated vows from state
lawyers to re-file the case as soon as they had the proper documents in
hand.

Last month, in answer to a query from the Record Searchlight, attorney
general press secretary Hallye Jordan said a decision not to refile was made
"awhile back, before the misdemeanor trial" on a separate case.

State attorneys decided they wouldn't be able to sustain the more serious
charges and decided "in the interest of justice" not to refile, Jordan said.

Fallout lingers

The case had dwindled slowly away. First the murder counts disappeared --
reduced to manslaughter, then tossed out entirely with the rest of the
charges. When the Harvard-educated doctor was finally tried in May on
misdemeanor Medi-Cal fraud charges that predated the raid, he was acquitted.

Fisher's Westwood Walk-in Clinic in Anderson is long gone. He was held in
jail for five months, his bail set at $15 million before he was set free on
$50,000 bail, which also prohibited him from practicing medicine until the
case was resolved.

The Millers' Shasta Pharmacy is gone, too. In June, after they obtained a
court order, the state returned several hundred thousand dollars seized from
their banks when they were arrested.

They got the money too late to save their house from foreclosure.

"Life is just what happens next," Fisher said recently, as he searched for
words to describe the past five years.

"I've looked at people accused of murder -- then you find yourself among
them. It's not something you can imagine. I'm not sure I can convey it --
it's like some sort of time-space warp. It's incongruous, but from that
point on, it's your life."

A new reality

Now 51, Fisher said he has felt confident that he would prevail ever since
San Francisco attorney Patrick Hallinan took over his case in its early
stages.

But that confidence and his eventual exoneration didn't change reality.

"I've spent the second half of my 40s living in my parents' house in the
room where I grew up," Fisher said. "The photographs (from his youth) are
still on the wall."

He drives a 1988 Mercedes with 312,000 miles on the odometer, and on a
recent trip to Redding, his 1969 Buick Electra, "a big, elegant car,"
succumbed to "terminal" mechanical problems, Fisher said.

"It's gone, along with my youth, which has vanished," Fisher said during an
interview on June 30, his 51st birthday.

The Millers own a second house that they had rented out, but it took months
to evict the tenants for nonpayment of rent.

Since Shasta County marshals locked them out of their foreclosed home,
they've moved twice. First they camped in the back yard of a friend's
trailer-park home, where park owners quickly made it clear that the Miller's
five basset hounds and tent were unwelcome. Later, they moved to another
friend's Cottonwood ranch.

They spent their second wedding anniversary, April 19, 1999, in the Shasta
County jail.

Stephen Miller, now 54, had spent years building up business at his Westside
Road pharmacy, capturing trade from the closed county hospital, then adding
a post office contract and selling money orders.

"The idea that we did anything out of greed is ridiculous," Miller said
recently. "If anything, we were way too busy."

Dealing with the state

The Millers believe it was their work as patient advocates that attracted
law enforcement attention, an assertion state law enforcement officers
flatly deny.

Unlike most pharmacists, Stephen Miller would fill Medi-Cal patients'
prescriptions without waiting for state authorization, basically on credit,
he said.

And if the state rejected a prescription, Madeline Miller, now 50, showed
patients how to appeal, even accompanying one patient to a state hearing,
where the judge ordered the state to pay for the medicine.

That hearing was a month before their arrests and about 90 identical
prescription appeals were pending when agents closed their store, she said.

But Fisher was the prescribing doctor in many of those cases, and it was the
Millers' pharmacy that was filling the prescriptions. All those patient
records were seized during the state raids. The state rejected those claims,
the Millers said.

Now that the criminal charges are gone, the Millers would like to get back
to work. Stephen Miller recently applied for renewal of his pharmacy
license.

How long he'll be able to keep that license hasn't been decided. The state
pharmacy board, represented by attorneys from the attorney general's office,
is seeking to revoke it.

A series of hearings on the case was held in May and June in Redding and
written closing arguments are due within three weeks. A decision is expected
in October, the Millers said.

When the hearings began, the Millers, whose money was still being held by
the state, read a few books and tried to represent themselves.

"One arm of the government is prosecuting us while the other was holding our
assets, so we couldn't get legal representation," Madeline Miller said.

Although the state didn't release their money in time to save their house,
they were able to hire an attorney to represent them at the end of the
hearing and file the written brief.

The couple finally got their other house back recently after winning the
eviction battle.

Medical practice in doubt

Fisher, too, faces licensing problems.

Seven months after his arrest, the Division of Medical Quality for the
Medical Board of California filed a complaint seeking to revoke or suspend
his license, listing 39 causes for discipline stemming from allegedly
incompetent and negligent care of 15 patients.

But Friday, just as Fisher was hoping to settle the licensing case, it was
postponed. His new settlement conference is scheduled for December, with a
hearing in February.

Although his license is unrestricted pending the hearing, the continuing
investigation will pop up should he attempt to get a job.

"They've already prosecuted me twice on criminal charges, now I can't get
them to try me," Fisher said.

There are wrongful death suits, too, cases filed years ago after Fisher was
ordered to stand trial.

Two of those cases have been dismissed, said San Francisco attorney James
Goodman, who represents Fisher in the civil cases. Goodman predicted that
the other two also would be dismissed.

"They were all filed because they thought it would be easy to ride on the
coattails of the criminal case," Goodman said.

Even if he does keep his license and the civil cases go away, Fisher's
worries aren't over.

His parents, Frank and Joan Fisher of El Cerrito, are "getting towards 80,"
and contributed more than $100,000 to his defense, Fisher said.

While his personal income, at least on paper, was more than $200,000
annually before he was arrested, Fisher said he was putting big portions of
that back into his practice and a dental clinic for low-income people that
he had planned to open across the street.

"My net worth apart from the clinic was about $50,000, and I was just
starting to save for retirement," he said.

"The biggest thing I lost was the sense of community I felt every day at my
clinic," said Fisher, who would like to open another clinic some day.

But he's realistic about the future.

"Trying to get malpractice insurance? Wish me luck," he shrugged. "I'll be
explaining myself at every step for the rest of my life."

It's bitter medicine for a Harvard graduate who credits his alma mater's
emphasis on social policy for his decision to work with disadvantaged
patients.

Fisher's brother Art of Larkspur, 14 months his junior, is a nonpracticing
attorney who now edits a surfing magazine. Art Fisher said his brother's
accusers may have succeeded, after all.

"They had a profound impact," Art Fisher said. "There wasn't a conviction,
but it was widely publicized; and they may have got what they were after
there."

"The process is the punishment," said Siobhan Reynolds, founder of the
patients' advocate group Pain Relief Network. "You don't have to lose one of
these things if you treat pain."

"You go from community health doctor to murderer just like that," Frank
Fisher said. "If anything, it's put me more into the here and now."

Fisher said he is determined to help "fix the system," which he translates
into returning doctors to control over medical decisions. He works with
patient groups, doctors and others who lobby for nationwide reforms that
would protect prescribing doctors.

"I think it's boiling to the surface," Fisher said. "It's on the horizon --
the end of the war on drugs and people who prescribe them. It's all about
giving medicine back to science."