On Delivering One’s Wife
to Federal Prison



06/07/2006

Dear pain management advocates of the listServs of the Pain Relief Network (PRN), National Foundation for the Treatment of Pain (NFTP), and Our Chronic Pain Mission (OCPM),



Deborah is now in custody of the BOP, Alderson WV. She had to report on June 5, 2006. This is a black day for us here.

I am very thankful of your indulgence in allowing me to lurk on this site, and would be very appreciative of the opportunity to expound on my personal feelings concerning the war on Physicians and Pain Patients.

Yesterday on June 5th, at high-noon, I had to deliver up my wife, Dr. Deborah Bordeaux, to the BOP authorities at FPC Alderson, WV. Had it not been for the extremely supportive and heroic measures of Siobhan and PRN, as well as her Attorneys, it would have no doubt been sooner and for a longer period of time, although 2 years will seem as eternity.

It is not often that I open my feelings, but the overwhelming gratitude and affection I feel for you cannot be held silent. I am painfully aware of the sacrifices you have made to afford us some comfort in our time of need. It will never be forgotten, and will eternally remain in our hearts.

To ensure aid to you friends and colleagues as you have, is to ensure a boundary of right, which enables us to render to every person without distinction his just due. This is a virtue that is not only consistent with Divine and human law, but is the very cement and support of a civil society.

Love, in a great measure constitutes people that are real and good. These principles have served to forge our societies from the days of the wisdoms of King Solomon, to the foundations of modern man, guided by fortitude, temperance, prudence, and mercy. Fortitude for a noble and steady purpose of mind, Temperance to practice due restraint, Prudence to dictate our reason, and Mercy to give, so that from our Creator, mercy we might receive. Truth is a Divine attribute, and being true to your friends and colleagues will surely help pave the way for you, when you enter that house not made with human hands, eternal in the Heavens.

We will stay in touch, wherever life may lead us, and if ever we can be of help to you or your loved ones, all that we have will be at your disposal. Hopefully someday we can repay you for your support and kindness, and our prayers will be of your health and happiness.

Yesterday was the darkest day of my life, as I sacrificed my wife, and she her freedom, a noble and brave soul and fine Physician, to this crazy war on Physicians and Pain Patients. Siobhan, keep the good fight, and know we love you!

May you all be blessed, and may peace be with you forever,

-- Ed Swaim (Dr. Deborah Bordeaux' husband), 2006-06-06



Here is the address to write to Dr. Deborah Bordeaux while she resides at Federal Prison Camp Alderson (until June, 2008):

Dr. Deborah S. Bordeaux 99069-071
FPC Alderson Federal Prison Camp
Glen Ray Road, Box A
Alderson, West Virginia 24910





Convictions Stay for Pain Clinic



Feb 2006 - A federal appeals court has upheld the convictions of three former doctors for their role in a drug fraud scheme carried out at a now-closed Myrtle Beach drug clinic several years ago.

The U.S. 4th Circuit Court of Appeals, however, ruled Thursday that the punishment meted out to defendants Michael Jackson, Ricardo Alerre and Deborah Bordeaux was unfair and remanded it to the federal court in Florence for re-sentencing.

The doctors were all convicted of multiple counts of drug distribution, drug conspiracy and money-laundering conspiracy while practicing at the Comprehensive Care and Pain Management Center.

The trio had sought to overturn their convictions on the grounds that their lawyers were incompetent and engaged in prejudicial misconduct.

They also argued that the evidence presented at their trial two years ago did not support their convictions on money laundering.

In their decision, the judges ruled the defendants "do not point to any specific trial error that prejudiced them" or anything that was "improperly introduced" in their contention that they were tried for civil malpractice and not criminal distribution of drugs.

"They are unable to show that a substandard performance by their lawyers conclusively appears from the record, and they have also failed to demonstrate that the prosecutors engaged in any improper conduct relating to the standard of proof or their use of evidence," according to the court document.

The defendants were charged with and convicted of conspiring to commit money laundering, the ruling says.

Siobhan Reynolds of Pain Relief Network, who has followed the case closely, blasted this latest court decision, adding that it has a "horrible, chilling effect on the treatment" of using drugs in South Carolina. Reynolds, president of the New York-based group that advocates making pain care available to Americans, assailed the government for attempting to take control of medicine by using federal criminal statutes.





South Carolina Pain Doctors Lose Appeal
But Get New Sentencing Hearings



12/9/05 http://stopthedrugwar.org/chronicle/414/drbordeaux.shtml - Three South Carolina physicians convicted of drug distribution and money-laundering conspiracy charges for what the federal government described as unwarranted prescribing of opioid pain relievers at their pain management clinic failed to get their convictions overturned, but will be entitled to new sentencing hearings.

Drs. Deborah Bordeaux, Ricardo Alerre and Michael Jackson ran the Comprehensive Care and Pain Management Center in Myrtle Beach until they were arrested in 2003. Prosecutors described the practice as "a front" for drug dealing. Bordeaux was sentenced to 24 years, Alerre to 19 years, and Jackson to eight years.

While the doctors argued on appeal that attorneys for both defense and prosecution had confused the standards for civil malpractice and criminal liability, a three-judge US 4th Circuit Court of Appeals panel in Richmond rejected that claim. "The jury entered its deliberations armed with ample admissible evidence and with proper instructions on the applicable legal principles," Judge Robert King wrote in the unanimous opinion.

But the court ruled that they were entitled to be resentenced after even the prosecution acknowledged that the Supreme Courts' ruling earlier this year in the Booker and Fan Fan cases required it. In that ruling, the Supreme Court threw out mandatory federal sentencing guidelines.

The doctors for their part have maintained that they were following accepted medical practice for prescribing opioids for chronic pain management -- as have advocates, including the Pain Relief Network. Bordeaux and others are among a growing number of physicians across the country who have been prosecuted or investigated as the DEA attempts to clamp down on prescription drug abuse.





UNITED STATES V. DEBORAH S. BORDEAUX, M.D.



Deborah S. Bordeaux, M.D. was tried and convicted of distributing controlled substances in violation of the Controlled Substances Act (CSA) after working less than three months at a South Carolina pain treatment clinic.

Dr. Bordeaux, a temporary employee, passed through the clinic shortly after the clinic had come to the attention of the Drug Enforcement Administration (DEA) but well before the bulk of the investigation was completed.

Nine physicians were indicted overall. Five physicians entered into plea agreements and testified against their medical colleagues at trial. A sixth physician also pled guilty but committed suicide before trial.

The remaining three physicians, including Dr. Bordeaux, went to trial. All three were convicted. Dr. Bordeaux, who is now facing sentencing and lengthy imprisonment, continues to maintain her innocence.

Mr. Stutsman was hired by the Pain Relief Network (PRN), a non-profit organization, to develop Dr. Bordeaux's appeal as a test case and, in so doing, to lay the groundwork for improved defense strategies nationwide.

Sentencing was held February 17, 2004 in Florence, South Carolina. Although the federal government recommended imposition of a 100 year sentence, Dr. Bordeaux was sentenced to eight years and one month. Dr. Bordeaux's notice of appeal has been filed.

On March 15, 2004, Mr. Stutsman argued a motion urging the federal district court to allow Dr. Bordeaux to remain free pending her appeal. That motion has not yet been decided.

Dr. Bordeaux's trial and conviction is typical of the many DEA investigations and prosecutions that today seek criminal convictions based upon the wrong legal standard.

Review of the 11 day trial transcript reveals that Dr. Bordeaux was prosecuted under the medical malpractice standard familiar to physicians and attorneys as the "standard of care." The correct legal standard in a criminal proceeding under the CSA is, however, the "course of professional practice," not the civil standard of care.

Review of the trial transcript further exposes the DEA's complete confusion over the applicable legal standard. One fascinating yet painful aspect of Dr. Bordeaux's trial is that only the federal district court judge correctly understood that the course of professional practice standard was a different legal standard than the civil standard of care.

Puzzled by so much civil standard of care evidence in a criminal proceeding, and hearing no objections from the defense lawyers, judge Weston C. Houck raised his own objections. The federal prosecutor resisted and, unfortunately, the defense lawyers either agreed with the federal prosecutor, or they remained silent. Judge Houck raised his objections many times and his frustration is evident from the Annotated Excerpts of Trial Transcript made available elsewhere on this website.

Dr. Bordeaux's appeal is a test case challenging the DEA's prosecution strategies and tactics. Legal briefing is currently underway. The case will be argued and decided later this year.





UPDATE ON DR. BORDEAUX'S CASE


3/14/2004

Dear All,

I'm in Florence, South Carolina awaiting tomorrow's hearing on Dr. Bordeaux's motion for release pending appeal. Eli D. Stutsman, the attorney I hired (PRN has hired) for Dr. Bordeaux following her mistaken conviction, has prepared a solid argument and she meets all the criteria for the judge to have the discretion to leave her out as we argue her case in the 4th Circuit, and, if necessary, beyond.

The most important criteria is whether or not a substantial question of law is at issue in the appeal. In her case (and this transfers over to all the defendants in Comprehensive Care) there is indeed a substantial issue of law.

Apparently the DOJ and DEA tried and convicted her on standard of care evidence (their expert says he wouldn't have prescribed that pill to that person at that time) rather than on the right kind of evidence (that there was evidence of her dealing drugs or something like that, which of course there was not). Further, her counsel was ineffective because they failed to provide her with the defense she is entitled to under the Controlled Substances Act, i.e., that the prescribing in question was in the course of her professional practice, a defense which calls upon the government to show that it was not.

Both the defense and the prosecution got into a debate about whether the prescribing was medically necessary and such. This is a civil notion having to do with reimbursement and is not relevant to a criminal proceeding.

During the trial Judge Houck asked Bill Day the prosecutor if the phrase "medically necessary" was in the statute. The prosecutor replied, "Yes, sir. We tracked the statute in the indictment. If it's medically necessary, they haven't done anything wrong. If it's not medically necessary, they are drug dealing. So that's a huge issue, your honor. It could be the whole issue."

The problem for the U.S. is that the statute nowhere mentions medically necessary, and medical necessity is not at all similar to the course of professional practice standard.

The DEA was not empowered by congress to regulate medical practice. The CSA does not require the physician's prescribing to be medically necessary nor, as Karen Tandy recently mischaracterized her agency's mandate, that the prescribing has to be within medical norms. The CSA was intended to punish doctors who are drug dealing, not doctors who are practicing progressive medicine.

So, of course, the pressure is indescribable. We hope that the judge will allow Dr. Bordeaux to remain out while we fight for the autonomy of medical practice in the 50 United States, free of imperatives imposed by a politically motivated federal government.

Siobhan

Family Member of a Chronic Pain Patient
Founding Executive Director
PRN
www.PainReliefNetwork.org
"Standing up for patients in pain and the doctors who treat them"






A War Against Humanity



Mary is perpetuating the myth that one can be safe by obeying the law and following guidelines, standards, rules. This is the same as saying you cannot get into trouble unless you are doing something wrong.

What a dangerous lady she has become! This is the storyline the DEA would have doctors believe, because it makes every physician in America even easier prey and at risk for arrest for every controlled substance prescription written within at least the past two years.

The DEA agents in South Carolina falsify documents and lie under oath. Physicians do not stand a chance against predators whose sole job, basis for promotion, and greatest desire in life is to prosecute them. If one patient gets into trouble, or even someone who is related to a patient, the opportunity arises for prosecution of the physician. I'm sure they teach this as a step-wise process, from which they can back down early on if challenged by competent legal counsel.

In at least one case, the DEA refused to grant a change of address, instead, delivering a letter stating that controlled substances could not be written from the new location until a modified certificate with the new address was received. The DEA group supervisor who hand-delivered the letter admitted she had already received the request for a change of address and it would "Not be granted any time soon."

The typical threats of certificate revocation continue until the DEA is satisfied they have arrested someone with a connection to a prescription, who can also memorize at least part of their stilted script. They issue an 'order to show cause and immediate suspension of registration' and then ignore everything said or done by the typical attorney who has never before represented a physician against the DEA, and thereby prove to both the doctor and the lawyer that the DEA is above the law. Then they offer deal after deal while they drag things out for a year or two before indictment to insure sufficient loss of income to prevent the physician from ever mounting an adequate defense, all the while, they are methodically and maliciously molding local sentiment and suspicion against the not yet formally accused and his or her suspect patients.

It is easy enough to damage a medical practice or a physician in the community when the DEA places articles in the newspapers, as they admit to having done in South Carolina. There is no public outcry when an already wounded physician is destroyed in court. There is no jury of one's peers, as with a medical board. Reality is a jury of questionably literate, mostly unemployed, intermittently sleeping people who have no idea of what constitutes a prescription written for a legitimate medical purpose in the usual course of professional practice. The jurors are startled awake when the prosecutor literally trips over his own feet and gasps "Ahhh," and they know he's made another good point against the bad doctor.

When you lose your DEA registration, no other physician will take more than one or two of your patients before the DEA arrives at his office with threats. After you have been arrested, no other physician will even talk with you on the telephone. Your patients lose.You lose. Writing controlled substance prescriptions for pain patients is accompanied by the very real risk of losing your practice, losing your patients, losing your friends and family, and losing your freedom - losing everything that was your life. There is no safe way to do it. Physicians have become personally responsible for each medication-related action of every patient, including carelessness, gullibility, vulnerability, and susceptibility to entrapment. Prescribing controlled substances has become the most dangerous activity most physicians will ever perform. Fear and dread will ultimately lead to the cold, hard, indifference to suffering necessary for self-preservation of every rational physician.

A misplaced and delusional faith in the American judicial system is not an appropriate response to current events and the perilous, prevailing atmosphere of physician persecution in America. This is a war against humanity, both individual and collective. Mary should tell it like it is, or say nothing at all.

Deborah Bordeaux, M.D.







We Have To Stop the War on Doctors Who Treat Pain

Myrtle Beach, S.C. June 26, 2002


The doctor is a pleasant-faced woman. She stands by her front door on a hot summer morning, her young son against her leg. Her husband stands in the doorway behind her, completing what should be an ordinary family moment. But the doctor's wrists are cuffed behind her back. Her legs are shackled. The child is not leaning into her as he usually does, for closeness and support. He is crying, clinging, shrieking. The father's face is gray as he steps into the sun and lifts the child away. The doctor-mother disappears into the back of one of three squad cars that had pulled up only minutes before.

She is a doctor who has treated pain using Oxycontin and other medications. She will go to jail today for that. This is a pain that she can't make go away.

Deborah Bordeaux, M.D., board-certified in family medicine will be arraigned today in Charleston, S.C.. She is my pro bono client. We had seen her indictment coming, but had not been prepared for the stark, brutal manner with which it was carried out. I am not a criminal lawyer; this is my first experience with the hard details of an arrest, as it is hers.

A week ago I flew down to meet with the US attorney for that part of South Carolina in a last effort to avoid indictment. "Come on," he said, but I'll be hard to convince. We worked the day before, packaging facts that disputed every element of her 'wrong-doing' that the DEA had given out. She had never even seen many of the patients they named. One she had seen, whose death was mentioned, had died over a year and eight doctors later than her two clinic visits with him.

We brought the affidavits of patients whom she had treated with care, for whom she had been 'the first doctor who paid any attention to me'. We explained again that she had only worked at the clinic for 57 days. That she terminated patients who seemed to be abusing their pain medicine or faking their pain. That she kept a list of patients she would not see again even if they were accepted by other clinic doctors. The prosecuting attorney and the three DEA agents who heard us out, were dismissive. "You don't understand" they said. "She isn't going to be indicted on that evidence". "Oh," we said, "what evidence would you use?" "We won't tell you."

We will find out when we see the indictment today. Sometime soon the government will have to give out the 'tons of evidence' they claim to have. She may, I suppose, even be convicted (mix media frenzy) over "Oxycontin, the hillbilly heroin" and the manipulable conservatism of a South Carolina jury and it could happen. But I do know this, Deborah Bordeaux will not plead guilty. She treated clinic patients in good faith and treated them well.

The investigation into the pain clinic where she worked briefly has been going on for a long time. She had met repeatedly with the DEA, the first time only days after she quit the clinic. Voluntarily, freely and frankly, without asking for promises or deals. Deals have been offered. Everyone advised her to take one."Just plead guilty to something small". "Get this behind you." "Johnny's too young." (Husband) Ed's too sick. She says "Show me how I have broken any law and I will plead." She has a gentle, steel-hard determination not to tarnish herself or her son with a plea otherwise. Her husband agrees. He is sick enough to have received a settlement on his life insurance, but he still agrees. He knows who she is.

The War on Drugs has become a war on doctors who treat pain with opioids. Oxycontin, morphine, methadone (yes, it is a good pain medicine and cheap to boot). I am not talking about doctors who trade sex for drugs or sell scripts. I am talking about doctors who treat difficult patients who have difficult lives and severe, persistent pain. These target doctors are not protected by the academic medical centers. They have a lot to lose. For every Dr. Bordeaux there are probably dozens of doctors who simply stop prescribing these medications when the state medical board or the DEA come with questions or the pharmacist mutters about 'high doses'. I have talked with too many of these doctors. I hate it when they abandon their patients under pressure. At least, however, they acknowledge the pain.

For every doctor who backs fearfully out of pain management, there are hundreds who refuse to start because they just don't want to take the risk. That is why another of my clients is the son of a 74-year old man who suffered weeks of agony before his fast-moving cancer killed him. His oncologist refused to provide anything stronger than Tylenol. She said, "I don't want him to die an addict and I will not risk a pill bottle with my name on it turning up on the street."

This has to stop. It is as simple as that.

On paper, at the top levels, in the cool of a Washington D.C. press conference, DEA Administrator Hutchinson uses all of the right buzz words to encourage pain management. http://www.deadiversion.usdoj.gov/pubs/pressrel/newsrel_102301.pdf

In the field, the reality is starkly different. It will continue that way as long as the medical profession goes along, distancing themselves from doctors who are threatened and harassed. It will continue as long as the patients don't know enough about their alternatives. All of us who advocate for good medicine have to make it stop. One of the ways to do that is to take a stand, to acknowlege that bad things happen to good doctors, and insist that the nice words mean something.

Mary Baluss, Esq.
The Pain Law Initiative
[email protected]







MB clinic doctors guilty

By Kenneth A. Gailliard
The Sun News
Tue, Feb. 11, 2003
http://www.myrtlebeachonline.com/mld/myrtlebeachonline/5153033.htm

Three former Myrtle Beach doctors were found guilty of illegally distributing narcotics, including OxyContin, by a federal jury Monday.

It took the jury about seven hours to reach its decision, which the defendants received in stunned silence.

Jurors convicted Michael Jackson, Deborah Bordeaux and Ricardo Alerre on a variety of charges stemming from a June 2001 federal indictment, but spared them conspiracy to distribute controlled substances resulting in serious bodily harm, the one charge that would have made each eligible for life in prison.

All three defendants were found guilty of conspiracy to unlawfully distribute and dispense controlled substances and conspiracy to launder money. In addition, each was charged with specific counts of distribution of Oxycodone. Jackson was found guilty of five counts, Bordeaux of three and Alerre guilty of seven, but not guilty of one.

Based on the charges, Alerre could face up to 180 years in prison if the sentences run consecutively, Jackson, 140, and Bordeaux, 100.

The sentences will be decided in a hearing, which is expected in about 60 days.

Meanwhile, Judge Weston Houck decided to allow each defendant to remain free on bond, in spite of a request from Assistant U.S. Attorney William E. Day II their bonds be revoked.

Houck continued the bonds because the defendants will not endanger the community, he said.

"None of them have criminal records," he said. "And they have lost their licenses to dispense drugs."

Jackson, Alerre and Bordeaux, along with five other doctors and three employees from the pain clinic, were charged in a 93-count federal indictment.

The other doctors and employees have pleaded guilty and testified against Alerre, Bordeaux and Jackson.

Before leaving the courtroom, the defendants hugged each other and family members, some of whom were crying.

Each defendant, including Jackson, who spent much of the deliberation period reading a Bible and praying, declined comment.

"I'm hugely disappointed," Bordeaux's lawyer Scott Joye said afterward.

William Diggs, Jackson's lawyer, said he didn't think the prosecution had a good day during the two-week trial.

Day, on the other hand, said, "The jury did a great job, and the verdict was just."

Prosecutors have said the doctors understood they were writing prescriptions for strong painkillers after performing little or no medical exams, and ordered unnecessary medical tests.

Defense lawyers said their clients didn't issue prescriptions to violate the law but in good faith efforts to help patients who lied about pain.

It's uncertain what impact the case may have on pain management doctors statewide.

"I don't think it will have much impact," said Eldon Wedlock a law professor at the University of South Carolina. "I don't think many doctors would do this."

However, prosecutors think the successful prosecution may deter similar instances in the future.

"I hope this sends out a message to people who abuse controlled substances and doctor's offices that prescribe them that we won't tolerate this," Day said.

Sentences will be decided at a later date.

The jury will meet Feb. 20 to decide what, if any, of the defendants' property must be seized by authorities.

------------------------------------------------------------------------

Contact KENNETH A. GAILLIARD at 626-0312 or [email protected]



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