Panel seeks opinion on physician’s flier
July 8, 2006 - The Arkansas State Medical Board voted Friday to request an outside opinion about whether a doctor’s notice to his patients is within the scope and practice of medicine.
Requesting such an opinion is the first step in deciding whether to sanction Dr. Robert Kale.
A flier distributed in Kale’s office urged patients to attend the board’s hearing of Dr. Randeep Mann. Mann faced accusations of prescribing excessive amounts of narcotic pain relievers, such as methadone and OxyContin.
Kale, who specializes in pain management, strongly advocates for doctors’ ability to prescribe medications they believe are adequate to control pain.
“Patients who do not attend the hearing on that day,” the flier states, “are subject to review by Dr. Kale, who may choose to dismiss them from the practice at that time.”
The flier, as well as a letter Kale issued to patients, raised concerns among board members that the doctor was threatening to withhold medical care on the basis of attendance at the hearing this week.
Kale said in a phone conversation Friday with the Arkansas Democrat-Gazette that he wasn’t threatening to withhold care from his patients.
The flier indicates that “they’re subject to review,” he said. “They’re always subject to review.”
In June 2003, the board found Kale, who formerly practiced in Fort Smith, in violation of the Medical Practices Act and suspended his medical license. The Arkansas board later reinstated it. He now practices in Roland, Okla. “The Arkansas Medical Board has systematically suppressed medical treatment for chronic pain,” he wrote in the letter.
“I gave up 3 / 2 years of my medical career to fight this battle for you and you can certainly give up at least one day and maybe several others to attend this meeting,” he wrote.
Dr. Kale vs. the drug warriors
Oxycontin is not the problem, he says. ‘The DEA is the problem.’
12/15/2005 FORT SMITH – This is Dr. Robert Kale discussing the drug problem in America:
“The drug problem has gotten worse since the inception of the DEA [federal Drug Enforcement Administration]. The pressure they put on caused an increase in price. When that happened, a whole bunch of entrepreneurs got in the business, just like Prohibition. Drugs hadn’t been rampant in the schools before the DEA. In the ’60s, amphetamines were widely available, but they weren’t used recreationally. They were used to lose weight. Truck drivers used them to stay awake. [So did college students cramming for tests.]
“Congress told the DEA, ‘You’re not making a difference.’ The DEA needed something it could be effective on. So about 2001 or 2002, they designated Oxycontin as the number-one drug problem in the country.” Oxycontin is a pain-relieving drug, one of a group known as “opioids,” that is prescribed by doctors. “Look in the paper at the drug arrests. You’ll see methamphetamine, marijuana, cocaine and heroin arrests. And a lot of those are just from random stops on the highway. There’s no telling the amount of illegal drugs that never get caught. Much less often do you see arrests involving prescription drugs, and when you do, it’s usually in combination with nonprescription drugs.
“Meth is the big problem, not Oxycontin. But the DEA likes to go after doctors, not the people making meth. Doctors are in air-conditioned offices, and they don’t carry guns. That’s a lot better than going out in tick-infested woods looking for somebody who may be armed and hostile. Also, doctors are easily intimidated. So DEA, being the cowards and scum that they are, goes after doctors instead.”
In the end, it turns out there’s an even bigger drug problem than meth. “The DEA is the problem. The DEA is out to prevent legitimate patients from getting legitimate prescriptions from legitimate physicians.”
The DEA has certainly been a problem for Kale, a Fort Smith pain management physician who’s no longer practicing. A couple of years ago, after the state Medical Board had suspended his license, thus denying him the right to prescribe drugs in Arkansas, and the DEA took away his DEA registration, thus denying him the right to prescribe controlled drugs anywhere. Even when the Medical Board found him innocent of drug violations and restored his license, the lack of a DEA registration effectively kept him out of business. “A pain management doctor can’t open a practice and not prescribe pain medicine.” Last month, the DEA returned his registration, having held it for 22 months after the Medical Board had reinstated him. He can (Voluble on most subjects, Kale is rather tight-lipped, and vague, when asked how he’s been getting by without his medical practice. “We’ve been selling a lot of things,” he said, and “I have a small disability.” Perhaps he had a lot saved up, although he said that he only saw 15 patients a day — believing he couldn’t do justice to more — and therefore made less than $50,000 a year. “What doctor does that?”)
Kale’s opinion of the Medical Board, and especially its chairman, Dr. W. Ray Jouett of Little Rock, is similar to his opinion of the DEA. He said that like most doctors these days, the doctors on the Medical Board work for insurers, since it’s insurers who pay for treatment. “I’m one of the last few doctors in this world that believes I work for the patient,” he said. The Medical Board is hostile to pain management physicians, he said, because pain management physicians diagnose chronic pain in their patients and prescribe long-term treatment. Insurance companies don’t want to hear about long-term treatment, much less pay for it, Kale said.
Kale is 53, intense and outspoken. He’s from Ohio and got his medical degree at Ohio State University, after which he served six years in the Navy. He’s an anesthesiologist trained in pain management, he said, and he was recruited to this area to start an anesthesia program at Crawford Hospital in Van Buren. He worked as an operating room anesthesiologist until he had to leave the o.r. because of back trouble. In 1995, he opened a pain management office. His practice included acupuncture, which he’d studied and which he says is effective on certain kinds of pain.
Some doctors are skeptical of their patients’ complaints, and are encouraged in their skepticism by the insurance companies, Kale said.
“A pain management doctor has to believe the patient when he says he’s in pain. Otherwise, I can’t be any good to him. I trust my patients. The patient has to keep records, he has to keep track of the pills he gets. He can’t do that if he’s abusing drugs.”
In 2002, the Medical Board charged Dr. Kale with over-prescribing controlled substances and suspended his license. Then, according to the doctor, a DEA agent persuaded him to surrender his DEA registration, through trickery, not mentioning that he had a right to a hearing nor saying anything about possible DEA charges against him. He says he was told over a year later that he had given up his registration “in lieu of DEA charges and prosecutions.”
Kale said the complaint that brought him before the Medical Board came from Dillard’s, the department store chain headquartered in Little Rock.
“Dillard’s wrote a complaint on me on a worker’s comp patient. They sent a nurse to tell me they didn’t want her [the patient] to get this expensive medication anymore. Her life was much better with the medication, but it was costing $1,000 a month.” The Dillard’s nurse said he was overdosing and told his nurse that if he didn’t stop, he’d be in trouble with the Medical Board, he said. “Two weeks later, the Medical Board issued a subpoena.”
The Medical Board eventually dropped the over-prescription charge, but found Kale guilty of violating a board regulation that requires pain management programs to offer interdisciplinary services, such as psychiatric and occupational therapy. A circuit court upheld the board’s finding. Kale is appealing to a higher court. The board restored his license unconditionally and allowed him to apply for reinstatement of his DEA registration. He did apply, but the DEA took no action on the application for 22 months, he said, other than asking him to sign agreements that would have been virtual admissions of guilt. Kale said the DEA claimed it had evidence that Kale patients had diverted drugs — that is, sold to others drugs that had been prescribed for themselves. Kale said there was no diversion.
In the meantime, Kale was demanding investigations of DEA agents he felt had abused him, including the one he said tricked him into giving up his DEA registration, Chris Anderson. Because of these demands, and his refusal to sign agreements the DEA asked him to sign, the agency had a vendetta against him, he said, and that’s why it held his registration so long after the Medical Board had cleared him of all drug charges. Also, the DEA needs to justify its existence, and doctors are easy prey, he said.
Kale’s patients sprang to his defense, as much as their pain allowed, in his confrontation with the Medical Board. Among them were 15 nuns, the sisters of St. Scholastica Monastery in Fort Smith, who wrote: “We experience Dr. Kale as a compassionate physician who is available to relieve those in pain. … Dr. Kale is a credit to the medical profession and the Fort Smith area. … He has even come to the Monastery on Sundays to treat our Sisters.”
Another correspondent, who addressed her letter to “Roy Juett,” was more belligerent: “I understand that you’re a doctor of some sort but from what I hear and read you don’t deserve that address in front of your name so I’m going to call you Roy. … I only hope and pray that one day you will suffer from chronic pain and there will be no Pain Management Doctors left to help you. I hope you can sleep at night knowing all the pain and suffering hundreds of people are going through because of you.”
The Medical Board’s files include one letter from a former Kale patient who was less than complimentary: “At one time he had me taking 60 mlg. of oxycontin daily … I was sleeping my life away and when I weaned myself down I went 48 hours without urinating and I went to the emergency room for help and ended up locked up in a de-tox ward. … After that horrible day, ‘Dr.’ Kale didn’t want to see me anymore …”
That the Medical Board cleared him of any drug charges is a great tribute, considering that the board is biased against pain management physicians, Kale said.
“Jouett has made his life [performing surgery] on people with back pains. He’s the medical director for Tyson Foods. He’ll tell you that none of his patients have pain except the people who are trying to get out of work. Pain management physicians came along in the ’90s. The AMA [American Medical Association] was saying that pain is undertreated in this country, and that meds can be used long-term. Before, a person in chronic pain just wasn’t treated. Pain management physicians began to testify that 40 to 60 percent of people who have back surgery have pain afterward. They can function only if you treat the pain. Suddenly, we’re a threat to doctors like Jouett.”
The Times sought comment from Jouett. He did not return phone calls. A Medical Board employee suggested that a reporter talk to William H. Trice III, the board’s attorney, rather than Jouett.
(The Medical Board never yields information easily. Dr. Sidney Wolfe, director of the health research group of Public Citizen, the consumer advocacy group headquartered in Washington, once wrote: “Arkansas’ medical board seems bound and determined to shield doctors from adequate public scrutiny. Patients have to mail requests to the board or go to its office in Little Rock to get any information on their doctors’ histories. That’s an unnecessary burden, and it is likely that most patients are unaware if their doctors have been disciplined.” The procedure Wolfe described is still in effect. A reporter had to make an appointment several days in advance in order to look at the medical board’s file on Kale.)
Trice was asked if the board had a policy on pain management physicians. “It depends on what you mean by a policy. The board has regulations. Some patients need temporary pain treatment. If you’re going to treat pain for longer than six months, you have to monitor the treatment and comply with certain other requirements. Some patients choose to abuse the medication. Sometimes a patient’s pain is relieved, but the treatment is such that the patient is no longer functional. That does no good.”
Getting his license and his DEA registration back is not enough for Dr. Kale. He wants the Medical Board to resign. He’s also filed a suit against the board in federal court for its alleged mistreatment of him. He wants a hearing before the DEA on his complaints against DEA agents, and he’s filed a federal suit against Chris Anderson, the DEA agent he alleges misled him into surrendering his DEA registration. A DEA spokesman in Little Rock said that because of that lawsuit, the DEA would have no comment on Kale and his allegations.
“My father was a railroad worker with an eighth-grade education,” Kale said. “For his son to become a doctor was the American dream. I’ll fight to keep my reputation.”
His business is relieving pain, but he hopes to inflict some too.
Three years later,
still locked in legal tussle
Dec 2005 — First things first.
Even the Arkansas State Medical Board
that suspended him in 2002 now agrees Dr.
Robert L. Kale is no over-prescribing pill
The suspension temporarily revoked Kale’s
prescription privileges, an action he says put his
small pain management clinic out of business.
At the time, Kale voluntarily surrendered his
Drug Enforcement Agency license. The DEA
has yet to reinstate his license, even though
the Board in 2003 cleared the Fort Smith based
pain management specialist of all but
an administrative violation that was not part of
their original over-prescription charges.
More than three years of Board hearings and
legal battles after his
suspension, Kale has
yet to return to practice
and his reputation
This translates as a
for the Medical Board,
as Kale addresses his
grievances with them in
both State and Federal
courts. In addition to
Kale’s sustained appeal of their ruling, the
Board now faces charges of defamation and
abuse of civil rights.
This August, Kale unsuccessfully appealed
the Board’s ruling on Regulation 19, which
defines Arkansas’ parameters of a pain
management program, in Sebastian County
Circuit Court. His lawyer, Chip Sexton,
says they plan to appeal that decision in the
Arkansas State Court of Appeals and all the
way to the Supreme Court, if needed.
Then, without a lawyer, Kale filed a
separate defamation and civil rights suit in
Federal court against individual members
of the Arkansas Medical Board who ruled
against him. The suit alleges that the Board
violated Kale’s First, Fifth, and Fourteenth
Amendment rights, and that their actions
were non-compliant with the Board’s internal
rules and regulations, thus nullifying their
immunity from prosecution. The suit also says
Board chairman Dr. W. Ray Jouett publicly
defamed Kale in a Fort Smith newscast.
In the 2002 broadcast segment, which
began with a discussion of Kale, Jouett made
the comment, “The doctor is causing this
individual to become dependent. That’s part
of it. The second part of it is that there are a
great number of drug seekers that utilize the
physicians and then sell them on the street.”
Bill Trice, lawyer and spokesperson for the
Board, argued that the comment was meant
generally rather than specifically to Kale. The
Board has filed a motion to dismiss in this
case, arguing that the federal suit involves the
same things as his appeal in State court, and
that Kale has not exhausted his remedies in
the lower courts.
Kale says no one has accused him or his
patients of diversion. He theorizes that the
Board punished him for being bold enough
to prescribe adequate levels of drugs such as
Oxycontin and methadone to treat his patients’
pain, and because he publicly spoke against
the Board and called for Jouett’s resignation
days before they decided to suspend him.
In July 2002 Kale spoke to a group on
the steps of the State Capitol about the need
for an Intractable Pain Act, and in the course
of his speech, called for Jouett’s resignation,
citing gross mismanagement, under-education
about the current state of pain care, and a
professional conflict of interest (he also serves
as medical director for Tyson Foods).
Two weeks later, the Board issued an
emergency suspension for Kale in response to
a complaint from Dillard’s Corporation that he
was over-prescribing drugs that cost upwards
of $1,000 per month to one of their employees
on Worker’s Compensation.
“You’ve got to understand,” Kale said,
“I’d had no patient deaths, no patient injuries,
no patient complaints. This was not about
doing the right thing by my patients. It’s
about money and about slapping me back into
“The Board’s been through with this case
for several years now,” Trice says. “He had a
two-day hearing. And he appealed and he lost.
He just won’t let it go.”
Indeed, Kale has no plans to let it go.
Rather, he has plans for a book, a possible “60
Minutes” segment on his story, and a bevy of
Biased against pain
Kale says the Medical Board and the Drug
Enforcement Administration have a builtin
prejudice against pain clinics. “There’s
no doubt about it,” he says, “they do not
want these medications used.” He attributes
their alleged prejudice in part from Arkansas
training standards. He says that before 2000,
no hours in chronic pain training were required
“These guys got no education on it, don’t
know anything about it, and don’t want to
know anything about it,” he says. “They don’t
trust these drugs and they don’t trust doctors
who prescribe them.”
Trice denies the Medical Board has any
such prejudice. “I think what you have is a
specialty that has to be done very carefully
for the benefit of the patients so that you’re
not just treating them with schedule drugs that
may not be improving their condition and may
even be being diverted into the public stream
where it’s not needed at all,” he says.
Dr. Scott Fishman has been working
in pain management for 17 years. He is
chief of the Division of Pain Medicine at the
University of California-Davis and president
of the American Academy of Pain Medicine.
He is familiar with Kale’s case and says that
it reflects a common bias against newer pain
treatment methodologies that is the product
of two larger and conflicting problems facing
“There’s bias because we have a collision
right now in society with the war on drugs and
the war on pain. We are two competing public
health crises — that is, drug addiction and
abuse versus undertreated pain.” Fishman says
physicians have to be risk managers, making
usage safe and minimizing the risk that is in
play. “Unfortunately,” he says, “sometimes in
being risk managers, we get misperceived as
A little case history
Kale, a former anesthesiologist, says
he wasn’t always so enthusiastic about the
boons of schedule drugs for treating pain. In
1995, when pain management was emerging
as a separate specialty, he attended many
conferences to see if they would alter his
opinions of these drugs. The facts presented in
the conferences and the literature he studied
changed his mind about their safety and
“I came to the conclusion that because
these medications could be used safely,” he
says, “they should be an option for patients as
part of any responsible pain treatment.”
He opened a private pain management
and acupuncture clinic that year, treating
approximately 15 patients a day, and earning
less than $50,000 a year. Kale developed open
communications with the DEA’s local agent
and the police force’s narcotics detective to be
sure they understood the strict guidelines he
set for his patients on any medications with a
possibility of addiction and abuse.
Kale’s patients and staff separately counted
the remaining pills from the prescriptions each
visit. Patients had to keep a daily calendar
of what pills they took. If there were any
discrepancies, or if a patient failed to comply,
staff watched while the patient flushed the
drugs down the toilet. Kale also only called
in prescriptions himself, so no one could
fraudulently impersonate an office member in
an attempt to get an illegal prescription.
Kale says that 30 days before he was
suspended the DEA agent, who he says later
coerced him into voluntarily surrendering his
DEA license, told a Wal-Mart pharmacist that
Kale ran “the cleanest program in the state.”
In an ironic twist, Kale had lectured
widely in Western Arkansas on how to
prescribe schedule medications in a regulated
environment, within Medical Board and DEA
parameters. He now says, “What we’ve always
been taught is if you just do everything right,
you won’t get in trouble. Not true. If you do
everything right, you can get in trouble, you
just can’t have it pinned on you. It will be
Feeling the pain
Brenda Pereira, RN, directs nursing at St.
Scholastica Monastery, where Kale provided
pain management and wound care for at least
15 nuns. Besides knowing Kale professionally,
she was familiar with his work on her sister,
who had debilitating neuropathy.
Pereira says that when Kale prescribed a
low dose of methadone for her sister, many
people initially expressed alarm at the choice
of drug, but that it worked. “It really gave my
sister her life back,” Pereira says. “When his
license was suspended, she panicked, told me
she was facing hell, the idea of going back to
the kind of pain she’d had before.”
Kale treated the nuns’ pain with
several modalities, including acupuncture,
hydromassage, and some opiods. Pereira says
the sisters are effusive in their praise for
Kale and disappointed in the Medical Board’s
Sister Corrine Lang is 86. A former patient,
she supported Kale at one of his hearings and
recalls, “I was not very impressed with the
Medical Board. They did not seem to take
much interest in what was going to happen
to the doctor. It was mostly all planned out.”
She says she was particularly surprised when
one of the Board’s expert witnesses admitted
he kept up with changes in pain management.
Judge says doctor cut pain rules
August 4, 2005 - A judge Wednesday upheld a finding by the Arkansas State
Medical Board that a Fort Smith physician operated a pain management program
without following a state regulation.
Sebastian County Circuit Judge J. Michael Fitzhugh ruled against Dr. Robert
Kale, who¹s been at odds with the medical board since 2002.
Kale, 52, is suing Medical Board Chairman Ray Juett, claiming Juett
slandered him during a TV newscast in August 2002. The interview aired on
Fort Smith/Fayetteville station KFSM-TV, Channel 5, after the board accused
Kale of over-prescribing pain medication, a charge that was later dropped.
On Wednesday, Kale and his attorney withdrew the slander suit, saying they
would re-file with new evidence within a one-year time limit.
Fitzhugh upheld the medical board¹s finding that Kale violated medical board
Regulation 19, which defines pain management programs and sets out
The board found in June 2003 that Kale didn¹t follow a part of the
regulation that requires pain management programs to offer interdisciplinary
services, like psychiatric and occupational therapy.
Fort Smith attorney Chip Sexton said Wednesday that Kale operated as a "pain
management physician" and, therefore, wasn¹t subject to the regulation.
Kale¹s services didn¹t meet the regulation¹s definition of pain management
program in that they didn¹t involve shortterm, predetermined treatment,
Medical board attorney Bill Trice said Kale was arguing semantics.
Kale¹s letterhead referred to his practice as a Physician Acupuncture and
Medical Pain Management Clinic and that Kale concentrated specifically on
pain management, Trice said.
Fitzhugh¹s ruling upholds a $14,634 fine the board levied against Kale in
June 2003 and lets the board seek subsequent legal fees.
Kale initially appealed the board¹s June 2003 finding to circuit court, and
a judge returned it to the board for more evidence.
In August 2004, the board affirmed the finding, and, again, Kale appealed.
Fitzhugh heard the case Wednesday.
After the hearing, Kale said he¹ll appeal to the Arkansas Court of Appeals.
He believes the board¹s action against him is part of an attack on doctors
who use narcotics to treat chronic pain.
Kale said he treated more than 400 patients suffering from chronic pain at
his Fort Smith clinic through acupuncture, prescription drugs and shock
therapy. "My patients are the ones who¹ve suffered in this," Kale said.
Kale closed his clinic after the board accused him of overprescribing in
The board suspended Kale¹s medical license, then reinstated it.
The board allowed Kale to reapply for his Drug Enforcement Agency
registration, which allows him to prescribe controlled substances, but the
federal agency hasn¹t reinstated it.
It Takes a Big Person to Admit You Are Wrong
Consider this following news story. The Arkansas Board just cannot admit they are wrong. In time, the Courts will compel them to accept the fact that they were wrong to begin with and are now just trying to exercise their powers out of small mindedness and vengefulness. They are out to get Dr.Kale and they cannot admit their errors. So they are commiting more errors. At least one board member had enough integrity and decency to admit the obvious. As for the rest of them - it is evocative of the Ku Klux Klan - some of them knew what they were doing was wrong too, but they hadn't the courage to confront the crowd.
Dr. Hochman, NFTP
State board again finds pain doctor broke rule
August 27, 2004 -
The Arkansas State Medical Board upheld a previous decision, finding again that a Fort Smith pain management physician violated a board regulation governing pain management programs.
In June 2003, the board, which licenses doctors in Arkansas, found that Dr. Robert Kale had promoted his practice as a pain management program without following the requirements of such a program described in Regulation 19.
Kale was allowed to keep his medical license, but the board fined him $14,634 for the cost of its investigation. He was also required give up his registration with the U.S. Drug Enforcement Administration, which gives him authority to prescribe controlled substances.
Kale appealed the ruling to Sebastian County Circuit Court, which sent it back to the medical board for additional testimony.
Kale believes the action against him is part of an attack on doctors who use narcotics to treat chronic pain. His original hearing before the medical board included accusations of overprescribing narcotics, but the board ultimately found no violations of overprescribing.
He believes he is not subject to the regulation.
"Dr. Kale held himself out as a pain management clinic," said Chip Sexton, Kale's attorney. "He never one time held himself out as a doctor in a pain management program."
"I, as a lawyer, looked at [the regulation] and thought that Regulation 19 was something that he need not be concerned with because we didn't think he had a program; we thought he had a practice."
Medical board attorney Bill Trice pointed out that Kale's letterhead referred to his practice as a Physician Acupuncture and Medical Pain Management Clinic and that Kale concentrated specifically on pain management.
During Thursday's hearing, Sexton described Regulation 19 as virtually impossible for any pain management physician to comply with.
The regulation states that services for chronic pain patients can be provided by a coordinated interdisciplinary team of professionals. It also states that patients, on admission to the program, should sign a contract spelling out the goals of treatment and the estimated time frame for accomplishing those goals.
"I don't think your regulation is in any way confusing," Trice told board members. "It's just not one he thought he came under for some reason."
Only one of the 11 board members present, Dr. John Bell, voted against upholding the board's earlier decision. He noted that the issue that brought Kale before the board was the amount of narcotics he was prescribing, not the pain management program violation.
"What kind of bothers me about it," he said, "is that we kind of went back and gave him a hickey because we couldn't get him on the volume of medication."
Board member Dr. David Jacks said he voted to uphold the board's decision because he heard nothing new in the testimony.
In August 2002, the medical board issued an emergency order accusing Kale of inappropriately prescribing narcotics for 12 patients. In addition to violating Regulation 19, the board accused Kale of violating two other regulations: overprescribing narcotics and not keeping adequate records on patients to whom he prescribed narcotics for longer than six months.
In June 2003, the board cleared Kale of the latter two counts.
Kale said he would appeal Thursday's decision by the board.
"We'll appeal all the way to the Supreme Court if we need to," he said.
Even though the Medical Board allowed him to reapply for his DEA registration, Kale said the DEA has not reinstated it. He said his practice is crippled without it.
"It's hard to have a pain management practice without the ability to prescribe pain medicine," he said.
A Case for the Intractable Pain Law
Robert L. Kale, M.D. 9/19/2002
In the last 15 years, intractable pain laws have been adopted in 13 states to protect pain management physicians from uneducated, ignorant, and prejudiced state medical boards in an attempt to make pain management more available for millions of suffering patients.
The World Health Organization has designated untreated pain as the number one medical problem in the world. It has stated that narcotic analgesics are effective and safe and should be made more widely available for treatment of this pain.
The American Academy of Family Practice, American Geriatric Society, American Pain Society, American Association of Pain Medicine, and American Association of Pain Management, among others, have encouraged more aggressive treatment of cancer and noncancer pain. Yet, state medical boards have hidden behind the cloak of immunity while punishing and intimidating compassionate physicians who are attempting to respond to this great need.
The members of these medical boards often are undistinguished in their own fields and hold their positions as a result of political patronage. As in the case of the Arkansas medical board, they have no training or experience in pain management and rely on "experts" who are friends or acquaintances and also lack any credibility in the field of pain management.
Six years ago, I was investigated by this medical board. Charts were subpoenaed and reviewed, and I received a letter that no problems were found. I have always maintained extensive, complete, and easily read records and have always documented reasons for changes and the progress of the patient. I have always worked closely with law enforcement officials. In fact the state DEA agent has called my practice, in comments to at least one pharmacist, "the best run in the state" and has referred patients to me.
Patients must keep comprehensive records of narcotic analgesic usage and must bring records and remaining medications to appointments. The medications are counted and the totals rectified with prescribed amounts and amounts used. I normally see around 15 patients a day. This allows me to spend significant time with my patients and their families to ensure that the medication has made a positive impact on the quality of their life.
Medication is not titrated to levels of pain but instead titrated to an increase in function and activity. A patient's first appointment will normally take 1 1/2 hours to 2 1/2 hours so that I will have a good understanding of the patient and their social setting and can also discuss previous treatments and options.
The patient is thoroughly educated about all medications, and all questions are answered. I am a member of the three major pain associations in this country. I regularly attend meetings and read current journals and have received the Physicians Recognition Award for Continuing Education from the American Medical Association.
I am a member of regional and national advisory boards of three major pharmaceutical companies as well as being on the speakers bureau for five companies. I have been a featured speaker for M.D. organizations, D.O. organizations, and pharmacist organizations. I have served on the Board of Directors of a national physician organization with over 2500 physician members. I regularly speak on proper record keeping, prescribing, and treatment of
noncancer pain with opiate analgesics.
My topics include how to define goals in treatment as well as how to recognize drug abuse and misuse.
Throughout the United States, I am considered an expert in the field of pain management by everyone except, apparently, the Arkansas state medical board. For if the medical board upheld my expertise, their response to doubts about my practice would have been to ask me to explain and justify it, rather than to emergently suspend my license and destroy my career.
Less than three months ago, I was served with a subpoena for patient charts for another investigation by the state medical board. This investigation came two weeks after I was threatened by a representative from Dillard's department store. I was told that I would be in trouble with the state medical board for treating one of the company's employees with narcotic analgesics if I did not immediately discuss it with her. The patient was under- treated for over ten years by her previous physicians and had been referred to me. I helped her titrate analgesic medication to a level that significantly improved her function, quality of life, and overall mood. The patient, her husband, and her family were all very pleased with her improvement and had no complaints.
Dillard's objection was that the proper treatment of her pain cost them far more money than under-treating it. I might add that it was not me who was making the money; rather, her pharmacy bill was significantly greater. Other physicians who had seen her previously and under-treated her used such words as "drug seeking behavior" and "symptom magnification" to describe her desire for adequate pain treatment.
Whenever a patient is under-treated for pain be it back pain or angina due to heart problems she will seek more medication to try to relieve that pain, using the effective medication for the condition, narcotic or nitroglycerin respectively. No physician would ever consider labeling a patient complaining of chest pain as "symptom magnification" but do not seem to have trouble making that assessment of a patient complaining of back pain.
I believe this investigation is politically and economically motivated. I began to inquire about the state medical board and heard from many of my colleagues about the inappropriate, irresponsible, and bullying behavior of the chairman.
A month later, I was asked to speak at a rally at the state capital where I called for the resignation of Dr. Ray Jouette. In less than two weeks, I received an emergency suspension of my license to practice medicine in the state of Arkansas. Normally, this power is not used unless a physician poses an immediate threat to his patients usually a physician guilty of substance abuse and involved in critical care such as emergency room, surgery, or anesthesia.
Without a doubt, this was excessive for a physician who sees around 15 patients a day in a private office. The earliest that I could get a hearing would be in 30 days and the board should have been aware that around 400-500 of my patients would run out of their medication before that time. They created a situation where patients would be at risk for increased suffering and some patients would be at risk of dying. The latter group includes an 84 year-old Benedictine nun whose heart condition is controlled only when she receives adequate pain management including the use of Oxycontin.
Because I see so few patients, my income is unusually low for a pain management practice. Thus, it would be impossible for me to keep my practice open and continue to pay the office's overhead for an entire month, hoping for the unlikely event that the board would reverse their decision after hearing me out. That the board was neither fair nor
impartial became even clearer when I was informed that a board member had called me a "killer" in remarks to a local legislator.
The evidence that the board used to terminate my medical license was a review of only partial charts and subsequent opinions of a pharmacist not a pain management physician, not even a physician. This pharmacist has never had a medical practice and never medically cared for even one patient, yet his opinions and biases were used to terminate my medical practice, ruin my reputation, and most important, deny my patients proper medical care.
This pharmacist criticized me for having patients return unused narcotics to the clinic to be destroyed; then, on another patient, he criticized me for not having the patient return medication to be destroyed. Clearly, he was not looking to give me a fair evaluation but was nitpicking for anything he could find, as though he were given a mandate to find whatever problems he could. Some of the patients had been seeing me for over six years, yet less than two years of records were reviewed in arriving at their decision.
It also became clear that I was not to defend myself when Mr. Trice, the lawyer for the board told me that "this board tended to be a lot more rehabilitative than punitive if approached with the right attitude." Obviously, the board was not interested in any opinions but their own.
National organizations and national pain experts have all offered to testify at my hearing. My lawyer is from the Pain Law Initiative, the judicial branch of the National Pain Foundation. No doubt, I will lose at a hearing because the board cannot reverse itself after stealing my practice and putting so many of my patients at risk without admitting incompetence and prejudgment.
I am confident that I will win in court. A pharmacist such as their "expert" is not even admissible as an expert witness under the rules of law.
However, I have lost my practice and will have to spend a significant amount of money to finally receive justice. Not one member of the board would risk even $5000 that they are right and just. Lucky for them, they do not have to for they are hidden behind immunity. If they were responsible and open-minded, immunity might be acceptable.
However, these board members are arrogant, ignorant, irresponsible, and vindictive. Even as they sit in these hearings, they are thinking, "What the hell do these laymen know about medicine, and how do they presume to interfere with us?" Unfortunately, the arrogance of physicians is well known.
Six months ago, I was against an intractable pain law. The pain societies that I belong to generally prefer to have physicians regulated by compassionate, educated, and responsible medical boards. Unfortunately, this board does not meet those requirements.
In an interview with a local TV station, Dr. Ray Jouette said the following: "The doctor is causing this individual to become dependent. That's a part of it. The second part of it is that there are a great number of drug seekers that utilize physicians to get drugs, and then they sell them on the street." Keep in mind that Dr. Jouette probably has never in his entire career spent two straight hours with one patient as I regularly do. However, his statement alone disqualifies him from serving in any responsible position.
Any patient taking any medication chronically is dependent on the medication for a better quality of life, to prevent symptoms, or to prevent death. The first part of his statement would deny patients any and all medication that would cause some dependence. The second part of the statement impunes all patients suffering with pain problems. It is well accepted that there is about a five percent substance abuse rate in our country. This includes all drugs and all alcohol. In pain patients, this number is estimated to be less
than one percent.
For him to make the above statement shows ignorance and insensitivity. More important, it shows that he considers himself no longer a physician but rather a drug enforcement officer of some kind. In his mind, if there is any chance for misuse or diversion of these medications, all patients should be denied the medication; the innocent punished along with the guilty. It is his goal to create an atmosphere in which patients with pain problems cannot find care.
This board has received letters from local pharmacists and physicians in support of me. These letters have stated that they have never seen anyone more careful or meticulous than I, but the board has chosen to ignore these.
By persecuting me, they send a message to the rest of the physicians in the state: "Do not prescribe these medications!" Other physicians are thinking that if a pain management specialist with my expertise cannot prescribe these medications, certainly they cannot.
Most physicians cannot and will not take a chance with their practice, reputation, and livelihood. I practiced in a way that I thought would benefit my patients. I did not make much money so my only motivation was doing what I believe in. In neurosurgery Dr. Jouette's field the failure rate for spine surgery can be as high as 20%; in other words, one-fifth of his patients may not do well.
In all of medicine, there are only two diagnoses that begin with the word "failed:" failed back surgery syndrome and failed neck surgery syndrome. Both are the result of unsuccessful neurosurgical procedures and not uncommon. No doubt Dr. Jouette has had these complications during his career; these are no more his fault than substance abuse is mine. However, Dr. Jouette still took his large fees, never offered to return the money, and now he would deny these patients' symptoms and deny them care.
We all should be interested in "due process rights" and fair and equitable treatment. Without a doubt, I have been denied all of these.
This clearly makes a case for an intractable pain law. Arkansas has lost about two-thirds of pain management physicians and other pain management physicians will no longer prescribe controlled substances. Most of my patients have had to go to Tulsa to find another physician.
The only other solutions to this problem would be to legislatively abolish this medical board and start over with another medical board or to remove their immunity. If they were liable for their decisions, these board members would not have acted in this manner. The yardstick for determining when to take punitive action should not be personal preferences or bias. Rather, any law or regulation should specify that no punitive action should be taken against any physician who acts in good faith. Additionally, education and further training or instruction should be the tools of correction unless criminal intent or avarice can be proven.
Legislative action is too late to save my practice. My only interest now is to try to make quality medical care available for chronic pain patients, who could include your constituents, coworkers, neighbors, relatives, family, and even yourself. Yes, you are just a car accident away from having your right to compassionate care denied by Dr. Ray Jouette and this state medical board.
Please do what is right and pass the Intractable Pain Law.