Why is Our Government Pursuing a War on Doctors?

By David B. Brushwood, R.Ph., J.D.
June 2004

"We all make mistakes. We know we make mistakes. There's a wonderful phrase, "The Fog of War." What the Fog of War means is that war is so complex it's beyond the ability of the human mind to comprehend all the variables. Our judgment, our understanding, are not adequate. And we kill people unnecessarily."

Robert S. McNamara, Secretary of Defense, 1961-1968.

Ron Paul, M.D., a Republican United States Congressman from Texas, recently declared on his website that "The War on Drugs is a War on Doctors." Dr. Paul concludes that by applying federal statutes intended for drug dealers, "prosecutors are waging a senseless war on doctors." The victims of this war, says Dr. Paul, are not only doctors but also their untreated or under treated patients in pain.

This conclusion is not news to anyone who has been keeping track of drug enforcement activities over the past several years. It is certainly not news to Dr. Frank Fisher, Pharmacist Stephen Miller, and Miller's wife Madeline Miller. All three were charged with five counts of murder in alleged deaths resulting from their prescribing and dispensing of opioid analgesics to pain patients. All three have been exonerated. It is not news to over 100 other doctors and pharmacists who have been charged with crimes for providing opioid analgesics to pain patients. It is not news to chronic pain patients who are living and dying in agony because doctors and pharmacists are afraid to help them. It is not news to California Republican State Senator Sam Aanstad, a dentist who has introduced legislation that would significantly curtail the ability of prosecutors to charge doctors with crimes for prescribing pain medications. It is not news to the news media, who have finally recognized that the real story is the war on doctors and not the diversion of opioids. Reporter Jen McCaffrey, of the Roanoke Times covered the trial of Dr. Cecil Knox, who was acquitted of most charges but still faces trial in a few remaining counts. She says that the joke among doctors in Roanoke is "write a prescription, go to jail." This so-called "joke" is not a bit funny. It is too true to be funny.

Make no mistake. There is a war on doctors. There are tens of thousands of innocent victims of this war. The war must be stopped. Dr. Ron Paul's congressional colleagues should listen to him and act quickly.

Why is the war on doctors happening? Why is it happening now? Who is responsible for this tragic injustice? What factors have brought us to this intolerable situation from which an exit strategy must immediately be found?

Having studied the war on doctors for the past year, I believe there are at least seven separate reasons for this war to happen and to happen now. I base this conclusion on my study of documents from criminal cases against doctors and pharmacists, and on public comments by both health care professionals and drug enforcement authorities. These are the seven reasons:

• The Pain Management Movement. Well intentioned advocacy groups have championed the pain patient's right to relief of suffering. Doctors have responded by increasing their prescribing of opioids to treat pain. But standards for prescribing are unclear, especially for patients who are at risk of aberrant medication behaviors, drug abuse, or addiction. Guidelines for prescribing have been interpreted as standards, and standards are used as a checklist of "gotchas" by law enforcement. No high volume prescriber can practice without occasionally bending a rule because their patients are all individuals with unique needs. The guidelines/standards/checklists are useless in clinical practice, but they provide a clear roadmap for the prosecution of a doctor for unlawful practice.

• The Rise of the Pain Management Specialist. Although there is disagreement over who should be able to use the title "Pain Management Specialist," it is evident that a small cadre of physicians have carved out for themselves a new specialty in the treatment of chronic pain. Rightfully proud of themselves and their achievements, some of these experts wrongly criticize their generalist colleagues who treat pain because there are not enough specialists to do this difficult job. Eager to accept hundreds of dollars per hour reviewing generalist's records, some specialists criticize the care provided by generalists and conclude that because it was not the best quality care possible, it was criminal drug diversion.

• The Pharmacist as Informant. For decades pharmacists have been required to distinguish legitimate prescriptions from forgeries. In the past ten years, pharmacists have also been asked to evaluate the appropriateness of a clearly legal prescription, through a process known as "Drug Use Review." Many pharmacists do this job well and they improve the quality of patients' lives while protecting the integrity of the nation's drug supply. Some pharmacists, egged on by drug enforcement authorities, have misunderstood their role as health care professionals and have become the enemy of physicians and patients, reporting any out-of-the ordinary prescribing to the police (without studying the issue or contacting the prescriber), then basking in the camaraderie they enjoy with law enforcement (until they are arrested for improper dispensing).

• Criminality in Health Care. A tiny few bad actors have tarnished the reputation of health care professions. An English community physician has admitted to euthanizing over 200 elderly patients. A New Jersey nurse has admitted the same with about 40 hospitalized patients. A Kansas City pharmacist deliberately diluted chemotherapy to increase his profits. Of course, there is the widely publicized account of Jack Kevorkian and his in-your-face challenges to law enforcement, shamelessly daring them to prosecute him as he publicly killed one patient after another. These stories lead some prosecutors to believe that local doctors may be psychopathic Unabombers, gleefully poisoning the community with illicit drugs. Compassionate care is easily confused with massive drug diversion when investigators lose objectivity and find only what they have been taught to find.

• Post 9-11 Security. These are threatening times. The government has promised to protect the public from evil doers. But how can the government protect the public from terrorists if it can't even provide protection from drug diversion? The failed War on Drugs needs a success story and doctors are available as safe targets. Unlike drug lords, doctors don't shoot back, they naively think the legal system is consistently fair, and they don't know how to find the best criminal lawyers. Doctors are sitting ducks. They are being sacrificed to cover up massive failure by drug control authorities. Prosecutions of doctors are used to assure the public that the country is safe.

• Misled Media. Reporters have published stories critical of high opioid prescribers, suggesting that irresponsible prescribing is the cause of drug diversion. These stories are based on information obtained from sources that support the war on doctors. The "facts" of these stores become the basis of public opinion and of new legislation that restricts opioid prescribing or penalizes those willing to prescribe. The truth is that prescribing is only one of many channels through which drug diversion occurs. It is probably only a small part of the problem. Employee theft, armed robbery, burglary, truck hijacking, importation from other countries, and Internet sales are responsible for a large amount of diverted pharmaceuticals. Shutting down doctors won't solve this problem.

• Rising Drug Costs. To understand why the war on doctors is occurring, one must follow the money. Taxes are currently viewed as a "burden" by most lawmakers, who want to provide "relief" from this burden. Lower taxes have reduced or flattened the budgets of state-managed Medicaid programs. There isn't enough money to pay for the expensive drugs that poor people need. High prescribers of any expensive drug risk criticism and must overcome administrative barriers due to their prescribing habits. High prescribers of expensive opioid analgesics are labeled as drug traffickers and they are put out of business. It is a way to balance the budget. This problem will only get worse when the poorly designed and under funded Medicare prescription drug program begins.

• Robert McNamara advises: "Empathize with your adversary or risk the kind of miscalculation, misperception, and misjudgment that, among Great Powers, can lead to catastrophic war."

  The government's war on doctors lacks empathy. Those who pursue it should follow McNamara's advice. They should put themselves in the skin of doctors who treat chronic pain and look through these eyes at patients who suffer. They will see a disheartened, poor, cynical, out-of-work lot. They will also see tremendous opportunities to transform lives by providing safe and effective medications. Only then will they understand the thoughts that lie behind the decisions and actions of doctors who treat chronic pain. The war on doctors cannot be won because it is an unjust war. Too many people experience chronic pain themselves or know and love others who do. If it continues, this war will eventually be lost, but not without unnecessary suffering and death. The war on doctors must be stopped now.