Dr. Frank Fisher, M.D.
May 29, 2004 - With a Harvard medical degree, Dr. Frank Fisher could have set up
shop anywhere. He chose Northern California's remote Shasta
County, where he founded a clinic to provide medical treatment to
a largely poor and rural clientele and developed a reputation as
an effective provider of pain management. But Fisher's practice
and his life were shattered in February 1999, when his offices
were raided and he was hauled off in handcuffs to be charged with
murder and drug dealing. Along with a couple, Steven and Madeline
Miller, who ran a local pharmacy that filled prescriptions for
Fisher, the doctor faced decades in prison.
DRCNet has followed Dr. Fisher's case since the summer of 2000,
when he, the Millers, and some loyal patients showed up at the
Shadow Convention accompanying the Democratic National Convention
in Los Angeles seeking help and support
can only be called the persecution of Dr. Fisher was a harbinger
of what has now become a wave of prosecutions of pain doctors,
which has only intensified as the federal government has made
prescription drug abuse the drug menace du jour.
Now, more than five years after his encounter with the war on
drugs, Fisher was exonerated two weeks ago of the last remaining
criminal charges, a handful of measly misdemeanors charging him
with defrauding Medi-Cal of some very small change
charges evaporated into thin air upon closer examination -- one of
his supposed victims was a passenger in a fatal traffic accident,
another had stolen drugs from the patient to whom Fisher had
prescribed them -- and the associated charges of illegally
prescribing were similarly thrown out. All that remains now
between Fisher and the renewal of his practice is a complaint with
the state medical board that basically rehashes the same charges
of which he has been cleared.
In part because of his ordeal at the hands of the drug fighters,
Fisher has emerged as a strong voice for the right of doctors to
treat chronic severe pain and for patients to receive adequate
pain relief without interference from law enforcement. DRCNet
spoke with Fisher this week.
DRUG WAR CHRONICAL: You were labeled a murdering drug dealer.
You faced life in prison. You've undergone five years of legal
battles to clear your name. Now you have been entirely acquitted
of the last criminal charges against you. How does it feel?
FISHER: I feel relieved. I've been under investigation
or indictment since the middle of 1996, and finally nobody thinks
I'm a criminal anymore. That's a relief.
CHRONICAL: You have been exonerated of all criminal charges, so
we have some idea of how just was the decision to prosecute you.
But you are saying it goes beyond that. Are you alleging
FISHER: There are numerous examples. During the initial
investigation of my case, numerous undercover agents were sent
into my clinic to try to obtain drugs illegally. None of them
ever got anything, but the prosecutors never disclosed this
enormously exculpatory information to my defense team. We only
found out about it on the last day of my preliminary hearing, when
my attorney, Terence Hallinan, uncovered it during the cross-
examination of one of the agents. We don't think this was
withheld by accident.
The prosecutors also got caught red-handed putting on false
testimony during the preliminary hearing. They were eliciting
hearsay testimony from an agent who had spoken with an informant.
The problem was that the informant had already recanted his
statement, and the prosecutors knew it. But they still put it in
as sworn testimony. The lead investigator later testified that
they had knowingly done this. These were not local prosecutors,
but attorneys on the staff of California Attorney General Bill
We had another agent who testified that she had conspired with
other agents to deliberately violate the Millers' Miranda rights.
She testified that she let the Millers believe they were not under
arrest so they would feel more comfortable and talk to police.
There was also testimony from the preliminary hearing that agents
from the attorney general's office threatened the husband of an
informant. They not only offered her assistance in a criminal
case, but said if she didn't help, her case could go badly. That
sounds like a threat to me.
And then there is the fact that they even bothered to try me on
the Medical fraud counts, which allegedly amounted to about $150.
They don't generally bring those cases for less than $10,000. It
was personal. So yes, I think there was a pattern of
CHRONICAL: Despite your vindication in the criminal courts,
you're not completely out of the woods. You still face a medical
board hearing. What is going on with that?
FISHER: We are sorting that out. The medical board complaint
echoes the criminal charges of which I have been acquitted and had
been held in abeyance pending the conclusion of the criminal
cases. The medical board accusations are of negligence and
incompetence, based on my treatment of chronic intractable pain.
This proceeding raises in my mind that question of how the
California's Intractable Pain Act of 1990 might come into play.
With that law, the state intended that the medical board not
trouble doctors over the treatment of intractable pain, but the
law seems to be toothless. Still, I am confident that I will
prevail at the medical board just as I have in court. And my
attorney Hallinan says it's time to get busy on it. He wants to
get me back to work.
CHRONICAL: You ran a large clinic serving a predominantly poor
and rural clientele. What happened to your patients after your
practice was shut down?
FISHER: The impact on the patients has been devastating, it's
been an unmitigated disaster. Their health has deteriorated,
they've been unable to get medical care, some appear to have aged
20 years in five years, others haven't even survived. Some
patients have gained enormous amounts of weight, others have their
blood pressure out of control. I suspect there has been at least
one suicide. Patients are having to travel great distances to get
their care; they go to Eugene or Fresno or San Francisco. Of the
patients I still talk to, I don't think a single one is being
CHRONICAL: The majority of your patients were Medi-Cal patients,
poor people. Is there a class issue involved in the availability
of pain treatment?
FISHER: The availability of pain management for poor people is
even worse than for the rest of us. And it's not good for the
rest of us. Everyone who develops chronic pain is likely to be
killed by it because of medical neglect. It's a malignancy in the
sense that if it is not controlled, it will spread and progress.
My patients were effectively tossed out on the street to fend for
themselves. The local medical clinic saw them as drug addicts who
needed to be detoxed.
CHRONICAL: How did other doctors react?
FISHER: There were some doctors who stood up for me, but there
was really no public venue to do so. Others turned on me like mad
dogs. One compared me to Dr. Kevorkian. Local doctors were in a
panic after I was arrested. As a result, it became very difficult
to obtain adequate pain treatment in Shasta County.
And it is not just Shasta County. I've noticed over the last
several years that effective pain management for people with
severe chronic pain is getting harder and harder to obtain. The
problem is that the doctors are too afraid to prescribe enough
medicine to control the disease. Doctors have become incredibly
jumpy and are throwing patients out of their practices for any
kind of perceived transgression, such as running out of medication
early or missing an appointment. These are not issues around
which the medical profession typically discharges patients, but in
pain management the terrain is all disrupted by prohibition.
Currently, prohibitionist laws insert the principle of balance
within the doctor-patient relationship. That principle requires
the doctor to balance the needs of patients with the potential
harm to society at large by his prescribing opioid pain relievers.
But that doesn't work for patient care; it's a social policy
mistake. It abrogates the doctor-patient relationship, which is
to put the interests of patients first rather than balance them
against those of a larger group. Balance is not necessarily a bad
thing, but it has to occur outside the doctor-patient
CHRONICAL: What has your experience led you to conclude about
current drug policies?
FISHER: I had misgivings about the drug war for a number of
years; it didn't appear to be good social policy. But I had no
idea of the extent to which it would ultimately affect my life and
my patients, that I would become a casualty of the war on drugs
and my patients would be collateral damage. I think the war on
drugs has been an unmitigated disaster in every sense of the word.
I suspect that society will have to choose between pain management
and the war on drugs. They cannot coexist in balance. That's
because the institution of prohibition and the resulting drug war
create a social malignancy where it is unacceptably risky for
doctors to prescribe opioids in treatment of chronic pain. What
prohibition has done is put law enforcement in the position of
judging which doctors are prescribing legally and which aren't,
but law enforcement is not competent to make those judgments.
They need an in-depth understanding of the standards of practice
for medicine, and they just don't and can't have it. Even within
the field there are disputes and controversies over what is
Law enforcement has addressed this problem by formulating
standards for the practice of pain management, what they call "red
flags." Is the doctor prescribing a large volume of opioids in
his practice? What is too large? It is whatever law enforcement
thinks it is.
Another red flag is if patients are coming from
long distances. Law enforcement is noting the remarkable fact
that patients will travel considerable distances to get relief
from pain. The bottom line is that these red flags rather
accurately describe the characteristics of practices where pain
management is being effectively practiced. You can see why
doctors who understand this would think they were fools to treat
chronic pain with opioids. I'm not sure how you resolve this in
the context of the ongoing drug war. Prohibition is totally
incompatible with the practice of effective pain management.
CHRONICAL: How has this affected you personally?
FISHER: My practice was shut down on February 18, 1999, the day
of my arrest. I can't practice medicine. Since then, I've
survived by living with my parents, and I've spent most of my time
working with my attorneys preparing and defending my cases. I
graduated from Harvard with a medical degree; this was not what I
anticipated, spending my forties living in my parents' house as a
defendant in a criminal case.
CHRONICAL: You have had to devote the last five years to
defending yourself. Now your ordeal is almost over. What's next?
FISHER: It's essential for me to go back to work, back to the
practice of medicine. What I really enjoy is running a community
health center, taking care of a broad array of disadvantaged
patients, including a high percentage of out-patient pediatrics.
Before, I had a rural clinic designation, a cost-based program
that allowed me to treat Medi-Cal patients, but I got a letter
saying I had voluntarily withdrawn from the program. I didn't do
that. I was sitting in jail. I wasn't sitting in jail
But I'm not leaving this issue behind, either. Medically,
socially, and politically the treatment of pain and its
interaction with prohibition and the drug war is one of the most
important issues with which our society must deal. The economic
cost of under-treated pain is in the range of $100 billion a year,
and the unnecessary suffering of patients and their families isn't
measurable. In my own case, around 30 patients whom I had been
treating and who had been able to work were forced to go on
disability. Multiply that across the country and you start to see
what the unavailability of pain management costs us.
And the situation is getting worse. Patients are having to travel
further to find someone who will treat them, doctors are tossing
them out, and I don't see the prosecutions of pain doctors slowing
down. It doesn't take very many of those to keep the medical
community aware of the risk of prescribing opioids. The vast
majority of doctors don't treat pain with opioids, and there is
nothing out there to suggest that it is now safe to do so. There
is hardly a week that goes by where we don't see a doctor burned
at the stake. The medical profession has underestimated the risks
of allowing law enforcement to intrude in the doctor-patient
relationship; now they are becoming acutely aware of those risks.
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