End Pain Harassment
by Richard Morrison
Issue 109 - June 11, 2008

Millions of Americans live in chronic pain, without adequate access to prescription pain medications, because their doctors are too afraid of being harassed or even arrested by the Drug Enforcement Administration to prescribe sufficient doses. To help combat this problem, the Competitive Enterprise Institute is launching its “Politics of Pain” campaign to support reform of DEA rules and procedures.

“DEA is attempting to control drug abuse by regulating the practice of medicine,” said CEI General Counsel Sam Kazman. “But DEA consists of bureaucrats, not physicians, and its views on treating chronic pain often amount to malpractice.”

The Politics of Pain campaign has collected personal stories from physicians and patients who have explained first hand how difficult it can be to either offer or find sufficient treatment for pain conditions. In one video interview, Gulf War veteran James Fernandez and his wife tell their story of how he, once a robustly healthy U.S. Marine, is now virtually confined to his home because of severe, ongoing pain that has been under-treated for years.

Of course, the small number of doctors who have abused their prescription authority should be held accountable. However, when it is too easy to single out doctors simply for prescribing certain types of pain medicines, the result is what we are seeing now: Many of America’s best doctors simply will not prescribe these medicines, or will not prescribe sufficient doses. That leaves thousands of Americans without an adequate remedy for their chronic pain, and it often destroys the lives of doctors who simply want to provide the best possible care to their patients. The Association of American Physicians and Surgeons has documented several examples of prosecutorial abuse involved in the politics of pain.

Consider the following:

• Dr. Robert Weitzel of Utah was convicted of negligent homicide, but then acquitted in a new trial after the prosecutor was found to have concealed exculpatory evidence. The jury needed only a few hours of deliberation to find him not guilty. Nevertheless, Weitzel was sent to federal prison based on an unrelated admission of a record-keeping violation.
• Dr. Deborah Bordeaux of South Carolina was convicted under a “drug kingpin” statute carrying a mandatory minimum sentence of 20 years, after working a mere two months in a locum tenens position – that is, temporarily filling in for another doctor – treating chronic pain and other ailments.
• Dr. Jeri Hassman of Arizona, who had the largest pain practice in Tucson, was threatened with a 28-year prison term on 362 criminal counts, apparently because a small fraction of her patients used the prescriptions in unauthorized ways. Federal prosecutors called her “a drug dealer with a pen.” Dr. Hassman, a single mother with two children, had little choice but to be pragmatic and accept a plea agreement on four counts of failing to notify authorities that patients had admitted using other family members’ prescription drugs. She was sentenced to two years of probation, but had her practice destroyed and her reputation maligned by the federal government.
• Dr. William Hurwitz of Virginia was convicted and had all his property seized, even though his pain practices were under the careful supervision of the state medical board, which believed all his prescriptions were written in good faith. Dr. Hurwitz was initially sentenced to four 25-year sentences and forty-six 15-year sentences, and he was fined more than $1 million. His conviction was overturned on appeal because the trial judge had prevented the jury from considering Hurwitz’s defense. After a second trial, in 2007, Dr. Hurwitz was sentenced to four years and nine months in prison despite the judge’s conclusion that most of his practice was legitimate medicine that saved patients’ lives, and that medical literature increasingly supports Hurwitz’s theories on the propriety of large drug doses to treat patients in chronic pain.

Although the pain and damage caused by prescription drug abuse are real, the insufficient treatment of chronic pain has destroyed lives and livelihoods. It is time to reconsider America’s tragic war on prescription pain medication.

“Pain patients aren’t drug abusers looking for a prescription fix,” said CEI Senior Fellow Gregory Conko. “It's a genuine tragedy that the DEA often treats them and their doctors as if they were. It's as though the agency just doesn't care whether its single-minded waging of the war on drugs imposes collateral damage.”

In another video interview, Dr. Alexander DeLuca, a board-certified specialist in addiction medicine, describes the obstacles faced by a physician trying to deliver the “standard of care” called for by his own medical training. According to DeLuca, virtually no patients in the country today receive proper treatment for chronic pain.

Richard Morrison is with the Competitive Enterprise Institute, a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government. For more information about CEI, please visit our website at www.cei.org.