The Police State of Medicine: Reflections on a Case of Regulatory Abuse
William E. Hurwitz, MD, JD
First, I would like to thank the Drug Policy Foundation for the opportunity to speak to you today. I understand that the rights of patients to effective treatment and the impact of current drug policy on the patient-doctor relationship are very much on your minds, as they are on mine. I offer my story as a case study of regulatory abuse, as we try to fashion an adequate political and legal response to what I think of as "The Police State of Medicine."
I will begin with a review of the legal events in my case. I will then tell you about my patients and the impact the legal action against me had on them. Finally, I would like to address two related questions: How does the police state of medicine affect medical care? And what can we do about it?
What Happened to Me?
In May 1996, my license to practice medicine was suspended without a prior hearing by the Commonwealth of Virginia after the deaths of two of my patients were incorrectly attributed to my treatment. I was charged with having prescribed excessive doses of opioid analgesics in the treatment of 30 patients who, it was acknowledged by the Board of Medicine, had conditions causing intractable pain. The charges were brought without any apparent reflection by the Board on the applicability of Virginia's Intractable Pain Act, upon which I was relying for legal protection.
The hearing might well be characterized as a Kafkaesque inquisition. This was not anything close to an open-minded search for the truth in which legal adversaries present evidence before an impartial finder-of-fact. This Board thought it knew from the outset what constituted proper pain management, and it thought it knew that the high doses of medication I prescribed to many of my patients were illegitimate and without clinical rationale. The number of pills I prescribed was all the evidence the Board or its prosecutors thought they needed. They had not even bothered to subpoena my medical records!
When we pointed out that, under the Virginia Intractable Pain Act, dose alone was an insufficient legal basis for disciplinary action, rather than dismiss the charges, the hearing was turned into a fishing expedition for evidence with which to smear my name and to provide a rationale for the harm they had already caused me and my patients by the summary suspension. The prosecuting attorney sponsored testimony to the effect that I was taking money under the table for prescriptions --- testimony which was subsequently shown to be pure fabrication --- without disclosing his witness' prior felony conviction for fraud. He also presented testimony from an addiction specialist, who, it turned out, had himself been disciplined over a ten-year period by this very Board. He had been an anesthesiologist who was addicted to Fentanyl, a strong opioid used in anesthesia, which he stole from his patients --- leaving them to buck in pain on the operating table.
My experts --- all pain specialists of international repute (one of whom, Dr. C. Stratton Hill, is being honored at this conference) --- were harassed by cross-examining Board members. My patients, many of whom had traveled from distant states, were ignored, ridiculed, insulted, and ultimately condemned to pain and misery.
After this caricature of a hearing, my license was revoked. Although the revocation was stayed and my license was restored after three months, my authority to prescribe the controlled substances necessary to treat my patients was withheld. The Virginia proceedings set in motion a cascade of legal action against me. The authorities in the District of Columbia, where I was actually in practice, suspended my license. This provided the DEA a basis to revoke my registration, although ultimately they agreed to transfer my registration to my Virginia address with restrictions paralleling those imposed by the Virginia Board.
After an informal hearing in August 1997, the Virginia Board restored my ability to prescribe pain medicine and accepted a protocol for treating pain patients that was essentially the same as I had been using prior to my suspension. By doing so, the Board appears to have accepted the legitimacy of the therapeutic principle that calls for adjustment of medications according to patient response without limit as to dose or combination. The Virginia Board's action remains, at best, a symbolic gesture without practical consequence, however, unless and until the DEA restores my registration and the Board has an opportunity to demonstrate its good faith.
An appeal from the original Board Order of August 1996, in which the Court is called upon to interpret the extent, if any, of the safe-harbor protection afforded by the Virginia Intractable Pain Act, was heard in August of this year. The Court has not yet issued its opinion. Nor has the DEA responded to the application I submitted over four months ago for full restoration of my prescribing privileges. It's not their pain.
Only participants can have any idea of the exorbitant personal and professional costs such legal proceedings exact. But this was nothing, when compared to the impact on my patients.
What Happened to My Patients?
At the time of the Virginia Board's suspension in May 1996, I had over 200 patients with intractable pain from all over the United States. Some of their stories are gripping:
· A young woman whose daily headaches were so bad that she had the nerves to the back of her head cut, only to find that after a brief respite, her pain came back worse than before.
· A gentleman, now in his fifties whose legs had to be amputated when he was 18 years old. They had been frozen when he was trapped in his car after an accident in -30°F weather. He subsequently had the lower portion of his torso removed. With the benefit of pain medicine, he was able to work and support himself.
· A physician who had such severe reflex sympathetic dystrophy that his left arm became gangrenous and had to be amputated.
· A woman in her thirties whose leg had been almost completely severed at the thigh in a motorcycle accident. The orthopedist who reattached her leg also treated her pain with opioids. But after he retired, no one would continue her treatment.
There were over 200 of these patients with crippling pain from failed backs, arthritis, multiple sclerosis, interstitial cystitis, arachnoiditis, RSD, TMJ, trigeminal neuralgia, and phantom limbs...the list goes on and on. Many of them had come to me after years of unsuccessful attempts to obtain relief from a multitude of procedures, doctors, and pain clinics. They were treated like addicts and criminals. They were stigmatized, insulted, neglected, and abandoned. Betrayed by the whole medical profession with the refrain, "I would like to help you, but I can't. I don't want to lose my license." But who can blame the doctors, who are themselves the victims of the thuggish drug-control police and the heartless and mindless bureaucrats who serve on boards of medicine.
When my patients came to see me, they were terrified that I too would reject them, or subject them to more tests, more procedures, more expense and delay. But my approach was different. I asked them what had worked in the past, and that was my starting point. I let their response to medication guide my treatment. If one medication didn't work, or made them sick, we --- the patient and I --- tried another. If a medication became less effective, we increased the dose. Sooner or later, we found what worked best for each patient.
The response to pain relief was dramatic. People who hadn't worked in years went back to work. People who could barely get out of bed began to move, even to dance. Some no longer needed crutches or a cane. Almost everyone reported that their lives were better. Many said I had given them their lives back.
When word went out that my license had been suspended, there was panic as patients contemplated what it would mean for the pain to return. Lives that had been rebuilt on the basis of pain control had lost their foundations. After I lost my license, the fear was palpable: pharmacists afraid to fill my prescriptions, doctors afraid to take my patients, and patients desperate for continuity and certainty. Added to the stigma of taking morphine, methadone, or Dilaudid, was the stigma of being one of Dr. Hurwitz's patients.
There were a few happy stories. A few physicians who had known my patients before they came to me and saw their improvement while under my care were willing to continue the treatment. Pain specialists at some of the academic centers and a few brave doctors in private practice were willing to take my patients. Some of my patients, those who had saved a reserve supply, were able to obtain a modicum of pain relief and avoid the symptoms of abrupt withdrawal.
Some stories were not so happy. A few patients went through horrible withdrawals --- a number who availed themselves of medical help were admitted to psych units and detoxed cold turkey. Some found doctors who were willing to treat them, but were unwilling to continue what had been successful medication regimens. Some were exploited by doctors who imposed expensive and risky procedures as a condition for receiving pain medication. And some just gave up, exhausted by insurmountable obstacles. There were two suicides directly attributable to the prospect of inadequate pain control.
How Does The Police State of Medicine Affect Medical Care?
The quasi-criminal liability imposed on physicians distorts clinical information and medical judgment, impedes the development of clinical expertise, undermines the ethical commitments necessary to medical practice, and leads to the abandonment, wasted lives, and deaths of patients with intractable pain. Holding physicians liable for the misbehavior or dishonesty of their patients turns physicians into policemen and is, in principle, incompatible with effective medical care. In what other context do we sit in judgment of a patient's moral worth to determine his eligibility for treatment? Is a former addict with AIDS less entitled to medical care than the victim of a contaminated transfusion? Or less entitled to pain relief with opioid medications?
To me, the unequivocal answer is no. We are not society's policemen, nor should we be. I am not arguing that we should be indifferent to the use to which our prescriptions are put. I am arguing that patients deserve the benefit of the doubt, that a draconian response to the occasional, but inevitable physician error in providing medication to the dishonest patient who may be misusing or diverting medication has the inevitable consequence of denying pain relief and perhaps condemning to death the honest one.
Effective medical care requires trust in both directions. A patient must trust that his physician is acting in the patient's medical interest. But how is this possible when the physician's career is threatened by doing so? A physician must trust that his patient is reporting his circumstances and symptoms accurately. How is this possible when the patient is afraid the truth will look suspicious, and that merely looking suspicious will prompt abandonment?
Under current regulatory policies, distrust governs the treatment of pain and subverts the usual clinical calculus of risk and benefit. Patients are subjected to a modern version of trial by ordeal, where their credibility as patients is measured by the pain and indignity they are willing to endure and the expense they are willing to incur. And physicians who are unwilling to impose these indignities as a condition for pain treatment are punished with the destruction of career, reputation, and livelihood.
In the end, the only important clinical question should be: What is best for the patient? As physicians, we treat individuals for the simple reason that they are fellow human beings, and our treatment must respect their humanity. Respect requires that patients be afforded the dignity of choice --- the freedom to choose or refuse treatments based on their calculus of risk and benefit and cost. The current regulatory regime effectively denies most patients the dignity and respect that simple humanity requires.
What Can We Do About It?
The stakes in this battle are too great to leave its outcome to the valiant efforts of the dedicated few. We need reinforcements in the form of legal help, publicity, and financial support to help make boards of medicine and the DEA legally and politically accountable for the misery they engender. Intractable pain acts are not enough. And if boards of medicine were, as a practical matter, legally, ethically and politically accountable, such statutes would not be necessary.
Our strategy should be to raise the cost to the regulators of their regulatory tyranny and to lower the cost to physicians, pharmacists, and patients of defending their rights. We need to destroy the public's naive presumption of the regulators disinterested good faith, to debunk the myth that medicine is being regulated in the public interest, and to reveal the abuse of power for what it is. Only then will we empower physicians to help their patients, and patients to control their pain.
This article is based on Dr. Hurwitz's presentation at the annual meeting of the Drug Policy Foundation on October 18, 1997. At press time, Dr. Hurwitz is concluding a settlement with the DEA that may allow him to return to pain practice. His e-mail address is: email@example.com.
Originally published in the Medical Sentinel 1998;3(4):131-133. Copyright © 1998Association of American Physicians and Surgeons (AAPS).