A Personal Experience in the Criminal Justice System
Tad Lonergan, MD
Orange County Jail, Santa Ana, California
Brad Gates, Sheriff
Bookkeeping Number 91-347438
The cold concrete benches were hard, very hard, and because of the noise and the cursing of other prisoners, sleep was impossible. The "booking" consumed more than 24 hours; afterward, the newcomer was marched along the side of the hall, silently, according to the barking orders of the jail deputy. He was then shown a second-tier steel bunk on which to roll the smelly and pillowless one-inch foam rubber pad. Scattered around the "tank" were 64 other prisoners and a couple of stoolies, who tried to figure out what this gray-haired, overweight, inmate might have done. Was he a drug dealer? A child molester? Or merely some poor fellow behind on his child support payments?
The new stranger was a 1959 graduate of Loma Linda University who had been convicted for the heinous crime of prescribing tylenol codeine for the treatment of migraine syndrome in a couple of ladies who turned out to be undercover operatives for the Medical Board of California! This story is not unique. It is being repeated across the United States every day. Like in some nightmarish novel, our country seems to be slipping into a fascist regime with dictatorial, uncontrolled coercive state power. While other countries have gone the opposite route and have thrown off such oppressive regimentation, the reality is we are going in the opposite direction. While you read this, do not sit back and smugly take comfort in the feeling this can never happen to you. In fact, you might be the next target!
The story begins in 1982 when, over a period of several days, two female undercover agents who were "wired" visited my office complaining of symptoms consistent with migraine headaches. After listening to their history, I gave each of them 30 tylenol codeine tablets until I could get their previous records. I even called one of the physicians who had been listed in the intake form --- a physician in Oshkosh, Wisconsin. An older lady operator told me she had lived in the town for 70 years and had never heard of such a doctor! Warning lights went off in my naive brain!
A rather melodramatic search warrant followed several weeks later served by agents with drawn guns representing a mix of law enforcement agencies including the DEA, BNA (a state agency comparable to the DEA) and the local police. I understand this is common practice so that no one agency can be blamed if anything goes wrong!
My medical practice was the usual mix of obstetrics, pediatrics, and internal medicine found in most family practices. You can imagine the effect this raid had on the economic health of my practice. Yet, more was to follow, including the "planted" story in the local press that I was a drug-dealing doctor and would lose my license. I quickly found out the press was not interested in my side of the story or my denials; they were interested only in the sensationalism and attention-grabbing headlines about the local criminal doctor! It was easier and more profitable for them to merely publish the press releases and handouts from the government agencies, as their "spokesmen" commented on my possible fate and the "experts" vented their collective spleens expounding on the alleged culpability of local physicians in the War on Drugs.
Several weeks later, I was arrested at my office while many startled patients watched in utter disbelief as their doctor was handcuffed and led away. The arresting officers would not let me take off the clinic coat or the stethoscope --- the picture was worth more with them on! I was "booked" and subsequently released on bail.
At the outset, I obtained aggressive legal representation, but as funds dwindled, the representation became less enthusiastic and more spotty. Because of the intervening hearings and legal motions, trial did not come up until 1988, six years later. Like most physicians, I had some previous court experience, but this was different. This time I was the accused and looking into the eyes of the jury as they were picked. This was going to be bad theater. I advised my attorney to dismiss one of the jurors, because he had a particular scowl on his face from which I quickly determined he did not like doctors --- but my wish was ignored. I should have forced the issue; as it turned out, this fellow was elected jury foreman! From the discussions afterward with the jury, I learned he felt that all doctors were "bad" and used too many drugs, and thus to him, the screaming accusations by the government implicating physicians in their failed War on Drugs, had real validity. They were also quick to blame doctors for their management of pain patients. It was almost as if they were suggesting that pain was enobling and patients with pain should just "grin and bear it," rather than request treatment from their physicians.
After a ten-day trial, the jury filed in and I stood up. GUILTY, GUILTY, GUILTY, intoned the foreman. I was sentenced to six months in jail, $11,000 (plus change) in fines and 200 hours of community service. Dear colleagues, remember these are felony counts, I was in big trouble!
The case was immediately appealed to the Court of Appeals where several of the counts were dismissed and I was left with four "counts." The case was subsequently appealed to the California Supreme Court and, on the last day of the session, a hearing was denied. I was in debt for legal fees of over $300,000.
I closed my office and presented myself to the county jail to begin the six-month sentence. But the tape of this nightmarish cinematography keeps on rolling!
The Medical Board of California stepped in next and --- based on the felony convictions and at a hearing I could not attend because I was in custody --- my medical license was revoked.
At this time, the second attorney I had engaged pointed out some discrepancies in the story of the prosecutor, a young Deputy Attorney General named Barry Ladendorf. Another appeal was made to the Court of Appeals, and a resounding decision was rendered against the prosecutor which accused him of lying, deceit, skullduggery, prevarication and of needing a lesson in basic honesty. The license was returned and another hearing was ordered to be held by the Medical Board of California at which time I was placed on five-years probation with the proviso that my DEA certificate also be surrendered.
Subsequently, Medicare, Medi-Cal, and Champus certifications were revoked. In addition, my name was added to the nefarious National Practitioners Data Bank. Thus, no HMO would consider me for employment, no malpractice carrier would insure me, and I was even ineligible for hire by a state prison because of my felonious status!
There are no more well-deserved skiing vacations at Mammoth or Vail. There are no more weekend trips to the ranch. It was lost in the bankruptcy. Most painful of all, you are shunned by your colleagues. From the gossip channels, you hear you must have done something really bad because, as everyone knows, "where there is smoke, there must be fire."
I was very naive about the justice system. Physicians tend to trust the system expecting it to be just and fair. Very few physicians understand the intimidating and coercive "administrative law system" under which we are prosecuted and which serves the needs of the prosecutorial arm of the government --- not the citizen.
I suspect most physicians have no idea of the legal expenses necessary to launch a vigorous defense necessary to vindicate oneself. The attainment of justice I found to be not only expensive but illusory. Physicians are the number one target for prosecution by the DEA and the 50 states operating in tandem. This prosecutorial targeting of physicians which definitely includes entrapment and selective prosecution, has come about, I believe, because of an erroneous and nefarious assumption that our prescriptions are sold on the street to satisfy the needs of "addicts." This fallacious exercise in logic is called "diversion," and the general claim has been made by the DEA that physicians bear the blame for the failed "War on Drugs." This circular illogic and self-fulfilling prophecy is used as a pretext for promoting the greatly undeserved "Bad Doctor Syndrome." There are unlimited funds available for such government investigations. Often they are triggered by a complaint a local pharmacist registers with the Pharmacy Board about a physician he believes uses too many "drugs" for the relief of pain!
The prosecution of physicians then feeds on itself. The lay investigators attend national conventions about how to trap unsuspecting physicians and every notch on their gun means a promotion. The deputy attorney generals, who often prosecute these cases in the administrative law system, are friends and often share offices with the administrative law judges. Every case means more revenue to fulfill the budget needs for the Attorney General. And what state legislature can turn a deaf ear for more funds with which to fight the War on Drugs? There is no peer review by your colleagues, or the County Medical Society, or the local hospital. These administrative law judges have no medical training or expertise. They are the same people who decide the fate of the contractors, the barbers, and the cosmetologists. This is war against the medical profession and against individual physicians who have been singled out. Be prepared to lose your practice --- and even your family --- if you are targeted. You will probably have to consider (or be obligated to file for) bankruptcy. This is one of the goals of the prosecutor --- to do as much damage as possible so you will serve as the great example to others --- plainly, intimidation and coercion in an authoritarian regime.
Unfortunately, there are no resources for the "dinged" physician. One idea I would suggest is for AAPS to serve as a clearing house for those physicians who have been targeted. A panel of AAPS physicians might be formed to merely answer the phone calls of colleagues looking for some direction, moral support, legal assistance, etc. We might be able to direct them to a reputable law firm with expertise in this area and charging reasonable fees. Membership fees for the AAPS might include a base of legal services for this contingency. AAPS might be able to provide legitimate peer review for the accused physician that could be used in a court of law one way or the other. AAPS, because of its leadership position and unassailable moral high ground, might study some of these suggestions and add them to the already existing services --- because, after all, each of us is vulnerable to government destruction.
Dr. Lonergan is a family physician. His address is 11600 Palm Drive, Desert Hot Springs, CA 92240, (760) 251-8887. This article is based on his presentation at the 54th Annual meeting of the Association of American Physicians and Surgeons (AAPS), Chicago, Illinois, September 17-20, 1997.
Originally published in the Medical Sentinel 1998;3(4):139-140 Copyright © 1998 Association of American Physicians and Surgeons (AAPS).