When Medicine Clashes With the Law

ABC News
When Medicine Clashes With the Law
Prescription Painkillers Cause Problems for Patients, Doctors and Prosecutors

May. 11, 2005 - The world of chronic pain and its potentially addictive treatments are clashing increasingly with law enforcement, pitting patients and doctors against prosecutors and the federal Drug Enforcement Administration. While trafficking is a real problem, some contend those in chronic pain are suffering the most.

Richard Paey went from being an Ivy League law school student to serving 25 years in a Florida prison after a long, strange and painful journey from surgical patient to state prisoner.

A car accident in 1985 led to long hospitalizations, surgeries and treatment, including metal screws in his spine that continue to cause debilitating pain.

Still, he married and raised three children in his native New Jersey. To fight what he describes as chronic pain, a local doctor prescribed Paey such narcotics as Percocet, Lortab and Tylenol 3. But when the family moved to Florida in 1994, Paey had trouble finding physicians to treat his pain.

"One doctor said I was screwed, and he was being nice about it," Paey said. "I think what turns doctors away, the doctors that I went to, the high dosage that I was on."

Paey, now 46, said he didn't always need a high dose of the medications, but the amount required to control his pain has increased over the years. He said he never became addicted and never used the pills recreationally. "Pain patients don't take the medication to get high," he said.


A Different Take

But authorities in Pasco County, Fla., contend otherwise. When he moved there, Paey did not know that the pharmacies where he filled prescriptions were under surveillance by local police and the DEA.

Florida prosecutor Scott Andringa built a case accusing Paey of forging prescriptions using the name of his former doctor in New Jersey. According to a search warrant, Paey had filled more than 200 prescriptions involving 18,000 pills in the space of about a year.

Paey maintains he never sold the drugs. "I think a true pain patient would never sell their medication," he said. "It's too hard to get."

In fact, the prosecutor concedes he had no evidence Paey used the drugs for anything other than his own pain.

"There was no proof that he had sold these substances," Andringa said. "There was an implication, there was a suspicion, there was a belief that he must have been selling these medications based on the number of pills. But there was no proof, and therefore we did not argue that at trial."

Before his first trial date in 2001, Paey declined a deal of pleading guilty to a lesser offense and accepting house arrest and probation -- but no prison time. But Paey said he could not plead guilty to a crime he insists to this day he did not commit.

Patient or Criminal?

In Florida, the illegal possession of certain prescription painkillers -- in amounts more than 28 grams, enough to fill less than two bottles -- is considered drug trafficking. The penalty is equivalent to that meted out to hard-core heroin dealers -- a mandatory minimum sentence of 25 years in prison. Prosecutors convinced a jury that Paey had forged enough prescriptions to qualify as a drug trafficker. He is barely a year into serving the sentence.

Paey and his supporters consider his case a classic example of law enforcement meddling in medicine and treating chronic pain patients as addicts and criminals. "It's a culture that's creating fear among the patients and the doctors," he said. "It's turning patients against doctors and the doctors against the patients."

But Andringa said Paey illegally manipulated the medical system, forging prescriptions and tricking different doctors into giving him more medicine than he was supposed to get.

"If Mr. Paey is the poster boy for the pain patients of the world, then I suppose Enron is the symbol for corporate responsibility," he said, "And I realize that sounds kind of harsh, but I really believe in my heart that people like Mr. Paey have made the treatment of pain more difficult for patients, for doctors."

Ironically enough, Paey is now getting the treatment for his chronic pain that he had such trouble finding outside of the prison walls. A morphine pump the size of a hockey puck has been sewn into his side, delivering a controlled dose of medication.

Paey is appealing his conviction. But should it stand, he could very well find himself locked up until he is an old man.

A Law Enforcement Scourge

Suspicion is not unique to Paey's story. Across the country, there is a thriving black market in prescription painkillers -- in some places known as "hillbilly heroin" -- that has become a major cause of crime and a focus of law enforcement.

In Kingsport, Tenn., an industrial town nestled in the Appalachian foothills, a sting operation led to the arrest of Dr. William Hurwitz, a Virginia internist who specialized in treating pain. Prosecutors claim hundreds of his prescriptions wound up in the hands of drug dealers who sold painkillers across the mid-Atlantic region. He claims he was scammed by his patients, but a jury convicted Hurwitz of drug trafficking in December. He was sentenced to 25 years in prison but is appealing his conviction.

Supporters of Hurwitz believe he is the scapegoat in a larger federal crackdown on physicians who treat pain. But Karen Tandy, who heads the DEA, said it only targets the most egregious abusers of the law.

"The number of doctors that have been arrested by DEA or the number of cases that DEA's participated in is less than one-hundredth of 1 percent of all the registered doctors," Tandy said. "It was 42 this year. It was 50, a little over 50, last year. So it's a very small number of doctors."

But Dr. Russell Portenoy, a pain specialist at New York's Beth Israel Hospital, said he and his colleagues increasingly are concerned about the criminal prosecution of doctors who prescribe pain medication.

"Physicians, in the last, year have begun to view the DEA as an adversary or have begun to feel increasingly suspicious that the DEA is so focused on prescription drug abuse that they're willing to sacrifice appropriate medical care, at least in certain circumstances, in order to reduce prescription drug abuse," Portenoy said.

Is Fear Hurting Patients?

For Cynthia Hildt, 70, chronic pain began after seven surgeries on her spine. For years, she said, it went largely untreated because doctors were so wary of prescribing all of the painkiller she needed.

"It was all concern about addiction, addiction, addiction," Hildt said. "I got so tired of hearing that word. I constantly said to these people, 'If you felt what I feel in my body right now, you would do anything to fix it.' "

But now, Portenoy is treating her and she is taking daily doses of morphine and methadone that are 20 to 40 times higher than a typical trauma or surgical patient would receive.

"In the chronic pain setting, what often happens is that doses may rise over time, and patients end up taking quite large doses," Portenoy said.

For Hildt, it's made a world of difference. "It's enabled me to do things that I couldn't do before," she said. "It's made me able to be more active."

Unfair Targeting or Pursuing Criminals?

Such high-dose therapy using narcotics -- known as opioids -- now fairly common among physicians who treat chronic pain, has put those specialists on a collision course with federal regulators. The crux of the issue is whether the DEA is now unfairly targeting doctors merely for doing their jobs.

In August, the DEA posted a set of policy guidelines -- in the form of "frequently asked questions" -- that had been ironed out over three years among top specialists and regulators.

It made clear that simply the dosage of narcotic painkillers or the number of patients in a practice who receive them do not, by themselves, indicate a problem.

But the guidelines were removed from the DEA's Web site during Hurwitz's trial in October due to legal "misstatements." For pain specialists, that was an ominous sign that the DEA had issued itself a new hunting license.

It's raised concern, too, even among top law enforcement officials. Oklahoma's Drew Edmondson is one of the 30 state attorneys general who have signed a letter protesting the DEA's approach.

"When a doctor's treating pain, if he thinks OxyContin is the most effective thing he can prescribe, we don't want him prescribing extra-strength Tylenol because he thinks if he prescribes OxyContin, DEA's gonna open a file on him," Edmondson said. "That's not good medicine. And that's not good public policy."

Tandy said, however: "DEA does not dictate the legitimate practice of medicine. We deal in enforcing the laws against criminal conduct. And these examples of cases where doctors are prosecuted, that small number of doctors, there are very extreme facts in those cases. And so I think that there is a misperception here."

But much of the medical community feels strongly that federal agents and prosecutors, so intently focused on drug abuse, are sending the wrong message to the vast majority of physicians whose primary concern is to ease suffering. And, intended or not, the practical result of such an aggressive policy is to sentence many innocent patients to a lifetime of pain.

ABC News' Chris Bury reported this story for "Nightline."