|Drug War Chronicle: The
treatment of chronic pain with opioids is an increasingly contentious issue.
Sometimes doctors are hauled in for administrative oversights or lax practices.
Was that the case here?
Dr. Robert Kale: It's a complicated
issue. At the least, you have to balance the rights of patients and doctors
to interact freely and use controlled substances against the potential
problems for society with drugs being diverted and misused and becoming
part of the drug problem. In many cases where doctors have been disciplined
or even arrested, the doctor may have meant well but wasn't qualified,
or he was seeing hundreds of patients a day, or writing prescriptions long
distance. The patients may stand behind their physician saying "oh, he's
a good doctor," but medical boards or prosecutors will point to their imperfections.
I'm the first doctor who can completely challenge this bullshit because
I'm 100% clean.
Chronicle: Clearly, the Arkansas
medical board didn't think that, at least at first. What happened?
Dr. Kale: They did an emergency
suspension of my medical license. That is a step usually reserved for a
physician who represents an immediate danger to the community, but when
they slapped the suspension on me, there were zero complaints from patients,
zero patient deaths, zero injuries. The board knew who I was -- or at least
it should have. In 1997, in a case that got a lot of publicity here, I
turned in a local TV anchorman because he was doctor-shopping, much like
Rush Limbaugh. I thought the man was becoming a danger to himself. As a
result of my involvement in that, the board reviewed my practice. They
looked over my patient charts and wrote a letter saying they saw no problem
with my practice. They were so unconcerned that they didn't even ask me
to appear or talk to them. They said there was no problem. The same thing
happened in 1994, when the board reviewed my practice and found no problems.
I was doing everything perfectly right and I still got nailed. What happens
when a doctor has made just a little mistake?
Chronicle: So why the emergency
Dr. Kale: The issue was not
diverting drugs, there were no ODs, no deaths, no injuries. I was prescribing
correctly. So, yes, why did this happen? Well, there was one complaint
against me, and that came from the Dillard's department store. They had
an employee on workmen's compensation for back problems, and she was being
prescribed one Lorcet twice a day. Here is a woman whom the doctors recognized
was in pain, which is why they prescribed Lorcet, but the amount of Lorcet
they prescribed was only good for five hours a day. That's malpractice!
They knew she was in pain and only gave her enough medicine for part of
the day. I adjusted her prescriptions, only now the patient was costing
Dillard's $1,300 a month instead of $30. When I renewed the prescriptions,
Dillard's sent one of their nurse case workers to the office. She came
storming into my office demanding to see me and told my staff if I didn't
speak with her I would soon be in trouble with the state medical board.
She called me at home and accused me of overdosing the patient, which was
ridiculous -- she was in better shape than ever, actually able to do things
instead of just sit in a chair all day, and told the workmen's comp doctors
her life was improved.
It is worth noting that the
chairman of the medical board is Dr. Roy Louette, who is also the medical
director for Tyson's Foods, the mammoth chicken-slaughtering operation.
Louette has shown his stripes. He was part of a blue ribbon panel put together
by Blue Cross to look into whether Blue Cross should pay for epidurals
for laborers. "Those patients don't need those," is what Louette said.
Chronicle: But you were vindicated
by the medical board?
Dr. Kale: Yes. They charged
me with 12 counts of over-prescribing and no other violations. Then the
media asked if there were any other charges because a charge like this
is typically accompanied by a charge of bad or fraudulent recordkeeping.
But the board said there were no charting problems. This was an administrative
error on the board's part, because to charge over-prescribing they have
to charge recordkeeping violations as well. So they came back with a new
charge that even though the name of my practice included the word acupuncture,
I was advertising as a pain management program. My practice includes both.
The over-prescribing charges
were a bad joke, and the board realized that once we demolished their so-called
expert witness, who was more of a useful idiot than anything. He hadn't
practiced in nine years, and we ate him alive. He claimed my prescriptions
were inappropriate. But I subpoenaed every pain management specialist in
the state and let the board know I was prepared to ask each one, "Here's
a man who's in severe pain. What's the right dosage?" And they would reply,
"I don't know. It would have to be titrated to find out." And I would then
ask, "Well, who can tell me what the correct dose is?" And the answer would
be, "Nobody." And I had the whole thing filmed. When they saw where this
was heading, they called a recess, and when they came back, their expert
witness said that on further review he thought the doses were appropriate
except in two cases. The over-prescribing complaint against me was dropped,
but the board upheld the charge related to promoting my practice. I am
appealing that in the courts here.
But although the medical
board failed to find me guilty of over-prescribing, they already won because
I had to go through this. They punish me first, charge me second, then
10 months later, these doctors who desperately wanted to find me guilty
of over-prescribing found zero patients to hang a case on. They had to
have some reason for closing my practice and forcing 400 patients out of
state, so they used the administrative violation as a justification.
Chronicle: So you beat the
medical board, but you're still not in practice. Can you tell us about
the role of the DEA in this?
Dr. Kale: It's funny. About
a month before the medical board subpoenaed my charts, a Walmart pharmacist
asked the local DEA agent who runs the cleanest program in the state. He
pointed to my practice. In fact, that agent has referred people to me,
including members of law enforcement families. After the board charged
me, that same DEA agent called and said he had an order from the medical
board to pick up my DEA certificate, which is necessary to prescribe controlled
substances. That was a lie. If the DEA wants your certificate, they have
to provide a hearing for you to defend yourself. But if you surrender your
certificate, there is no need for a hearing. "Just put it in the mail and
we can keep this from getting messy," is what he told me. So what happened
is the DEA fraudulently obtained my certificate, and now they won't give
it back. If you are a pain management physician without a DEA certificate,
you cannot do your job.
The state medical board wrote
a letter saying there was no reason to lift my certificate, but that hasn't
made a difference. In 1989, Congress said the DEA was to follow the recommendations
of the states in granting certification, so now what happens is you have
to get the state licensing authority to write a letter of support. Well,
I have that. By law, the DEA is supposed to be concerned with legal prescribing,
not what is medically correct. To be legal, you have to have the certificate
and you have to be prescribing for legitimate medical reasons.
If a physician gets in trouble
with the medical board, the board will make it clear that if he accepts
punishment quietly he will get probation. So the physician, who wants to
get his practice back up and running agrees, but then the DEA shows up
and says, "By the way, we have this felony warrant for illegal diversion
of controlled substances, the medical board said you over-prescribed and
you agreed, so we are using the medical board's action to decide legitimate
The medical board always
found itself correct in jerking someone's license, and that's no surprise,
since it acts as judge, jury and executioner. But in my case, it was the
first time they had to back down, so there was no question of a criminal
prosecution by the DEA. So I called them up and said, "Where's my certificate?"
The DEA responded that because I had been found guilty of improperly promoting
my practice they could do that. They also said that I had voluntarily surrendered
my license, when in fact I had been deceived. Now they say they will have
to do an investigation. "We'll decide if it's in the public's best interest
for you to be practicing medicine," is what they told me. This is a witch
hunt by the DEA. There is no need for this. There are no prescribing violations,
and the state medical board has written a letter of support. The DEA is
trying to intimidate me, trying to make me understand that I am subject
to its whims. They have held up returning my certificate for three months
The DEA knows better. I've
had agents tell me, "They taught us all about you doctors in DEA school,
about how you'll start prescribing to anyone so you can get that new Mercedes."
But I never saw more than 15 patients or so in a day and I never made more
than $75,000 a year. I keep immaculate records, and I am well qualified;
in fact, I have taught about pain management at numerous institutions in
the area. My patients complained about all the recordkeeping. Heck, 21
of my patients were nuns from the local convent. You can't call them drug
addicts. Every pharmacist in town has written letters of support for me.
The DEA has no business being
involved in this and no business withholding my certificate. This is not
about injury or death or complaints, this is about teaching me a lesson.
The DEA has to justify its existence. It is an ineffective agency. Their
rhetoric is about the number one drug problem being Oxycontin and prescription
drugs, but I live in a meth capital. Every month here, there are 40 to
80 mentions of meth, 30 to 50 mentions of pot, 20 to 40 mentions of cocaine.
We might see prescribed medicines mentioned in the crime pages once or
twice a month. How can they say prescribed medicines are the number one
problem? Not in this community. Now, lack of access to those medications
is becoming a big problem.
Chronicle: How did you get
involved with Dr. Ron Myers, the American Pain Institute, and the National
Pain Patients' Coalition?
Dr. Kale: Dr. Myers was in
town covering for Dr. Terry Brackman, a physician who had had his license
suspended and his DEA certificate lifted. Ron Myers saw Breckman's patients
being called drug addicts, and he started getting into conflict with the
medical board over that. He called me up and asked me to join him in what
he was doing. Last year, Myers and the Pain Coalition were trying to get
the Arkansas Chronic Pain Relief Bill passed, and they asked me to speak
to the state legislature, which I did. The medical board and other opponents
of the bill said chronic pain wasn't that big a problem, and besides, there
were better ways to treat pain than the use of narcotic pain relievers.
I told them about one of my patients whose physicians would not prescribe
sufficient medications to treat his pain. They wanted to put him on an
internal morphine pump, so they refused to up his pain meds. I gave this
guy his life back, while these other doctors were torturing him by withholding
medicine so they could put him on the pump.
I called for the resignation
of Dr. Roy Jouette, the head of the state medical board. Eight days later
they suspended my license. They also told people not to hang out with Dr.
And now I will, I hope, be
able to attend and address the Pain Patients Rally and March on Washington
next week. But I'm broke and my back hurts and it's a 15-to-18 hour drive
from here to Washington. We'll see.
Chronicle: What has happened
to your patients since your practice was effectively shut down?
Dr. Kale: Some went through
withdrawals and have gone back to doing nothing again. These are people
who had been made productive and now they're sitting back in the chairs
at home suffering. Their lives have gone to shit again. There has been
at least one suicide. Some have found local doctors who will at least under-treat
them. Many now drive hours to Tulsa or Dallas or Houston or Springfield,
Missouri, to find a doctor who will treat them properly. 60 Minutes II
is working on a story about my case, and they followed one of my patients
to Tulsa. She owns three businesses and just wants to be able to function.
After I was shut down, she went to her primary care physician here to fill
her prescription for MS Contin, and before she even got to see the doctor
his staff told her he wouldn't prescribe that. And what's worse, he wouldn't
even see anyone who was on medications like that. She was denied not only
pain treatment but even regular medical care. That's how scared her doctor
was, and he's not the only one.
Chronicle: What has the impact
been on you?
Dr. Kale: Mine is the one
good, clean case. There is no controversy anymore, although the mass media
has never asked about the original charges, why I was suspended on an emergency
basis. They never asked why the board had to come up with a technical rules
violation, they never asked why not just find him innocent? The answer
is if you beat this guy to death, you send a strong message to all the
other doctors. And it's working. We have clinics here now that have signs
saying "We don't prescribe pain medicines here, so don't even ask." I've
talked to other doctors here about appearing on 60 Minutes II, but they
are afraid. My own physician won't appear. I've talked to other doctors
who say they have patients who are not getting the medicine they need and
they are not treating them because they're scared. And they don't want
to go public either.
My savings are about eaten
up. I had back surgery recently and have a small disability policy from
that, but we've gone heavily into debt. We've got two kids at Stanford,
and I had to sell the kids' cars, which is a shame. We will try to sue
the state medical board for violating my civil rights, but that is a tough
road. It is protected from most suits, unless we can prove malice and that
it didn't follow its own rules, but I think we have a fairly strong argument
there. I'm not backing down. I've always been a fighter and I can take
my lumps, but the hard part of this is the effect on my family and the
sacrifices they are having to make. Still, I can't keep quiet when I see
what is going on and so many people are suffering.