Chronic Pain Doctor and Pharmacy Under Assault in California Case
Chronic Pain Doctor and Pharmacy Under Assault in California Case 8/22/00

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On February 18, 1999, heavily armed officers from a raft of California law enforcement agencies with media in tow, simultaneously raided the practice of Dr. Frank Fisher and the Shasta Pharmacy, ransacking the facilities, seizing records and assets, and arresting Dr. Fisher and pharmacy owners Steven and Madeline Miller. All three were arrested and charged with multiple murder counts -- the idea being that inappropriately prescribed narcotics led to overdose deaths -- and a host of health fraud crimes. The California Attorney General's office issued a sensational press release announcing the apprehension of a murderous major drug ring trading in prescription drugs.

One by one, however, the basis for murder charges dropped away. One of the "victims" was a woman killed in a car crash; she had been a passenger in the car. Another was a former Fisher patient who had been kicked out of the practice because the doctor suspected abuse. The third was a woman whose husband and son swear that Dr. Fisher gave her years and a quality of life that she wouldn't have otherwise had, and helped raise money for his legal defense fund.

Dr. Fisher and the Millers remained in jail unable to raise bail -- an outlandish $15,000,000 in Fisher's case -- for five months, until a judge at a preliminary hearing threw out the murder charges as totally lacking support. At last report, prosecutors have been reduced to offering plea bargains to a misdemeanor offense, which Fisher and the Millers confidently refused.

A year and a half later, questions of police and prosecutorial misconduct linger, and hundreds of patients remain un- or under-treated for severe, chronic pain.

The Fisher/Miller case grew out of Fisher's efforts to treat patients suffering from chronic pain with opiates, and the Millers' willingness to work with and advocate for MediCal patients trying to get their treatments covered by Medical in accordance with California law.

The law seems clear. The 1997 Patients' Bill of Rights, enacted by the California legislature, says:

"... A physician who uses opiate therapy to relieve severe chronic intractable pain may prescribe a dosage deemed medically necessary to relieve severe chronic intractable pain as long as the prescribing is in conformance with the [1990] California Intractable Pain Treatment Act, Section 2241.5 of the Business and Professions Code."

But state law enforcement officials didn't see it that way. In what can most charitably called willful ignorance of the state law, and could well be described as malicious prosecution and abuse of authority, these officials deemed Dr. Fisher a "Dr. Feelgood" and the Millers willing accomplices.

The Fisher/Miller case brings to the forefront critical issues surrounding the problem of pain relief for the estimated 30-60 million chronic sufferers. As a direct result of the war on drugs, dating all the way back to the 1914 Harrison Act, the ability of doctors to prescribe sufficient quantities of opiates to bring relief from pain has been severely undermined by law enforcement's ability to define chronic pain relief as a drug abuse and law enforcement issue.

The Week Online discussed this case with Dr. Fisher, the Millers, and D.J. Black, the husband of one of Fisher's patients, during the Shadow Convention:

WOL: What is the genesis of this case?

Fisher: The problem goes back to the 1920s and the era of prohibition, when drug use was viewed as a moral problem. If drugs were made illegal, then addiction would vanish. From the beginning, right after the Harrison Act, federal officials started busting doctors as if they were drug dealers, and that has continued to this day. But recent pain research has indicated that addiction among chronic pain patients is extremely rare, something like one in 3,000, and then we started getting good legislation such as the 1990 Chronic Intractable Pain Act here in California. Within five years, the medical board had issues guidelines for pain treatment and I started following them. That was unusual, though, because the other doctors kept their heads down and their prescriptions low because they didn't want to be noticed. They knew what would happen.

Then at the beginning of 1998 the Patients' Bill of Rights passed, and I saw this as a mandate to stop under-treating my patients. I followed the guidelines to help patients be the most functional they could be. I had already attracted most of the serious pain cases into my practice because no one in Shasta County would treat them. When I titrated [gradually increased the dosages] up, the computers started spitting out numbers that looked like I'd done something unusual.

I had already come to the Attorney General's attention a couple of years earlier, because when pharmacies notice a high rate of such prescriptions they call in the authorities, and that's how the authorities decide to go after a given doctor. They don't actually look at his practice, they send in a couple of agents to do a sting, they write up an enormous list of charges to intimidate, and the doctors end up taking a misdemeanor as a plea bargain. They charged me with 99 fraud felonies, then offered to deal. I turned it down, so a large element of this case is retaliation for that. I bucked their system by prescribing the right amount of medication and by not taking their deal, so they started looking around for bodies. They charged me with three murders and a million dollars worth of medical fraud, and they charged the Millers as well.

WOL: Mr. Miller, it was your pharmacy that was handling Dr. Fisher's prescriptions?

Mr. Miller: We filled more than other area pharmacists, maybe half of them. We took it a step further and began giving the patients prescriptions before Medical agreed to pay for them. We helped the patients file for fair hearings to get Medical to pay for adequate medical care.

Mrs. Miller: We saw how Medical was treating Medical patients, and they were breaking court orders dating to 1990. All of a sudden, Medical started denying all of the patient claims without notifying the patients that they are entitled to appeal. During the time when the cases are on appeal, Medical is supposed to give patients aid pending approval until they go before the trial judge. The judge commended us for our efforts on behalf on patients.

Mr. Miller: Two weeks after the judge's decision in the patient's favor came down in the first of those hearings, we were all arrested.

Mrs. Miller: Medical was being really nasty because no one had ever challenged them before. We had a meeting with Medical and Sen. Leroy Greene [author of the Chronic Intractable Pain Act], and Greene told the bureaucrats that they were breaking the law by not approving the pain treatments. We were trying to educate Medical and the Attorney General's office about the new laws.

We went the extra step for our patients by helping them file and document appeals. We saw patients improving with pain treatment and helped them in various ways. We told the bureaucrats that they had forgotten that each little form they denied represented a living, suffering person. They didn't like that, but they weren't the ones looking at patients across the counter who were ashamed or embarrassed because they couldn't afford their medicine. It got to be a very personal thing for us.

Dr. Fisher: I'd like to add that the Millers went so far as to pay out of their own pockets for prescriptions for these patients, assuming they would win on appeal.

Mrs. Miller: This was a case of retaliation. They were very angry that we challenged them. We just wanted our tax dollars to be going where they should be going to help poor people who needed medical care. What was going on was wrong.

WOL: Were you two also arrested and charged with murder? Why?

Mr. Miller: Yes, even though Madeline is not a pharmacist. She was the office manager.

WOL: How long had the pharmacy been in business?

Mr. Miller: Since 1986, and we never had any problems before we started fighting with Medical.

WOL: Tell us about the day of the arrest.

Mr. Miller: About 15 cops came in dressed in riot gear and carrying automatic weapons. The first thing I thought was we were getting robbed. I asked for identification and they put a gun to my head and said, "this is all the ID you need." They threw me on the floor like it was a raid on a crack house. They questioned us before they arrested us, to evade the Miranda warnings.

Mrs. Miller: I started screaming at them that they were there to retaliate for our advocacy for pain patients. They shoved me back and said, "yeah, we know all about you, you're a pain in the ass."

WOL: Welcome to the war on drugs. So, now that the murder charges have been dropped, are all three of you still defendants on the manslaughter case?

Dr. Fisher: Yes, and a million dollars worth of fraud charges. Madeline doesn't have any manslaughter charges, but we're all charged with conspiracy to commit MediCal fraud.

WOL: How many years are you looking at?

Mr. Miller: We don't even think about it. They have offered us various plea bargains, but our attorneys just laughed. They know they've done wrong, they audited the pharmacy and we came out clean.

WOL: Are you getting support?

Mrs. Miller: From everywhere. We've been part of the community for a long time. While we were in jail, only the prosecution's side got heard. That is changing now.

WOL: Dr. Fisher, you were arrested the same day?

Dr. Fisher: They detained a dozen employees. This is a community health center. They also raided my house and the Millers' house and three other employees' houses.

Mrs. Miller: They had a key to our house, but they still broke the door down, ransacked the house and left it wide open. You feel so helpless in jail. They did everything they could to hurt us. They seized our bank account again.

WOL: Who is responsible for this? Is it the state or is it local authorities?

Mrs. Miller: The state of California. Our Shasta County DA didn't have anything to do with this.

Dr. Fisher: They hit five or six locations all at once and announced it was the biggest drug bust in the history of Northern California.

WOL: Dr. Fisher, were you working outside accepted medical practice?

Dr. Fisher: No, but the medical board investigators don't seem to understand this. They didn't know what the laws are or what the state of medical practice is.

WOL: Are you completely confident that you will be exonerated?

Dr. Fisher: Absolutely.

Mrs. Miller: And we will continue on. You know, people are suffering, why should people have to suffer when they can have adequate pain treatment? But the doctors are scared and the pharmacies are intimidated.

Dr. Fisher: The problem is we've spent the better part of a century telling these cops that these drugs are evil, and now they are having to adjust to new medical realities, and they haven't come through that transition in very good shape.

WOL: Mr. Black, please tell us about your wife and Dr. Fisher's
treatment of her.

Mr. Black: Her name is Tony Briano. She has chronic back pain and other health problems. Before she starting seeing Dr. Fisher she was bedridden. After seeing Dr. Fisher, she got her life back. She was about to return to work.

WOL: So you saw real observable functional changes in her?

Mr. Black: Oh, absolutely. After he got arrested, I saw it turn back the other way, and she went right back to bed when her pain meds ran out. For a time I had to take her to Eugene, Oregon, a six-hour drive, to be treated, and that wore her out. Because of the stigma of being a Dr. Fisher patient, no one was willing to take her. They were all deadly afraid of the police. It was financially draining on us. Now we have a local doctor, who provides some pain control. She just had another back surgery, which she probably wouldn't have needed if Dr. Fisher hadn't been taken down by the [California] Department of Justice.

WOL: Dr. Fisher, you're the doctor here. Is Mr. Black's description correct?

Dr. Fisher: Yes. She was functioning just fine. Her back had her hunched forward. She could have declined further surgery if she had access to adequate pain control.

Mr. Black: The state was a real obstacle to getting her medical records after Dr. Fisher was arrested. We got the run around from the state. Eventually two agents of the Department of Justice came saying they were bringing the medical records, but they didn't bring the records; instead they wanted her to testify against Dr. Fisher. Three times, they told us "if you do not testify against Dr. Fisher, you will get no help from the state." That was agent John Dodson. It took us 18 months to get her records.

Mrs. Miller: The state should have supplied every patient with copies of their medical records, but they did not. This left the patients in a real bind. Patients couldn't get proper treatment, and new doctors would have to redo all these expensive tests, costing the state even more money. The state didn't care.

WOL: When is your trial, and what do you think the state will do?

Dr. Fisher: October 17th. Our local prosecutor was elected after this occurred. My lawyer, Patrick Hallinan, once described this as "a malignancy left over from the Lungren administration, which a little radiation therapy ought to cure." But it's hard to predict what will happen, because this case in so bizarre. But we're ready to go to trial because we're so confident and because the issue of pain control is so important to millions of people. We're not backing down.

WOL: Why hasn't the local prosecutor intervened?

Dr. Fisher: Why he hasn't stopped this along the way, I can't say. They have also spent millions of dollars already.

WOL: Anything else you want to say?

Mrs. Miller: This is all because of the war on drugs. If you were Dr. Fisher's patient, you were seen as an addict. This is like something you'd see on TV. It's absolutely frightening to see the government come in and charge you with these baseless crimes. It's all because of the drug war, which is really a war against people. What they do to people in jail and prisons is a crime.

Dr. Fisher: There have been other cases, but nothing as bizarre as this. And the tragedy is that now patients are dying for lack of treatment. The judge has tossed out the murder charges against us, but now patients are dying.

WOL: How has this affected you financially?

Dr. Fisher: It's been devastating, we've all been wiped out. But it goes further than that, there's the devastation of the patients' lives as well. There are tens of millions of patients who are not getting adequate treatment because of this situation. We are looking for funding; we owe Patrick Hallinan about $125,000 for the defense, and if we don't get it, there's a chance this will all go down the drain; we'll have to take a plea.

Your help in the form of letter writing or financial contributions will help Dr. Fisher, the Millers, and chronic pain patients everywhere. To get involved or make a donation, contact: Dr. Frank B. Fisher Legal Defense Fund, 1705 Julian Court, El Cerrito, CA 94530, (510) 233-3490, frankbfisher@aol.com or visit http://www.drfisher.org on the web.

Patients and others interested in pain control for all who need it should check out the American Society for Action on Pain at http://www.actiononpain.org online.

-- END --
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Issue #150, 8/22/00 Los Angeles Shadow Convention Energizes Reformers for November and Beyond | Chronic Pain Doctor and Pharmacy Under Assault in California Case | Interview with Chris Conrad | Apprendi Sentencing Ruling Begins to Bite | Heroin Injection Center Wins Approval in Sydney | Appeals Court Denies Government's Request for Emergency Order Halting Oakland CBC from Distributing Marijuana | RESOURCES: Drug War Facts Updated, TomPaine.com Drug War Feature This Week, Alternet, Spanish Language Documents, More | Benefit Screening for Jack Herer | Errata | Alerts: Colombia, Mandatory Minimums, California, New York | HEA Campaign | Event Calendar | Job Listings (NYC): Streetwork Project | Editorial: No Fringe Group
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