Pain
Wars
I:
Utah
Pain
Doctor
Gets
Conviction
Overturned,
Still
Facing
Legal
Hurdles
and
Career
Ruin
8/3/01
DRCNet has reported with increasing frequency on the cases of physicians, usually pain specialists, who have run afoul of zealous prosecutors determined to paint them as Dr. Feelgoods handing out pills like candy or as mad scientists out to kill patients with pain-relieving opioids. The most common pattern recently has been prosecution of Appalachian pain doctors for prescribing Oxycontin, a powerful, time-release opioid analgesic, but the virtual war on doctors extends nationwide, driven by authorities eager to crack down on Medicare fraud and diversion of medicines into the black market. "This is part of a national enforcement policy led by the federal government that is targeting physicians," Ronald Libby told DRCNet. Libby, a professor of political science at North Florida State University in Jacksonville, is currently conducting research on the topic. "There are hundreds of cases like this out there, and I think this is a draconian response, especially with the Oxycontin. But it goes further than that," Libby said. "If you look at Department of Justice reports going back to 1997, you see that this is clearly part of an enforcement program." While the program reflects efforts to tackle legitimate concerns about the health care industry, according to Libby, doctors end up being the targets of choice. "Federal officials mention health care fraud and drug abuse as major issues, and US Attorneys across the country are expected to produce indictments," said Libby. "But if you go after the HMOs or the hospitals, they have all the resources and all the money to defend themselves. Physicians are the easiest targets. They don't have lawyers, they don't know all the intricacies of the law, they're sitting ducks." Utah psychiatrist Dr. Robert Weitzel knows the feeling. He recently walked out of Utah's forbidding Point-of-the-Mountain state prison after his conviction for allegedly killing five patients in a geriatric psychiatric unit was overturned for prosecutorial misconduct. "I did six months and a day before the judge threw out the verdict," Weitzel told DRCNet, "and I still face both federal and possibly another state prosecution." Weitzel's problems began when he was working with psychiatric patients at the Salt Lake Headache Clinic. He would occasionally prescribe single-dose opioids for patients suffering acute migraine pain, which resulted in an office visit from the state office of professional responsibility and the Drug Enforcement Administration (DEA) in 1996. "When I asked why I was being investigated, they told me it was because I was a psychiatrist prescribing opiates," said Weitzel. The raiders demanded a urine sample from Weitzel, took copies of patient charts and left, only to return six months later -- this time with guns on hips -- to take more patient charts. In the meantime, said Weitzel, DEA and state investigators had been questioning patients about the quality of care they received, causing patients to leave the practice. "They suspected I was diverting drugs for my own use," Weitzel told DRCNet. "I wasn't. I've been urine tested more than 80 times; I'm always clean." With that investigation apparently closed, Weitzel moved to a new position as assistant medical director of the Geropsychiatric Unit of Davis Hospital in Layton, Utah. He was investigated again -- for Medicaid fraud -- but no evidence of fraud was found. DEA investigators, however, heard a rumor that five patients had died in the winter of 1995-96, dug deeper and concluded that local prosecutors might want to take a closer look. (The fact that patients in a unit dealing with elderly people with psychiatric problems as well as other preexisting medical conditions might sometimes pass away was apparently beyond investigators. Dr. Weitzel has made the patient charts, as well as copious other materials related to the case available at http://www.weitzelcharts.com online.) Weitzel was indicted and arrested on five counts of first degree murder in August 1999. He was held behind bars until he raised $125,000 in bail bonds. And even though it had held no hearing, the DEA sent a letter to Weitzel's primary hospital telling them that Weitzel was "no longer registered." The hospital then placed Weitzel on leave from the medical staff. He has not been able to practice medicine since that day. To add to his woes, the federal government resurrected its previous investigation into his practice at the headache clinic and indicted him for prescription drug fraud. According to the feds, Weitzel was diverting opiates for his own use. "Funny, isn't it?" said Weitzel. "This was a dormant three-year-old investigation, they never filed any charges until after Utah charged me in the geriatric unit case, then they came up with 22 counts of obtaining controlled substances by deception. I still have to fight this, but all I can afford is a federal public defender. He's telling me to plea bargain." The murder trial on state charges took place in June 2000. While prosecutors were able to produce medical witnesses who testified that Weitzel's care was beyond the pale for accepted medical practice, the defense was forced to ask the judge to order the prosecution to quit harassing potential defense witnesses. One affidavit filed by a local physician for the defense said the doctor was told by the state that he "wouldn't be too popular if he testified in the Weitzel trial." After a five-week trial filled with complex and competing medical testimony, Davis county jurors took five hours to return with verdicts finding Weitzel guilty of two counts of manslaughter and three counts of misdemeanor negligent homicide. Weitzel went off to prison, but his defense team quickly uncovered more evidence of prosecutors tampering with potential witnesses. This time, however, the prosecutorial misconduct rose to a level high enough to get Weitzel's conviction overturned. "The state's main witness, Dr. Brad Hare, is an anesthesiologist who does do some pain work, but is opiophobic," said Weitzel. "But Hare told the prosecutors that if they wanted a real expert on end-of-life pain management, they should go see Dr. Perry Fine at the University of Utah. The prosecutors talked to Fine, he told them they didn't have a case, and they suppressed it. That was potentially exculpatory evidence that the state should have provided to the defense," Weitzel explained. "They did not do so. In fact, Dr. Fine testified that they told him to keep quiet." (Fine's testimony in the post-conviction hearings that led to Weitzel's release from prison is available at Weitzel's web site. It makes abundantly clear why the prosecutors wanted to keep him quiet. For example, Fine testified that: "Again, my evaluation of Dr. Weitzel's care as it pertained to these particular patients, it fell within the bounds of what is viewed as ethical and appropriate care for patients in those circumstances." More broadly, Fine testified that: "As a result of a lot of work in the past few years, it's been determined that the majority of patients who are in institutional care settings in the geriatric population are underevaluated and undertreated for chronic pain conditions. And the range is between 50% and 80% of those patients in fact have pain-producing conditions... There are 10,000 or more per year in this state alone who die under uncomfortable circumstances for whom physicians would be able to provide palliative care.") That testimony so undermined the state's case that Weitzel's anger at prosecutors for withholding their knowledge of Fine's willingness to testify in favor of Weitzel is easily understood. "Prosecutors have a special duty to be fair and not crush people," said Weitzel. "When Fine testified that they told him to keep quiet, that's obstruction of justice," he said. "And when they denied that before the judge, that's perjury. There's no way they'll get off without some punishment." Not if Weitzel can help it. He filed ethics complaints against Davis County Attorney Mel Wilson, Deputy County Attorney Steven Major and Assistant Attorneys General Charlene Barlow and Elizabeth Bowman with the Utah State Bar's Office of Professional Conduct in April. The crux of his complaint is precisely their failure to notify the defense of Fine's availability. The bar refuses to comment on pending cases. "Look," said Weitzel, "I think Mr. Wilson wanted to be a state judge, and he thought he had a murderer on his hands and he trumpeted that everywhere. Then he got the bad news from Perry Fine, but instead of backing down decided to continue with a bad prosecution, and that's where he really went wrong. This prosecutorial misconduct is really disgusting. And they try to get back at me by threatening me with another trial." Neither is Weitzel particularly happy with the state's leading physician's organization, the Utah Medical Association (UMA). "Organized medicine, the UMA, has not been helpful at all. There are people in the UMA who have been very helpful and have done what they could," he told DRCNet, "but if you are tainted, you really cannot expect the help of the organized people, they will run the other way." The UMA, for its part, says it is concerned about the general issue of proper prescribing of pain medicines, but declined to address the particulars of Weitzel's case. "We are very concerned about trying to understand where is the line between non-standard practice and criminal behavior," UMA spokesman Mark Fotheringham told DRCNet. "We simply want to know in a general way where that line is, so doctors can be assured they are not crossing it." But, Fotheringham assured DRCNet, "we have seen no evidence of a chilling effect on physicians. The doctors we've talked to see this case as an aberration." Weitzel does not agree. "That's ridiculous," he snorted. "When doctors look at actual care I gave, they say it was normal care. I've had doctors telling me I didn't prescribe enough opiates. I've seen one survey in which 20 out of 30 physicians said what happened to me makes them less likely to prescribe opiates. I'm dismayed and somewhat disheartened by the UMA's lameness on this." He is not alone. The Association of American Physicians and Surgeons (AAPS), a 5,000-member organization based in Arizona, has strongly backed Weitzel, and has taken some knocks from the UMA for doing so. "I think we're seeing prosecutors run amok all over the country, and physician groups are telling physicians eveything will be fine," AAPS executive director Jane Orient told DRCNet. "We've heard from many, many doctors in Utah, and they say they will be hesitant to prescribe pain medications. Doctors should be standing up for their colleagues," she said. AAPS's efforts in favor of Weitzel prompted UMA head Dr. Val Johnson to lash out at the group. Johnson also attacked the Salt Lake Tribune, which had editorially worried about a chilling effect on doctors and wrote that "the medical profession is more concerned with protecting its members than providing competent care to patients." The AAPS is a "relatively small" group that is not "representative of the medical profession," responded Jones, and "speaks for no one but its members." Then, blaming the victim and his defenders, Jones wrote that: "If there is any 'chilling effect,' it has come from uninformed or incomplete reports, warning that the Weitzel case marks the beginning of a deliberate persecution of physicians that may eventually result in patients having to endure unrelieved, intractable pain." But, Jones reassured the Tribune's readers, "The Utah Medical Association, however, has never held this opinion and has tried to educate all interested parties that there is no evidence of a state-sanctioned witch hunt against physicians who legitimately use narcotics to treat pain." And anyway, the AAPS is a "right-wing" organization, UMA's Fotheringham told DRCNet. "Well, we're in favor of freedom and the sanctity of the physician-patient relationship," said Orient, "and we're against interference in medicine, whether it is the government or the insurance companies. We do take a very active position in defense of individual physicians like Dr. Weitzel, who are being persecuted unjustly. We also advocate for free market positions, such as medical savings accounts. We encourage doctors to be independent; we want to avoid conflicts between medicine and the bottom line." Professor Libby also sees great danger in the current federal government posture. "Medicine has been criminalized," he told DRCNet. "Any physician can be indicted. Once they get a whistleblower to contact the Justice Department and claim fraud has been committed, they go in with guns and gather the charts, shut down all the computers, stop all activity, and go fishing until they can find something they can use against a physician," he said. "There are dozens and dozens of these cases where doctors are indicted, convicted, and sent to prison," Libby continued. "These are political trials, they're not interested in guilt or innocence. This is a largely symbolic political agenda, scapegoating doctors for the ills of the health system. In part it is driven by the effort to uncover fraud, but the war on drugs is also connected. DEA, FDA, all these agencies are focused on physicians." Driven by the health reform imperatives of the Clinton administration, the attack on physicians has taken on a life of its own, said Libby. "Whistleblowers can get some of the money they allegedly recover, and doctors are treated like drug dealers, their assets seized -- and they go to the investigating agency, not into Medicare," Libby explained. "Dozens of physicians are languishing in jails right now. You tell me if that makes any sense." Certainly not to Dr. Weitzel. "I'm out of prison, but I've lost everything. Right now I have the clothes on my back and a few personal items. I'm living with a friend, eating lots of tuna fish. I had a garage sale when I got out of prison, to try to pay for my lawyer for the upcoming round. But I don't have enough, and I'm looking at a real difficult situation." But Weitzel is taking it all with unusual calm. "Hey, I'm a Buddhist," he said. "The way I see it, I'm paying off all my bad karma right here. I've learned a lot, and this will hopefully lead to better care for patients because people will come to see that the elderly, dying, and demented are clearly not receiving adequate treatment for pain." But he is not completely tranquil. "I've been caught up in this war on drugs. There is a real tension between the drug warriors and doctors who are just doing their job," he said. "It is ridiculous that we allow this issue to be dominated by a moralistic Victorian stance. Prohibition just hurts us as a society. I'm strongly opposed to our current war on ourselves." Weitzel will next appear in state court August 9 for a pretrial conference on his upcoming second trial. He will appear in federal court August 20 to face the counts of fraudulently prescribing drugs for his own use. (Visit Dr. Weitzel's web site at http://www.weitzelcharts.com for further information, including how to donate to his legal defense fund.)
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