Ordeal
of
the
Pain
Doctors:
Weitzel
Facing
Prison
for
Minor
Records
Violation,
Still
Anticipates
Vindication
in
Manslaughter
Case
9/20/02
DRCNet has tried to follow the travails of physicians who run afoul of the DEA over their medical practices. Three weeks ago, we broke the news of Virginia pain specialist Robert Hurwitz's decision to shut down his practice before the DEA did it for him. Last year, we reported on the ordeal of Utah psychiatrist Dr. Robert Weitzel, who was charged, convicted, and serving time in prison for killing five elderly patients with opioids when his conviction was overturned after an appeals court found that the prosecution had hidden expert testimony that vindicated him (http://www.drcnet.org/wol/197.html#drweitzel). Weitzel may be out of prison -- and he is no longer working as a waiter, as viewers of a March 60 Minutes report may remember -- but he is hardly out of the woods. Even as he worked to help his lawyers prepare his defense in a second trial on the original manslaughter charges, Weitzel was jailed for two days last week after being sentenced for violating Medicare rule-keeping requirements. "I was charged with multiple counts of not properly recording wastage of opiates," Weitzel told DRCNet. "These were charges that would never have been brought if the DEA wasn't hounding me," he said. Although the DEA accused of Weitzel of putting the wastage in his arm (and Utah prosecutors once accused him of smuggling it to the hospital to kill elderly patients), Weitzel has passed more than 120 drug tests, including those administered during the period in question. It amounted to 30 or 40 doses in a period of months in a busy practice, he said. "I was broke, couldn't afford a lawyer for this, and was still facing a retrial on the original charges, so I got a federal public defender who told me to take plea," Weitzel said. "He said there was a 75% chance of probation; the sentence guidelines were zero to six months, and nobody went straight to prison on those short federal sentences." He was in for a rude surprise. US District Court Judge Dee Benson, a prominent Utah political figure with close ties to Sen. Orrin Hatch (R-UT), was assigned the case after the original federal judge became ill. At the sentencing hearing last week, federal prosecutors were allowed to argue for an upward departure in the sentencing guidelines, while defense attorneys were denied a chance to bring in witnesses. Benson ruled in favor of an upward departure, sentenced Weitzel to a year in federal prison, and ordered him jailed immediately. "We got blindsided," said Weitzel. "The upshot was I was going to jail right then, right there. I was freaking out." Weitzel got out two days later, but only at the price of promising not to appeal his sentence. "They would let me out to assist in my defense if I waived my right to appeal. I can stay out until five days after the end of my criminal trial," he said. Despite widespread criticism of the original prosecution of the case, including a feature segment on CBS TV's "60 Minutes," and a growing chorus of support for Weitzel from the medical profession, Davis County prosecutors decided to retry Weitzel and have set a trial date for October 30. But their case is much weaker this time around, especially because Dr. Perry Fine, the recognized authority on pain treatment and end of life care in the region, will take the stand for the defense. It was Fine's testimony that Weitzel's treatment of patients was well within medical standards that prosecutors hid from the defense team in the first trial. Weitzel has always maintained his innocence and that he was a victim of vindictive prosecution and has created a web site (http://www.weitzelcharts.com) where anyone interested can review the voluminous evidence supporting him, including the actual medical charts of the dead patients -- all of whom were elderly, mentally ill and terminally ill. "I am helping my lawyers prepare my case," said Weitzel. "We are digitalizing all the data for the trial. Those phony experts and prosecutors will pay this time. I'll be able to show that they're full of it," he said. "We have 42 experts, including Dr. Fine, ready to testify on my behalf." Still Davis County Prosecutor Melvin Wilson continues on his course. "They can't let this go because they screwed up so bad," said Weitzel, adding that a growing contingent of Utah doctors are urging the Utah Medical Association to denounce his prosecution as the criminalization of normal medical care. "You give a dying patient in pain morphine, they die, you get charged with murder -- what's that do to end of life care?" he asked. Weitzel blames the war on drugs for his predicament. "The drug war is heating up, the drug warriors are scared as hell that people will get fed up with prohibition, they know they are losing the war, but they continue to strike out and cause problems," he said. "They are going after legitimate physicians; they went after Purdue Pharma (manufacturers of Oxycontin). I hope the medical and pharmaceutical professions are starting to see things differently, starting to understand that the DEA doesn't know or care the first thing about medicine." Weitzel has a legal defense fund that can only accept donations until October 1. To make a contribution, visit his web site.
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