DRCNet Interview: Dr. Robert Kale, Pain Management Specialist, Fort Smith, Arkansas 4/16/04

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Dr. Robert Kale, a double board certified anesthesiologist and pain management specialist, as well as a practicing acupuncturist, ran a well-regarded pain management clinic in Fort Smith, Arkansas, until he was hauled before the Arkansas State Medical Board on a charge of over-prescribing opioid pain relievers in August of 2002. He has since been vindicated by the medical board, but the Drug Enforcement Administration refuses to return his DEA certificate, which allows doctors to prescribe controlled substances and is crucial to a pain management practice.

Already active in issues related to the treatment of chronic pain before his run-in with the authorities, Dr. Kale became even more active. He joined with Dr. Ronald Myers of the National Pain Institute (see related story this issue) and Arkansas pain patients to push through the state's pioneering Chronic Pain Relief Act last year, and has emerged as a tireless fighter against drug war intrusions into the practice of medicine. Dr. Kale, along with another harassed Arkansas physician, Dr. Terry Brackman, is set to speak at the Pain Patients Rally and March on Washington scheduled for next week, whose primary purpose is to call for congressional hearings on DEA attacks on pain physicians and patients. In the meantime, his practice remains shuttered, and his patients on their own, more collateral damage in the war on drugs.

DRCNet spoke with Dr. Kale in Fort Smith on Wednesday.

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 suspension?

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 medical practice."

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 now.

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. Myers.

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.

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Issue #333, 4/16/04 "BUSTED" Bustin' Out All Over As Flex Your Rights Flexes Its Video Power | Alert: Help Free Richard Paey and Stop the Florida Prescription Monitoring Program Bill | DRCNet Interview: Dr. Robert Kale, Pain Management Specialist, Fort Smith, Arkansas | Pain Patients Head for Washington, Demand Congressional Hearings | Newsbrief: Connecticut Medical Marijuana Bill Wins Committee Vote | Newsbrief: Spanish Pharmacists Support Catalonian Pilot Study on Marijuana in Pharmacies | Newsbrief: Federal Civil Rights Lawsuit Filed In California "Hippie Profiling" Case | Newsbrief: US Drug Czar Blames Canada for Marijuana Emergency Room Admissions | Newsbrief: Mexican Governor Suspends Every Detective in Drug Corruption Probe | Newsbrief: Peruvian Drink Boasts Coca Kick | Protect Live Music -- National Day and Night of Outrage This April 24 to Protest RAVE Act Abuses | This Week in History | The Reformer's Calendar

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