|Drug War Chronicle:
You were labeled a murdering drug dealer. You faced life in prison.
You've undergone five years of legal battles to clear your name.
Now you have been entirely acquitted of the last criminal charges against
you. How does it feel?
Dr. Frank Fisher: I
feel relieved. I've been under investigation or indictment since
the middle of 1996, and finally nobody thinks I'm a criminal anymore.
That's a relief.
Chronicle: You have
been exonerated of all criminal charges, so we have some idea of how just
was the decision to prosecute you. But you are saying it goes beyond
that. Are you alleging prosecutorial misconduct?
Fisher: There are numerous
examples. During the initial investigation of my case, numerous undercover
agents were sent into my clinic to try to obtain drugs illegally.
None of them ever got anything, but the prosecutors never disclosed this
enormously exculpatory information to my defense team. We only found
out about it on the last day of my preliminary hearing, when my attorney,
Terence Hallinan, uncovered it during the cross-examination of one of the
agents. We don't think this was withheld by accident.
The prosecutors also got
caught red-handed putting on false testimony during the preliminary hearing.
They were eliciting hearsay testimony from an agent who had spoken with
an informant. The problem was that the informant had already recanted
his statement, and the prosecutors knew it. But they still put it
in as sworn testimony. The lead investigator later testified that
they had knowingly done this. These were not local prosecutors, but
attorneys on the staff of California Attorney General Bill Lockyer.
We had another agent who
testified that she had conspired with other agents to deliberately violate
the Millers' Miranda rights. She testified that she let the Millers
believe they were not under arrest so they would feel more comfortable
and talk to police. There was also testimony from the preliminary
hearing that agents from the attorney general's office threatened the husband
of an informant. They not only offered her assistance in a criminal
case, but said if she didn't help, her case could go badly. That
sounds like a threat to me.
And then there is the fact
that they even bothered to try me on the Medical fraud counts, which allegedly
amounted to about $150. They don't generally bring those cases for
less than $10,000. It was personal. So yes, I think there was
a pattern of prosecutorial abuse.
your vindication in the criminal courts, you're not completely out of the
woods. You still face a medical board hearing. What is going
on with that?
Fisher: We are sorting
that out. The medical board complaint echoes the criminal charges
of which I have been acquitted and had been held in abeyance pending the
conclusion of the criminal cases. The medical board accusations are
of negligence and incompetence, based on my treatment of chronic intractable
pain. This proceeding raises in my mind that question of how the
California's Intractable Pain Act of 1990 might come into play. With
that law, the state intended that the medical board not trouble doctors
over the treatment of intractable pain, but the law seems to be toothless.
Still, I am confident that I will prevail at the medical board just as
I have in court. And my attorney Hallinan says it's time to get busy
on it. He wants to get me back to work.
Chronicle: You ran
a large clinic serving a predominantly poor and rural clientele.
What happened to your patients after your practice was shut down?
Fisher: The impact
on the patients has been devastating, it's been an unmitigated disaster.
Their health has deteriorated, they've been unable to get medical care,
some appear to have aged 20 years in five years, others haven't even survived.
Some patients have gained enormous amounts of weight, others have their
blood pressure out of control. I suspect there has been at least
one suicide. Patients are having to travel great distances to get
their care; they go to Eugene or Fresno or San Francisco. Of the
patients I still talk to, I don't think a single one is being adequately
Chronicle: The majority
of your patients were Medi-Cal patients, poor people. Is there a
class issue involved in the availability of pain treatment?
Fisher: The availability
of pain management for poor people is even worse than for the rest of us.
And it's not good for the rest of us. Everyone who develops chronic
pain is likely to be killed by it because of medical neglect. It's
a malignancy in the sense that if it is not controlled, it will spread
and progress. My patients were effectively tossed out on the street
to fend for themselves. The local medical clinic saw them as drug
addicts who needed to be detoxed.
Chronicle: How did
other doctors react?
Fisher: There were
some doctors who stood up for me, but there was really no public venue
to do so. Others turned on me like mad dogs. One compared me
to Dr. Kevorkian. Local doctors were in a panic after I was arrested.
As a result, it became very difficult to obtain adequate pain treatment
in Shasta County.
And it is not just Shasta
County. I've noticed over the last several years that effective pain
management for people with severe chronic pain is getting harder and harder
to obtain. The problem is that the doctors are too afraid to prescribe
enough medicine to control the disease. Doctors have become incredibly
jumpy and are throwing patients out of their practices for any kind of
perceived transgression, such as running out of medication early or missing
an appointment. These are not issues around which the medical profession
typically discharges patients, but in pain management the terrain is all
disrupted by prohibition.
laws insert the principle of balance within the doctor-patient relationship.
That principle requires the doctor to balance the needs of patients with
the potential harm to society at large by his prescribing opioid pain relievers.
But that doesn't work for patient care; it's a social policy mistake.
It abrogates the doctor-patient relationship, which is to put the interests
of patients first rather than balance them against those of a larger group.
Balance is not necessarily a bad thing, but it has to occur outside the
Chronicle: What has
your experience led you to conclude about current drug policies?
Fisher: I had misgivings
about the drug war for a number of years; it didn't appear to be good social
policy. But I had no idea of the extent to which it would ultimately
affect my life and my patients, that I would become a casualty of the war
on drugs and my patients would be collateral damage. I think the
war on drugs has been an unmitigated disaster in every sense of the word.
I suspect that society will
have to choose between pain management and the war on drugs. They
cannot coexist in balance. That's because the institution of prohibition
and the resulting drug war create a social malignancy where it is unacceptably
risky for doctors to prescribe opioids in treatment of chronic pain.
What prohibition has done is put law enforcement in the position of judging
which doctors are prescribing legally and which aren't, but law enforcement
is not competent to make those judgments. They need an in-depth understanding
of the standards of practice for medicine, and they just don't and can't
have it. Even within the field there are disputes and controversies
over what is appropriate.
Law enforcement has addressed
this problem by formulating standards for the practice of pain management,
what they call "red flags." Is the doctor prescribing a large volume
of opioids in his practice? What is too large? It is whatever
law enforcement thinks it is. Another red flag is if patients are
coming from long distances. Law enforcement is noting the remarkable
fact that patients will travel considerable distances to get relief from
pain. The bottom line is that these red flags rather accurately describe
the characteristics of practices where pain management is being effectively
practiced. You can see why doctors who understand this would think
they were fools to treat chronic pain with opioids. I'm not sure
how you resolve this in the context of the ongoing drug war. Prohibition
is totally incompatible with the practice of effective pain management.
Chronicle: How has
this affected you personally?
Fisher: My practice
was shut down on February 18, 1999, the day of my arrest. I can't
practice medicine. Since then, I've survived by living with my parents,
and I've spent most of my time working with my attorneys preparing and
defending my cases. I graduated from Harvard with a medical degree;
this was not what I anticipated, spending my forties living in my parents'
house as a defendant in a criminal case.
Chronicle: You have
had to devote the last five years to defending yourself. Now your
ordeal is almost over. What's next?
Fisher: It's essential
for me to go back to work, back to the practice of medicine. What
I really enjoy is running a community health center, taking care of a broad
array of disadvantaged patients, including a high percentage of out-patient
pediatrics. Before, I had a rural clinic designation, a cost-based
program that allowed me to treat Medi-Cal patients, but I got a letter
saying I had voluntarily withdrawn from the program. I didn't do
that. I was sitting in jail. I wasn't sitting in jail voluntarily.
But I'm not leaving this
issue behind, either. Medically, socially, and politically the treatment
of pain and its interaction with prohibition and the drug war is one of
the most important issues with which our society must deal. The economic
cost of under-treated pain is in the range of $100 billion a year, and
the unnecessary suffering of patients and their families isn't measurable.
In my own case, around 30 patients whom I had been treating and who had
been able to work were forced to go on disability. Multiply that
across the country and you start to see what the unavailability of pain
management costs us.
And the situation is getting
worse. Patients are having to travel further to find someone who
will treat them, doctors are tossing them out, and I don't see the prosecutions
of pain doctors slowing down. It doesn't take very many of those
to keep the medical community aware of the risk of prescribing opioids.
The vast majority of doctors don't treat pain with opioids, and there is
nothing out there to suggest that it is now safe to do so. There
is hardly a week that goes by where we don't see a doctor burned at the
stake. The medical profession has underestimated the risks of allowing
law enforcement to intrude in the doctor-patient relationship; now they
are becoming acutely aware of those risks.