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Dr. Rosa Martinez: New Charges?

Submitted by David Borden on

Dr. Rosa Martinez: New Charges?; Alex DeLuca; War on Doctors/Pain Crisis blog of the Pain Relief Network; 2008-10-05. Forum discussion here. Permalink:

See also:
USA v Dr. Martinez Goes to Jury - Martinez Wins
A. DeLuca, War on Docs/Pain Crisis, 2007-12-09
Yakima Doctor Faces New Charges
L.B. Ward, Yakima Herald-Republic, 2008-08-20
PRN Files State Tort Claim vs. WA State - 2008-07-08


I was Dr. Rosa Martinez’ medical expert in her federal criminal trial in December 2007. When that verdict came in I wrote, in a blog item “USA v Dr. Martinez Goes to Jury - Martinez Wins:”

… Not Guilty on three of the five drug charges; the jury hung on the remaining two drug charges regarding one patient. Given the hideously uneven playing field of federal drug law as applied to physicians, this counts as a WIN for pain management in the Eastern District of Washington…

I called it a “win,” even though at the time Dr. Martinez had not been fully acquitted on two of the drug charges on which the jury had hung, and still had several fraud charges 1 hanging over her, because it is very rare for a physician tried in federal court on criminal drug charges to not be convicted.

These are very difficult cases to win. I discuss how and why these cases are unfair and difficult, and refer to Dr. Martinez’ case, in some raw footage from a video interview the Competitive Enterprise Institute 2 did with me early 2008: “Why I Don’t Practice Anymore” (specifically the last part, starting about 6 mins 45 secs into the video).

But it turns out Dr. Martinez was eventually entirely acquitted on the two remaining drug charges when the judge threw them out after the December 2007 trial. Further, it is my understanding that the judge also dismissed the fraud charges 3 that remained after that trial, though on these he invited prosecutor Harrington to charge her anew if the government so chose. It is also my understanding that the federal Attorney has not yet made a final decision as to whether or not to bring those fraud charges again, having lost the meat of the case which were the federal drug crime charges.

U.S. Attorney Harrington is, I am pretty sure, starting to feel a little anxious about salvaging anything at all out of this long and expensive attempt at convincing the Court and the People that honest, hard-working, community physician Dr. Rosa Martinez, who practiced good medicine in good faith, and whose patients improved under her care in the exact cases on which the govt sought to convict her (I testified to the medical record), was actually a drug pusher, or a (somehow criminally) Bad Doctor, or a some sort of criminal mastermind.

Remember, this was supposed to be an easy kill. After all, Harrington was just playing by the drug war prosecutor’s play book (see: War on Doctors Prosecutors’ Cheat Sheet - and the story behind it), and that is almost always a winning strategy.

The recent “Yakima Doctor Faces New Charges” article by L.B. Ward in the Yakima Herald-Republic, 2008-08-20 is, at best, confusing.

These are not, in any reality-based sense, “new” charges.
Briefly, in a state medical board action, initiated prior to the federal criminal trial in December 2007 and continuing to this day, the Medical Quality Assurance Commission (MQAC) 4 did indeed find, in early 2007, that Dr. Martinez practiced “below the standard of care” in her care of chronic pain patients on opioids. And it is true that the MQAC did indeed order Dr. Martinez to change her practice structure and purchase medical education courses, etc, as outlined by Ms. Ward in the Yakima Herald-Republic.

HOWEVER, that article fails to mention that Dr. Martinez appealed that decision, and that appeal is still pending. So if in fact it is true, as Ms. Ward states, that the MQAC is now charging her with not complying with a judgment and order that Dr. Martinez is in fact duly appealing, then that MQAC action would better be characterized “frivolous,” “duplicitous,” “dopey,” or as an attempted “vindictive prosecution.” Of course she didn’t comply with orders consequent to a judgment she has already appealed, which appeal is currently in process. Sheesh!

I know Dr. Martinez (in person and through her medical records) to be a kind, gentle person - a good doc dedicated to an impoverished community. She is an ethical, experienced, highly competent physician who does not shun the indigent, or cases of chronic pain complicated by substance abuse or a history of same. She is not a policeman; she is a doctor who did excellent and medically rational work treating chronic pain when it arose in her, often socially and medically complicated, patients. Which IS the medical standard of care for pain management 5 - which standard Dr. Martinez met or exceeded in all the medical records I reviewed for my testimony in USA v Martinez, December 2007.

Nope, I think that all MQAC wanted out of these “new charges” is exactly what journalist Beth Leah Ward handed them on a silver platter - an article that suggests to the public that Dr. Martinez is in trouble, again, and must be a bad apple, or why would the state keep going after her? And if I am right, that is a very cheap trick, but one not beyond the MQAC, from PRN’s analysis of their actions in recent years.

It is MQAC’s mission, as a state medical licensing board, to ensure that the citizens of Washington get standard of care medical treatment. Instead they have apparently chosen to misuse their citizen-granted powers to pursue a peculiar opiophobic animus, in concert with other state of Washington agencies, like the Agency Medical Directors Group (AMDG) of Opioid Dosing Guideline for Chronic Non-Cancer Pain infamy. Yet another reason, amongst many, the Pain Relief Network is suing the state of Washington health agencies. (See: PRN Files State Tort Claim vs. WA State for an overview of this class-action lawsuit which has been filed and is currently in progress.)

I expect (and hope, and pray) that the mini reign of terror against pain patients and their doctors in the state of Washington, by agencies of that state against their most vulnerable and powerless citizens, will soon be brought to an end.


  1. In War on Doctors cases (see: War on Pain Sufferers Special Collections) there is always the phenomenon of what might be called Hypercharging. For every prescription alleged by the govt to have been Outside the Bounds of Medical Practice or otherwise illegal, there is a corresponding Fraud charge if Medicaid or Medicare was billed in the course of that patient encounter. This is how federal juries end up having to cope with literally dozens of felony charges in these trials. In Dr. Martinez’ case, some of the fraud charges also relate to CPT-upcoding, regarding which see also the first cartoon on this Gallows Art: Years of Pain page. ?

  2. The Competitive Enterprise Institute (CEI) produced a short video from this same interview, entitled, “Politics of Pain: Dr. Alex DeLuca.” This was the second of a series, following “Politics of Pain: James Fernandez” about a Gulf War vet with combat injuries who is unable to get standard of care medical treatment of chronic pain, from either the Veterans Administration or from community physicians. See: “Politics of Pain” Campaign to Defend Patient’s Rights. The (only very slightly edited) raw footage of that interview is available in six parts on the War on Doctors/Pain Crisis youTube channel, in the Videos section. ?

  3. See Footnote #1. ?

  4. The very same MQAC that are part of the Washington state government health apparatus that the Pain Relief Network is suing in a class-action lawsuit which centers on, but is not restricted to, the Opioid Prescribing Guidelines promulgated in 2007 by the Agency Medical Directors Group. This PRN class-action lawsuit is not directly related to Dr. Rosa Martinez’ case, though it involves many of the same underlying issues. See Pain Relief Network Tort Claim vs Washington State and the links on that webpage. ?

  5. What I am calling the Medical Standard of Care for pain management is equivalent to what is known in case law as the Reasonable Physician Standard of Care - it is what the medical textbooks say about how physicians should approach and treat pain. Standard of Care is a very important concept. It is particularly important to distinguish it from what I could call Community Norms - what medical actions most reputable physicians in a given community would take, presented with a patient in chronic pain. If you are interested in delving deeper in Standard of Care definitions, historical meaning, and current political/legal/ethical import, then consider the following documents and resources: An Ethical Analysis of the Barriers to Effective Pain Management; The ‘Bounds of Medical Practice’ and the ‘Standard of Care’ - DeLuca; TierneyLab Comment; 2007; CEI interviews of DeLuca, War on Doctors/Pain Crisis youTube channel, Videos section; and finally, seriously, PRN’s State Tort Claim vs. WA State really just says it all. Read it, take your time with it, even the footnotes… I really think you will find it enlightening. -smile- ?


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