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Alexander DeLuca, M.D.
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Ordeal of the Pain Doctors:
California Physician [Frank Fisher] Struggles to Clear His Name, Trial Date Set for December

 
The Week Online with DRCNet,
Issue #258, 2002-10-11. Modified: 2005-09-19. See also: Dr. Frank Fisher's website, "Drug Warriors Arrest Pain Doctor"
 
Related resources: 
Drug War Journalism and Advocacy Library
  ;  War on Doctors Academic Articles, Official Reports, and Legal Documents
 
See also:

The Trials of Dr. Frank Fisher: the Cost of Exoneration - War on Pain Sufferers #7
 
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It has been almost four years since Dr. Frank Fisher's world turned upside down. One day the Northern California physician was a respected healer operating a community health care center for poor patients with severe pain; the next day in was in jail, accused of being a murderous drug dealer. Things have improved since that day in February 1999 when a multitude of armed state and local agents raided the Harvard-trained doctor's clinic in Anderson and a local pharmacy, arresting him and pharmacy owners Steve and Madeline Miller for murder, drug dealing, and prescription drug fraud.

For one thing, the murder charges have evaporated into the thin air from which they were produced in the first place. (For another, Fisher is out on bail (as are the Millers). His bail was reduced from $15 million to $50,000, and then to nothing as the case against him crumbled. And he looks forward to proving himself in court.

But the veteran physician cannot practice his calling. His assets have been frozen. He has been reduced to every grown person's nightmare: living with his parents. "I never expected to spend my 40s doing that," he said with a pained laugh. And he goes to court in December, with his reputation and his freedom on the line. "I'm looking at a million dollars worth of fraud and prescription violations," he told DRCNet. "That's a 20-year sentence."

Fisher seeks vindication in court, he said. "I expect to be exonerated. I'm innocent. I didn't do it," he proclaimed.

What Fisher did do was operate a health care clinic in the Shasta Valley that used the latest opioid pain management techniques for the good of patients, predominantly poor patients covered by Medical, the state medical assistance program. "I was the first doctor in California to apply modern principles of pain management to a disadvantaged population, and when it got expensive, that pushed investigators from the California Attorney General's office over the edge," said Fisher. "They made it look as if I prescribed half the oxycontin in the state of California."

Although the murder charges were so absurd they were dismissed by a judge after Fisher and the Millers had spent five months in jail -- the alleged victims included a woman killed in a traffic accident, a person who stole drugs from a patient and subsequently overdosed, and, most cruelly, a patient who committed suicide two weeks after Fisher's arrest -- state prosecutors remain convinced that Fisher was up to no good. In court, Fisher will have to prove that he was not engaging in fraudulent scrip-writing but in treating pain within accepted medical standards. He fully expects to be able to do so.

His clinic employed multiple practices to avoid the twin banes of pain doctors: junkies and narcs. Those precautions, documented in medical records, included:

  • Rigorous pre-treatment screening to exclude potential abusers of pain medications. Among those screened out were undercover agents sent by the Attorney General's office.
  • Mandatory mental health evaluations of all Chronic Pain patients by a licensed professional.
  • Ejection of patients caught lying, diverting medications or ingesting non-therapeutic doses. As a result the clinic ejected 400 patients for failing the standards of integrity required by Dr. Fisher's practice.
Fisher will also have experts on pain management to back him up in court, he said. "Dr. Robert Brody, chief of pain management at San Francisco General, will testify," said Fisher. "So will Dr. Bill Hurwitz." Hurwitz is the Virginia pain specialist who announced last month he was closing his practice rather than risk seeing his patients suddenly cut off from medication by the DEA [http://www.doctordeluca.com/Library/WOD/HurwitzQuits02.htm].

Prosecutors originally argued that the size of some of the oxycontin doses were clear evidence that Fisher was dealing dope, but neither California law nor expert opinion backed them up. Under a California health statute adopted in 1997, "A physician who uses opiate therapy to relieve severe chronic intractable pain may prescribe a dosage deemed medically necessary to relieve severe chronic intractable pain as long as the prescribing is in conformance with the [1990] California Intractable Pain Treatment Act, Section 2241.5 of the Business and Professions Code."

Similarly, University of California-Davis Pain Control Center founder Dr. David Eisele, told the court about Fisher's prescribing: "The absolute numbers don't bother me a bit. I'll repeat that. The absolute numbers don't bother me a bit. I have cases of my own that I can show on higher doses than any patient that Dr. Fisher ever had in all the records that I've got."

Despite having by all appearances a very weak case, prosecutors continue to press forward. "They have millions of the taxpayers' dollars invested in persecuting me," said Fisher. "They can't just back away now."

If Fisher is confronting the awesome power of the state, he is also finding new allies. Doctors accused of running pill mills have almost universally expressed a sense of being abandoned by their colleagues when charged, but with the federal government on an announced national hunt for pain doctors -- its targets are usually described in DEA press releases as drug dealers -- and physicians being charged and sometimes convicted in growing numbers, the profession is beginning to awaken to the threat.

Two weeks ago, Fisher attended the annual convention of the American Academy for Pain Management (http://www.aapainmanage.org) in Reno, Nevada, where he sat on a panel with fellow accused physicians Dr. Robert Weitzel of Utah (http://www.drcnet.org/wol/255.html#weitzel) and Dr. Joseph Talley of North Carolina. "We spoke about our cases and people were horrified," said Fisher. "As the medical community becomes more aware of the problem, there is growing support."

Last weekend, Fisher was attending the conference on pain management at UC Davis, manning a booth for the National Foundation for the Treatment of Pain (http://www.paincare.org) and spreading the word about the pain care crisis provoked by heavy-handed prosecutors. There is also a move afoot to provide license defense insurance for doctors accused of similar offenses, Fisher said. "When you're charged with medical or criminal violations, malpractice insurance doesn't help. License defense insurance would fill a real gap," he said.

At the root of the problem is prohibitionist ideology, said Fisher. "For the past century, opioids have been viewed as the ultimate evil in our society. The problem is that this ultimate evil is not evil for an enormous group of pain patients. Opioids are not evil, they are morally neutral," Fisher said. "We are in the beginning of a paradigm shift here. The inquisition condemned Galileo for his views on gravity, and he had to recant, but science eventually prevailed. The science around opioid pain management is irrefutable: Opioids are safe when taken as prescribed, and addiction is rare in pain patients. That differs from the prevailing ideology, but ideology must at some point yield to science."

Dr. Fisher may be a man of science, but Frank Fisher is a man, and he's not a happy man. "These people have taken four years of my life, my patients have suffered, some have died," he told DRCNet. "I'm not well-versed in civil law, but somebody has to pay."

[END]
 

 

Dr. DeLuca's Addiction, Pain, and Public Health Website

Alexander DeLuca, M.D., MPH

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Originally posted: 2002-10-11

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