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Doctor [Heberle] Defends Himself - Says He Properly Prescribed Drugs to Patients

Ed Palattella; Erie Times-News (PA); Last changed: 2006-05-18. Posted: 2006-05-27; Modified: 2006-06-03.
Related resources:  Drug War Journalism and Advocacy Library 
See also:
"The Doctor Wasn't Cruel Enough" - Maia Szalavitz; Reason Online; 2006-06-02
Christine Heberle Comments on the Acquittal of her Husband -
Christine Heberle; PRN listServ; 2006-05-28
WAR ON PAIN SUFFERERS collection #10:  Erie - Klees Imprisoned, Heberle Exonerated, Pain Patients Abandoned

The Trials of Dr. Frank Fisher: the Cost of Exoneration - WAR ON PAIN SUFFERERS collection #7
WAR ON PAIN SUFFERERS special collections - Introduction and Table of Contents
War on Doctors/Pain Crisis blog and RSS feed
Heberle Vindicated! - DeLuca; blog entry; 2007-04-14

An Erie physician accused of overprescribing painkillers testified that his struggles with cocaine addiction helped him better understand his patients.

"It showed me to take time, to listen to people, to know what was going on," Paul Heberle, D.O., told a jury late Wednesday afternoon.

Heberle, 40, testified for about 30 minutes and was to retake the witness stand in Erie County Common Pleas Court today.

In his limited remarks Wednesday, Heberle provided an outline of his defense. He is arguing he prescribed the drugs properly. He told the jury he went out of his way to understand his patients' medical histories, despite record-keeping problems he said were due to circumstances beyond his control.

The Attorney General's Office alleges that Heberle violated state drug laws by overprescribing OxyContin, fentanyl and other drugs to 15 patients between August 2003 and April 2005. Heberle is also accused of 13 counts of Medicaid fraud.

The prosecution has tried to show Heberle prescribed the painkillers without fully evaluating his patients' medical conditions, and without trying to aggressively treat the underlying reasons for their pain.

Heberle sought to portray himself as a conscientious physician who learned from his cocaine addiction, which he said ended in 2001 and for which he said he is still monitored.

He said the addiction particularly helped him understand how a person could deny he or she was dependent on drugs.

Heberle said record-keeping issues prevented him from getting as much information as he would have liked about some patients.

He said new federal medical privacy regulations -- known as HIPAA rules, for Health Insurance Portability and Accountability Act -- stymied some of his requests to get patients'records from their previous physicians. Heberle said the HIPAA difficulties became acute in 2003, when he said he inherited a number of patients from the practice of David Klees, D.O.

Klees was charged in early 2004 with writing illegal narcotics prescriptions and was later convicted of 12 counts and sentenced to 10 to 20 years in state prison.

Heberle did not say how many of Klees' patients sought care at Heberle's office.

"I basically got bombarded with them," Heberle said.

When a patient's complete file was unavailable, Heberle said he tried to piece together the patient's medical history by gathering as many records as he could, by performing physical exams and by talking to the patient.

Expert testimony
Before Heberle, who is not practicing medicine at this time, took the stand, the defense called witnesses to try to show Heberle acted appropriately in prescribing the painkillers. An expert witness for the defense was California physician Frank Fisher, who once was in the same legal predicament as Heberle.

Fisher faced criminal charges that he overprescribed powerful painkillers to his patients. He was exonerated, and his testimony showed he wants Heberle to achieve the same goal.

Fisher is a Harvard-trained medical doctor who specialized in chronic-pain treatment. He said Heberle, who came to specialize in pain medication after training in internal medicine, followed proper procedures in treating his patients.

Fisher often engaged in charged exchanges with the lead prosecutor, Douglas Wright, a senior deputy state attorney general. Fisher said the state Attorney General's Office is victimizing Heberle and hurting the ability of doctors to do their jobs in treating patients for pain.

"In this case, I am appalled at what you are doing to this doctor and his patients," Fisher told Wright during cross-examination. "This is a crime against humanity.

"This is the only criminal activity that is going on in this courtroom, and you are doing it."

Fisher, who testified for about four hours, recounted his legal experiences to the jury in Judge William R. Cunningham's courtroom.

The California Attorney General's Office in 1999 accused Fisher of overprescribing a class of painkillers known as opioids, including OxyContin. Fisher was charged with illegal drug distribution and 15 counts of homicide over patient deaths.

Five years later, after judges dismissed the major charges and a jury acquitted him of the remaining counts, Fisher, no longer under prosecution, resumed a limited medical practice.

Questioned by Heberle's lead lawyer, John Moore, Fisher reviewed the medical files of each of the 15 patients the prosecution believes are victims. Fisher said Heberle's treatment was appropriate in each instance.

"Those were modest doses, entirely consistent with what other members of the medical community would do," Fisher said, referring to the case of one patient.

Referring to another, Fisher said, "This lady is in bad shape. She needs her medication to survive. Dr. Heberle's arrest has been a disaster for her."

The defense used Fisher to try to counter the testimony of the prosecution's expert witness, August Mantia, M.D., of Pittsburgh, who scrutinized Heberle's handling of patients during the first four days of the trial, in which testimony started May 9.

Fisher's testimony illustrated the subjective aspect of Heberle's trial. Where Mantia criticized, Fisher praised. He said Heberle "did the best he could" for each patient.

"Dr. Heberle wasn't just trying to take care of the pain, he was taking care of the whole patient and a whole array of problems," Fisher testified.

He said the criminal case against Heberle - much like the criminal case against him - has put physicians in a bind.

"Can we attend directly to the needs of our patients, or should we be concerned with all this peripheral stuff?" Fisher said.



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

Alexander DeLuca, M.D.

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Originally posted: 2006-05-27

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