Alexander DeLuca, M.D.
DRCNet has followed Dr. Fisher's case since the summer of 2000, when he, the Millers, and some loyal patients showed up at the Shadow Convention accompanying the Democratic National Convention in Los Angeles seeking help and support (http://stopthedrugwar.org/chronicle/150/fishercase.shtml). What can only be called the persecution of Dr. Fisher was a harbinger of what has now become a wave of prosecutions of pain doctors, which has only intensified as the federal government has made prescription drug abuse the drug menace du jour.
Now, more than five years after his encounter with the war on drugs, Fisher was exonerated two weeks ago of the last remaining criminal charges, a handful of measly misdemeanors charging him with defrauding Medi-Cal of some very small change (http://stopthedrugwar.org/chronicle/338/frank.shtml). The murder charges evaporated into thin air upon closer examination -- one of his supposed victims was a passenger in a fatal traffic accident, another had stolen drugs from the patient to whom Fisher had prescribed them -- and the associated charges of illegally prescribing were similarly thrown out. All that remains now between Fisher and the renewal of his practice is a complaint with the state medical board that basically rehashes the same charges of which he has been cleared.
In part because of his ordeal at the hands of the drug fighters, Fisher has emerged as a strong voice for the right of doctors to treat chronic severe pain and for patients to receive adequate pain relief without interference from law enforcement. DRCNet spoke with Fisher this week.
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?
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.
Chronicle: Despite 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 treated.
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.
Currently, prohibitionist 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 doctor-patient relationship.
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.
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