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A murder investigation typically begins when a
body is found; only then is the killer hunted down. The case against me was
different. State officials examining financial records concluded, on the basis
of the amount of opioid analgesics I prescribed, that I had flooded the
community with dangerous drugs. Convinced I had committed murder, they went
looking for bodies.
Typical of my alleged murder victims was Rebecca Mae Williams, a 37-year-old who
had suffered from incurable low-back pain. After exhausting alternative
treatments, I had successfully controlled her pain with 80 milligrams of
OxyContin twice a day, a dose that had allowed her to enjoy an active life.
The day Becky died, she had taken her usual dose before going furniture shopping
with her boyfriend. As their small truck rounded a curve, the driver's door flew
open, and David, who was driving, fell out. The truck crashed into a tree, and
the impact exploded my patient's heart, fractured her skull, broke her neck, and
eviscerated her. Yet on the basis of an impossibly high level of oxycodone
measured in a blood sample - later found to be contaminated - the county medical
examiner asserted that Becky had died of a drug overdose.
A quarter century after receiving my acceptance into Harvard Medical School, I
found myself sitting in a jail cell in Redding, California. I had just been
arrested and charged with the murder of three patients. With my bail set at $15
million, it didn't look like I would be getting out any time soon.
My arrest broke new ground. Before the criminal prosecution would conclude years
later, I would be accused of murdering nine people, including several I had
never even met. Back in 1999, no pain-treating physician had ever been accused
of murder. Score another first for Harvard.
A Painful Dilemma
I first learned about chronic pain during my third-year rotation through the
orthopedic surgery service at Massachusetts General Hospital. There I spent a
week with one of the surgeons. Nearly all his patients suffered from severe
chronic pain, and I watched him treat them with understanding and compassion.
Then, at the end of each visit, he did something shocking: He prescribed opioid
analgesics. In 1976, that just wasn't done.
From that surgeon I learned that opioid analgesics have a unique power to impart
quality of life to people with chronic pain. I saw that these substances are
safe, effective, and non-addictive when administered properly to manage chronic
pain. And I came to understand that people with chronic pain should be treated
with dignity, respect, trust - and enough pain medication to allow them to lead
The following week I spent with a knee specialist whose approach to the
regulatory quagmire surrounding pain and opioid analgesics was more typical:
simple avoidance. The week after that I spent in the emergency room, where an
orthopedic resident warned me to be on the lookout for the "drug seeker" and
demonstrated elements of the physical exam intended to expose the lies patients
tell about their pain. One trick he taught me was to place my hand
surreptitiously beneath the contralateral heel during the straight-leg-raising
test, allowing me to measure patient effort and, presumably, integrity.
The idea of not trusting patients - and denying pain relief - introduced an
adversarial element into the patient-doctor interaction, which made me uneasy.
When I asked the resident why he refused to prescribe opioid analgesics, he said
bluntly, "If you prescribe those things, you'll lose your license."
His statement was not entirely accurate. Years later I would lose my practice,
my house, my reputation, and even my freedom. My license turned out to be the
only thing I didn't lose, although the regulatory system prevented me from using
it for almost seven years.
After I finished my training, I relied on disciplinary reports to assess the
state regulatory climate. In those reports, published by California's medical
board, I read about the ruined careers of physicians accused of
"overprescribing." Throughout the 1980s I remained convinced that the regulatory
environment was as harsh as the orthopedic resident had described. Not
prescribing controlled substances appeared to be the only pragmatic choice.
During the next decade, I worked in various community clinics and on American
Indian reservations. The entire time I practiced medicine as if the primary
imperative of medical ethics was the survival of the physician. I felt like an
imposter, and I had no idea why.
Pain management, in the meantime, was undergoing a revolution. Researchers had
discovered that cancer patients receiving opioid analgesics didn't often become
addicted, only physically dependent. In 1995, a headline in the Medical Board of
California's Action Report declared that the undertreatment of chronic pain was
more problematic than its overtreatment. Beneath the headline was a set of
guidelines for treating chronic pain with controlled substances. I believed the
reign of terror directed at palliative-care physicians had finally ended.
I was mistaken. Within weeks of incorporating the medical board's guidelines
into my practice, I learned I had become the target of a criminal investigation.
The board had apparently failed to inform law enforcement that times had
Other Shasta County physicians remained skeptical of the medical board's
pronouncement and wanted nothing to do with pain patients taking opioids. I
considered backing out of pain management but ultimately decided to continue
helping people with this valuable treatment. As a result, by the end of 1997 I
had acquired most of the patients in the county who suffered from severe chronic
pain. Although these patients represented only 5 to 10 percent of my total
patient population, I had effectively become a specialist.
Mindful of the "drug seekers" I'd been warned about, I established a screening
procedure so selective that it turned away 60 percent of applicants without my
even seeing them. Those accepted into the pain management program had access to
a multidisciplinary treatment team that included surgeons, physical therapists,
chiropractors, and an acupuncturist. Each patient had to undergo regular
psychological evaluation. And acceptance into the program didn't ensure
continued treatment. Patients who could not follow the program's guidelines were
discharged. By the time I was arrested, some 600 former patients were on the
Throughout this time I believed good medical record documentation would protect
me. That turned out to be another mistake.
New Leases on Life
Although I treated pain more aggressively than most physicians in my community,
I still deliberately underprescribed opioid analgesics. My patients suffered as
a result. In September 1997, though, the California legislature enacted the
California Pain Patients' Bill of Rights, which stated: "A physician treating a
patient who suffers from 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 provisions of the California
Intractable Pain Treatment Act...."
I remember thinking as I read the bill that it was a good law and that someone
should test it. Then, unwittingly, I became that someone.
After the passage of the new law, I decided I would no longer violate my
obligations as a physician by systematically undertreating my patients. When I
adopted the clinical strategy of titration - gradually increasing the dose to
achieve optimal therapeutic effect - it never occurred to me that the attorney
general would consider my decision a manifestation of criminal insanity.
I was too distracted - and elated - by the dramatic therapeutic results of my
decision. Most of my patients were experiencing startling improvements in
functioning. After being titrated to 400 milligrams of OxyContin per day, Penny,
a wheelchair-bound patient disabled by fibromyalgia, abandoned her chair,
tapered her opioid analgesics to zero, and enrolled in truck- driving school.
The remission of Penny's pain was part of a larger trend I observed among my
severely affected patients. During 1998, a predictable time-dosage curve
emerged. Initially, over a period of several months, opioid dosages steadily
increased, as did my patients' functional gains. Then dosages and functioning
plateaued. Finally, the unexpected occurred: Opioid dosages began to drop,
without any urging on my part, while functioning remained optimal.
Many of my patients with chronic pain appeared to be headed for remission, if
not cure. But before this experiment could play itself out, the state attorney
general terminated it by having the police handcuff me at my clinic and throw me
The Law Won
Physically, jail is uncomfortable. Each inmate receives a one-inch-thick
mattress, just slightly softer than the concrete slab it rests upon.
Acoustically, jail is a nightmare, with noises echoing forever until they
finally embed themselves into the psyche. And psychologically, jail is hell. The
fluorescent lighting is never turned off, so day and night blend. Jail - with only
two hours a week spent outdoors in a cage - allows no seasons. Worse yet is the
nagging feeling of dread. I felt trapped, and there was no end in sight. I
realized then I was gaining a glimpse into the psychological suffering that pain
On the third day of my incarceration, I was unexpectedly called out of my cell
to meet with a visitor. Patrick Hallinan, a highly sought-after criminal defense
attorney in the Bay Area, had heard about my arrest from my brother and had
driven three hours from San Francisco to see me. My case was an injustice, he
said, and he was willing to represent me. For the first time, I believed
everything would work out.
My preliminary hearing was the equivalent of a trial. The lead prosecutor was a
career bureaucrat with a reputation for winning elder-abuse cases. His first
witness was a family practitioner from a neighboring community health center who
served as the primary source of the state's information about pain management.
She had already articulated her formulation of the case against me for the local
paper: "The majority of patients were on doses that we had never seen before.
Some of the doses we thought were incompatible with life."
Soon after my attorney began his cross-examination, however, this witness
admitted that she lacked even a minute's worth of training in pain management.
He led her to repeat her public claim that each patient has a certain dosage of
opioid analgesics that will surely kill him.
The trap had been set. Asked to read aloud several lines from the OxyContin
product literature brochure, this witness read a statement asserting what all
competent pain-treating physicians know - pure opioid agonists have no ceiling
The trap was now sprung. Gesturing to the gallery of the courtroom, which was
packed with my patients, my attorney identified the "walking dead." All very
much alive, my patients began howling with laughter. The state's case had just
sustained irreparable damage.
Next, the prosecutor called to the stand the founder of the pain management
center at the University of California, Davis Medical Center. When asked about
the quantities of OxyContin I had prescribed, the physician responded, "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 Fisher ever had in all the records that
I've got." The witness finished his testimony by stating that I appeared to have
practiced medicine in good faith. Later, the bailiff chuckled as he escorted me
to a holding cell. "Sometimes it goes well in court," he said, "but never that
Over the next several months, as the prosecution sent an army of investigators
across the county to try to unearth evidence that would prop up their faltering
case, the hearing stretched out to 21 days of testimony. During that time, my
defense didn't have a single bad day in court. Each witness the prosecution
called dug the hole they were in deeper.
As the prosecution's case fell apart, multiple incidents of police and
prosecutorial misconduct surfaced. A witness was threatened in an attempt to
coerce testimony favorable to the prosecution. A conspiracy to violate Miranda
rights was exposed. A witness recanted, and the prosecutor was caught knowingly
eliciting false testimony from one of his investigators.
During a cross-examination on the final day of testimony, my attorney lured the
government's last witness, a police investigator from the attorney general's
office, into remarking upon the atmosphere in my clinic. The agent wasn't
supposed to have known what went on in my clinic because, until this point, the
prosecuting attorneys had withheld the fact that they had sent agents to my
clinic to scam for drugs.
After the agent's admission, my attorney walked behind me, placed his hands on
my shoulders, and bellowed, "And not one of them got anything, did they?" The
agent just hung his head and muttered, "Not that I know of."
On July 15, 1999, the hearing finally ended. The judge dismissed all five murder
charges, reducing three to man-slaughter. (One of the manslaughter counts was
for a young man who wasn't even my patient, but the judge told me he suspected I
had something to do with the death.) The judge dropped my bail from $15 million
to $50,000 and told me not to practice medicine until the criminal charges were
I'll always remember the day I got out of jail. It had been a rainy winter
morning when I entered; on the day I was released the temperature reached 110
degrees. I felt I had been through a time warp.
At least 50 of my patients were waiting to greet me. After they had finished
congratulating me and I had given a brief interview to the media, I rode off in
my brother's car. As we pulled away, my patients jubilantly waved their canes in
A Matter of Principle
Prosecuting my case had cost taxpayers at least $5 million. Now the state was
eager to cut a deal, have me confess to some minor criminal transgression, and
move on. Yet I never even considered taking a deal. I had done nothing wrong,
and I wasn't going to lie and say I had. In addition, I felt the integrity of
medical practice in general was at stake. What had been done to me was an
exaggerated version of what is still happening to well-intentioned physicians
across the country. I paid for my decision by being kept out of practice for
nearly seven years.
Fortunately, I didn't have any dependents. I moved in with my parents and went
to work on winning my case. My lawyer turned his conference room over to me to
use as a war room. Over the next few years, I became a fixture in his office,
gathering and organizing more than 300,000 pages of materials to bolster my
case. Occasionally he would run me out of his conference room. "Frank, you've
got to get out of here," he'd say. "I have a paying client coming in."
On the morning of January 14, 2003, almost four years after my arrest, my trial
began. The judge opened the proceedings by asking the prosecuting attorneys
whether they were ready. They weren't.
That morning, after four years of attempting to bluff me into a deal, the state
finally admitted it didn't have the evidence necessary to proceed. The judge
dismissed all the remaining charges, and the trial was over before nine o'clock
the first morning.
But my troubles weren't over. The state attorney general robbed me of yet
another year and a half of my professional life by prosecuting me for an alleged
$150 upcoding theft - or billing fraud - from Medi-Cal, California's Medicaid
agency. All the while prosecutors in his office kept assuring the media they
would soon refile the murder case against me. They never did.
A week after the upcoding case went to trial in May 2004, the jurors retired to
deliberate. Within minutes, uproarious laughter could be heard coming from the
jury room. The jurors soon emerged and acquitted me on all counts. One juror
later told a reporter he believed the whole thing had been a witch hunt.
By the time of my acquittal on May 18, 2004, I had faced criminal charges for a
total of six years, to the day. The criminal phase of my ordeal was over, but
the state attorney general had one more gambit: to go after me through the state
medical board. He failed there as well, but not before robbing me of another two
years of practice.
Three wrongful-death malpractice lawsuits had spun off from the original murder
charges, and I now had to contend with them. All three were dismissed before
trial, and the court ordered two of the three plaintiffs to pay part of my legal
expenses. Collecting on these judgments is unlikely, but the symbolic victory
The Deep End
Throughout my ordeal I had kept in touch with many of my patients. When I
visited them in their homes I witnessed how the disease of chronic pain
devastates their lives. I also learned the strategies they adopt for simple
survival. Many physicians believe their patients take pain medications as
prescribed. But I found that patients who are undertreated tend to bunch their
medications into a single dose to achieve the threshold effect that allows them
to function. During the resulting window of opportunity, they accomplish
essential tasks, such as shopping, paying bills, and, if the pain has not yet
taken over again, a little housecleaning or socializing. In contrast, when
patients receive an adequate supply of medication, they can enjoy all activities
all the time, a freedom the rest of us take for granted.
While spending time with patients, I learned that freedom is not the only
advantage that opioid analgesics offer those in severe pain. These medications
also enhance survival. In the end stages of chronic pain disease, massive weight
gain is typical. This gain is attributable to inactivity, as it hurts even to
move, and likely to high levels of stress hormones as well. This weight gain can
be abrupt - and extreme. One of my patients gained more than 100 pounds in less
than a year. People who had known her for decades did not recognize her.
As the disease progresses, metabolic syndrome often develops. Blood pressure
soars and type 2 diabetes emerges. Because chronic pain kills slowly, death is
attributed to these secondary disease processes, rather than to uncontrolled
A more abrupt lethal outcome of chronic pain is suicide. Following my arrest,
one patient became so distraught she drove her car onto a nearby railroad track
and waited for the train.
Another patient, Jeff, was a 32-year-old single father who suffered from chronic
pain following a motorcycle accident. Steel plates held the bones of one leg in
place, and with each step he took the bones ground together. His life became
just barely tolerable with 2,400 milligrams of oxycodone a day, a dosage that
allowed him some mobility while his orthopedic surgeon fought to save the leg.
After I was arrested, no physician in the county would prescribe Jeff opioid
analgesics in quantities sufficient to allow him any quality of life. In
desperation, he allowed his orthopedic surgeon to amputate the damaged leg, but
his pain syndrome only progressed. He decided to solve his dilemma by committing
suicide, leaving a teenage son to fend for himself.
Sharing the Pain
Recently, it has become popular to attribute the pain crisis to a war waged by
law enforcement against physicians. The Controlled Substances Act of 1970
contained language intended to establish a safe harbor within which the
physician could legally participate in the distribution of controlled substances
as "an individual practitioner acting in the usual course of his professional
practice." The authors of this act were mistaken in assuming that distinguishing
between what is medical practice and what isn't would be obvious: When the
police see drugs and money changing hands, they see a crime in progress.
Every attempt to resolve the problem of undertreated pain has been, in essence,
an attempt to draw a bright line between legal medical drug distribution and
criminal misconduct. These attempts are fundamentally misguided because they
focus on physician conduct, while criminal drug distribution on the part of a
physician is primarily a matter of intent. At the end of the day, illegal drug
distribution by physicians is a thought crime.
Each year, many physicians lose their licenses and some receive long prison
sentences. William Hurwitz has drawn a 25-year sentence in federal prison, for
example, while James Graves continues to serve a 63-year sentence in Florida.
Yet most of the victims of this aspect of the war on drugs are patients, not
physicians. Patients' lives are destroyed by the millions, and the costs to
society are enormous. Chronic pain, a leading cause of adult disability in the
United States, costs the economy $100 billion a year in lost productivity. While
opioid analgesics are categorically safe when taken as prescribed, 100,000
arthritis sufferers are hospitalized, and 16,500 bleed to death each year from
gastric ulcers caused by nonsteroidal anti-inflammatory drugs.
Physicians have the power to control chronic pain and for the most part choose
not to exercise it, either as individuals or as a profession. If too many
doctors choose not to control pain, the ethics of the profession as a whole are
compromised, without a single physician having behaved unethically.
The central question that society faces in respect to the pain crisis is whether
opioid prohibition and the attendant war on drugs can be rehabilitated through
incremental symptomatic reform, or if a new regulatory paradigm will be
necessary. Two schools of thought have arisen around this controversy.
One argues that a combination of education and legislation will produce a
kinder, gentler world in which pain patients will one day be spared the ravages
of the war on drugs. The second school of thought views opioid prohibition as a
fundamental flaw in social policy, one that precludes access to pain care.
Attempts to shore up the safe harbor for medical prescribing are regarded as
exercises in futility. The underlying concern is that despite the intent of the
Controlled Substances Act to create a safe harbor for prescribing, the act makes
opioids both legal and illegal, ensuring that criminal prosecutions of
well-intentioned physicians, however rare, will inevitably occur.
This second school of thought understands that physicians are both risk
sensitive and risk averse. If an ironclad guarantee does not accompany the offer
of a safe harbor, the mere possibility of criminal prosecution will chill
prescribing, no matter how much education takes place or what official
assurances are offered.
Many fear that ending opioid prohibition will result in social chaos. This
concern overlooks the fact that opioid analgesics are profoundly dysregulated,
and that chaos already reigns in the pain management realm. The centerpiece of
the current regulatory paradigm is a concept called "the principle of balance."
This principle requires controlled-substance-prescribing physicians to maintain
a balance imagined to exist between the needs of their patients and the
government's perceived obligation to protect willful substance abusers from the
adverse consequences of their own reckless behavior.
This approach to balance has several problems. First, it has recently come to
light that most pharmaceuticals diverted into the illicit market come not
through physicians' offices, but through such sources as pharmacy robberies. One
of my alleged murder victims was a man whose niece had broken into the house of
one of my patients, stolen some OxyContin pills, and given the pills to her
uncle in exchange for a night's lodging. The man died after injecting a mixture
of the pills with an overdose of an antipsychotic medication.
Second is a problem with medical ethics. When physicians are compelled to serve
the interests of the government rather than those of their patients, history
teaches us that the outcome is never good. In fact, it can be so bad that it
seems reasonable to suggest that the health of a society can be measured by the
extent to which it allows the patient-doctor relationship to serve the interests
of the patient exclusively.
Now, seven years after my arrest, the criminal prosecutions and wrongful-death
lawsuits I endured have all been resolved in my favor. My no-admissions
settlement with the state medical board has finally cleared the way for my
return to practice. A former patient offered to provide me with a building in
which to set up my next community health center, but death threats cancelled our
plans. I do not yet know what direction my next run at clinical practice will
take. While I do know I won't be prescribing controlled substances, I will be
working to resolve the flaws in social policy that drive the pain crisis, with
the hope that someday I will once again be able to treat patients with chronic
I now find myself in demand as an expert
witness and analyst in cases against other physicians accused of overprescribing
opioid analgesics. I also donate time as a consultant to the Pain Relief
Network, an advocacy organization for people with chronic pain and physicians
who are persecuted for trying to help them. But most important, I no longer feel
like an imposter within the medical profession. I cured that malady with
opioids, not by taking them, but by prescribing them for my patients.
Frank B. Fisher '78, a consultant with the
Pain Relief Network,
can be reached at
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