“A Virginia doctor who prescribed more than 500,000 opioid doses in less than two years had his conviction and 40-year prison sentence thrown out by a federal appeals court on Friday…”, reads the headline of an NPR reporter. This is the case of Dr. Joel Smithers, and the headline might as well read, “Pain Physician Treated Pain with Pain Medications!”. I wrote a previous article about how the DEA is misleading news outlets that seem completely uninterested in facts these days, and I would like to bring your attention to this problem.
First, how did Dr. Smithers get convicted and sentenced to forty years? Do you understand what carpet bombing is? Carpet bombing is where you bomb an entire area hoping to hit something important. In this case, they brought 861 federal drug charges against the doctor, with only one count of possessing with the intent to distribute a controlled substance. The rest are all related to prescribing a controlled medication “outside the usual practice of medicine” and for a “legitimate medical purpose.” What does that mean? No one knows. The US Supreme Court admitted they didn’t know and then demonstrated that lack of knowledge by asking what the “opiate speed limit” was during the Ruan case. Asking essentially, what’s the legal limit a doctor can prescribe?
The answer is, as given by Dr. Xiulu Ruan’s attorney, there is no legal limit. It’s like having a nice highway with no speed limit signs, with drivers told to maintain a safe speed. What’s a safe speed? We’ll let you know if you exceed it. Then, allowing every prosecutor to order the arrest of anyone driving down the road under the claim that their speed was unsafe. Expert witnesses would be purchased to tell the jury that 50 was much too fast in the early morning hours when people are sleepy, and 40 is too fast at night for drivers because they haven’t had enough carrots (Walmart receipts entered into evidence), while others are allowed to go past at 90, depending on the prosecutor’s “discretion.” So, how much medication did Dr. Smithers prescribe?
500.000 “opioid doses,” according to the article. Let’s assume here that they mean morphine dose equivalents, which, as anyone who has read my article knows, is not equivalent to a dose of morphine. As a matter of fact, ten milligrams of morphine IV would be a common starting dose for moderate to severe pain; GoodRX only lists 15 and 30mg oral tablets, so let’s look at 15mg doses. That would be 33,333 pills. Over a period of two years, let’s assume five days a week with two weeks off, giving us 250 office days per year, so we are dividing that by 500, giving us 66.7 pills per workday. We’ll go with 69, not to make Elon Musk happy but because it is easily divisible by 3 for TID dosing. That gives us an average of 23 patients per day. In an eight-hour day with thirty minutes for lunch, that would be over 15 minutes per patient. 19.6 minutes, in fact. Granting that most doctors work more than eight-hour days, and specialists often see people for follow-up appointments in less than ten minutes, this does not seem excessive.
Who is Dr. Smithers? Dr. Joel Smithers is an osteopathic physician practicing pain and neuromuscular medicine. He was registered under the 204D00000X as a Neuromusculoskeletal Medicine and OMM Physician. OMM stands for Osteopathic Manipulative Medicine. For my fellow MDs, that’s when the DO school teaches you some chiropractic techniques. He was licensed in both Virginia and West Virginia and graduated from the Lincoln Memorial University DeBusk College of Osteopathic Medicine in 2012. According to scope of practice documents, he had treated addiction as well as pain.
The article goes on to say that “Overprescription of painkillers is one of the main causes of the nation’s opioid crisis. Nearly 645,000 people died in the United States from overdoses involving opioids from 1999 to 2021…” That is a misleading statement. Opioids smuggled into the country through border checkpoints while the federal government was failing at its responsibilities are the cause of about 75% of those deaths, with fentanyl causing the numbers to skyrocket. You can read a great article on this here.
The original article reports that Dr. Smither’s office was raided in 2017 because “Smithers did not accept insurance and took in over $700,000 in cash and credit card payments prior to a search warrant being executed at his office…” Ok. So, like half of psychiatrists and many other doctors, he chose not to take insurance. Since when did that become a crime? And $700,000 over what period of time? One year? Overhead averages around 60% of most clinic’s gross income, according to 99MGT. The remaining $280,000 is not an unreasonable salary for someone who spent about 23 years in school, 11 of those as an adult while everyone else was getting paid.
The article goes on to say that “Some traveled ‘hundreds of miles’ to visit Smithers to get their “drugs,” and, “… a few patients came from Tennessee because Tennessee had shut down some clinics as well.” Here, fellow physicians are important points. Every pain or addiction clinic shutdown causes dozens of primary care doctors to stop treating pain and addiction, requiring the medical refugees of the DEA war on physicians to travel greater distances. Setting up any doctor who agrees to care for those patients for prosecution. And that brings us back to courts allowing prosecutors to call any doctor a “pill mill.” I have an article on that, too.
Testimony by Dr. Smither’s supporters was heard also, including that he “…was proud of being a doctor and frequently spoke of his desire to help others.” But that was not able to compete with patients who were probably caught selling their medications and were trying to throw their doctor under the bus to get a lighter sentence. One of them said that he was addicted to oxycodone and hydrocodone and that, “…there wasn’t no doctors in my area like that to see.” What was meant by that, I have no idea. The original article on his conviction ends with, “According to the Centers for Disease Control and Prevention, more than 700,000 people died in the United States from drug overdoses between 1999 and 2017, including 70,000 in 2017 alone. Of those 2017 deaths, the CDC said nearly 68% were linked to a prescription or illicit opioid.” Note the subtle misdirection. “…linked to a prescription OR illicit opioid. “ Tarring the doctor with the stigma of the opioid crisis.
On September 12, 2017, a grand jury indicted Joel Smithers on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). J.A. 101. Over the course of the next year, the government filed two superseding indictments. The first added 715 counts: one count of maintaining a place for the purpose of unlawful distribution, in violation of 21 U.S.C. § 856, and 714 counts of unlawful dispensing and distributing of a controlled substance. J.A. 102–03. The second superseding indictment added 146 counts of unlawful dispensing and distributing. J.A. 130–31. The latter counts were charged under 21 U.S.C. § 841(a)(1), which (in addition to criminalizing possession with intent to dispense or distribute) provides that, “[e]xcept as authorized . . . , it [is] unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance.” The statute does not define “authorized.” Instead, Drug Enforcement Agency regulations define it: a prescription is only authorized when “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. § 1306.04 ”
Read that one more time. The statute does not define “authorized.” Instead, Drug Enforcement Agency regulations define it.
Dr. Smithers was convicted on all counts and sentenced to the same maximum as would someone living in the state of Virginia who, in a fit of rage, lost their temper and beat someone to death with a hammer, second-degree murder. For which the maximum sentence would have been forty years. Now that conviction has been overturned, with the appellate court stating, “Joel Smithers, until this prosecution a doctor of osteopathy, was convicted on 861 counts, all related to his opioid-prescription practices. He was sentenced to a total of 480 months in prison. After his conviction, the Supreme Court, in Ruan v. United States, 597 U.S. 450 (2022), clarified the mens rea required to convict someone of unauthorized dispensing or distributing of a controlled substance. Because Ruan makes clear that Smithers’ jury instructions misstated the law, and because the misstatements were not harmless error, we vacate the convictions and remand to the district court for a new trial.”
