But in their panic to do something about the opioid crisis, the DEA has started targeting physicians in the United States who treat the “wrong” patients. Those deemed unworthy of effective medical care by some government functionary or algorithm. The DEA doesn’t tell you that you can’t treat these patients; they just use it against you during indictment and trial. Paraphrasing from one recent trial, “We aren’t saying you can’t treat someone with a criminal record, but you put them at high risk of diversion…” When, in fact, no diversion at all was proven or even alleged. Physicians cannot safely treat patients according to their medical needs, and this must change.
The best parallel would be attorneys and the clergy. Lawyers are expected to provide a dedicated defense to every accused, even those accused of terrible crimes or who are personally so unsympathetic that almost any jury would convict them on personality alone. Attorneys are not prosecuted for helping these people despite the fact that they will often know beyond a shadow of a doubt that their client is guilty. In the case of murderers, this means defending the client even if that client’s release threatens public safety. A lawyer caught tanking a defense because in their mind it was for “the greater good” would be disbarred, and rightfully so. The courts have long recognized that no one, sometimes not even the suspects themselves, knows whether or not they are truly guilty of a crime. The prosecutor might believe with all their being, and the evidence might be so overwhelming as to leave no reasonable doubt, yet everyone might still be wrong. If you don’t believe me, I will refer you to the case of John Tessier, who looked so guilty his own sister turned on him, and the case of “Donald” as related by the renowned neurologist Dr. Oliver Sacks.
That brings us to the clergy. Spiritual advisors, secular or sectarian, have a unique place in our society. It is assumed that people with problems, which is all of us at one time or another, need someone to talk to. If for no other reason than to hear our thoughts voiced and listen to how they sound. Quite often, the simple gift of active listening is enough to ease someone’s burden and help them make better choices. It is assumed that if you don’t tell your advisor the truth, at least as you understand it, they cannot be as effective at helping you. For this reason, the clergy are protected from certain laws, as are psychologists, but what about medical doctors?
What if a patient tells you that they are using methamphetamine after a positive drug screen? Do you have the right to continue treatment? That’s a tricky question. When something is a right, you can safely engage in that activity, even if the authorities don’t like it, without fear of prosecution. Or at least with the understanding that if you are prosecuted, the charges will be thrown out, and you will have civil recourse to sue. This is like freedom of speech. The courts have ruled that you can film the police when they are in public, even if they don’t like it, as long as you stand a “reasonable distance,” later clarified as about eight feet away. You can even give police the bird as protected speech anywhere in this nation. But we all know that having a right on paper and having that right in fact are very different matters. In practice, law enforcement and even the courts will ignore rights for what they perceive to be, “the greater good.” Listen to George Takei sometime as he relates how his family was ripped from their home and sent to an internment camp in Rohr, Arkansas.
But surely doctors, valued members of society who have dedicated decades of their lives to medical study and the service of others, will be given deference right? Sadly, no. If a patient admits to a methamphetamine habit but agrees to quit, the doctor can continue opiate treatment according to the Department of Health and Human Services, the only division of the federal government granted the right to voice a medical opinion according to the Supreme Court. You can find the reference here. But unlike constitutional rights and the police’ qualified immunity, the DEA will still prosecute you for it. How is this possible? Because there is no one powerful enough to make federal law enforcement follow the law.
In 1926, in the case of Lambert v. Yellowley, it was found that “direct control of medical practice in the States is beyond the power of the Federal Government.” The Legal Information Institute, in analyzing this case, summarizes a key tenet of this case: Congress, therefore, cannot directly restrict the professional judgment of the physician or interfere with its free exercise in the treatment of disease. Whatever power exists in that respect belongs to the states exclusively. This was followed by a Medicare statute, 42 USC 1395, that expressly ordered the federal government not to interfere with the practice of medicine, stating: “Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.”
This rule was affirmed by the US Supreme Court in Gonzales v. Oregon, when the US Supreme Court forbade the US Attorney General from enforcing the Controlled Substances Act against physicians who were prescribing medications in accordance with state law. In this case, the state of Oregon had passed legislation allowing physicians, in very narrow circumstances, to prescribe a medication for the express purpose of ending someone’s suffering by ending their lives. As of that lawsuit, 935 people had exercised their right under Oregon law, to end their suffering under their own terms, and the physicians had been protected from prosecution. The AG threatened to prosecute the doctors, and the physicians sued, eventually ending up in front of the Supreme Court and winning.
Finally, we come to Xiulu Ruan v. United States. I have written about Dr. Ruan before, but briefly, two physicians had been prosecuted for being “outside the usual practice of medicine” and prescribing controlled substances “without a legitimate medical purpose.” The court basically instructed the jury that the doctors’ subjective belief that they were acting in good faith didn’t matter if the government was able to persuade them that the doctor’s practice deviated from the “norm.” What is this norm? I’ve written on this subject also. It simply does not exist. After their conviction and on appeal, Dr Ruan and his colleague ended up in front of the US Supreme Court. Or at least their attorneys did; the doctors were languishing in some grey little concrete cell somewhere.
The Supreme Court was told that the usual practice of medicine and legitimate medical purpose was not defined in the law and had to be ascertained essentially from whole cloth during each physician’s trial. That the standard of care was not to be found in books or databases but in the opinions of their paid professional medical witnesses alone. (US v. Dr Bauer) That begs the question of where the good doctors could know what the standard was, but this was the point. There is no objective standard according to the government. And the doctor’s absolute good faith efforts meant nothing. This did not fly with the Supreme Justices, who immediately saw the flaw in the government’s argument, stating that the law was ““ambiguous,” written in “generalit[ies], susceptible to more precise definition and open to varying constructions.”
Without mens rea, a “vicious mind”, and clear knowledge of wrongdoing, how can a physician be declared criminal? It has long been a precept of American law that a serious crime requires proof the person knew what they were doing was wrong and did it anyway. That’s the entire crux of the insanity defense. But because the practice of medicine is so arcane, and because of the government’s essentially unlimited resources, a jury could be manipulated into believing almost anything. The Court ruled that the doctor should not have to prove that their mental state was that of a “hypothetical ‘reasonable’ doctor.” Finding that “…for purposes of a criminal conviction under §841, this requires proving that a defendant knew or intended that his or her conduct was unauthorized.”
So doctors should be safe to practice medicine, right? But they are not. There have been only a few times in US history where the executive branch has refused to follow the judicial branch’s interpretation of the law. The first of these was in 1832, with President Andrew Jackson, in the case of Worcester v. Georgia. The Cherokee Nation had adapted better than most Native American tribes to European-ish occupation and had developed a written language, newspapers, and attorneys. When the state of Georgia tried to control lands guaranteed to the Cherokee by treaty, the US Supreme Court found that the states did not have the right to impose regulations on Native American land. But President Jackson declined to enforce this ruling, saying of Chief Justice Marshall, “Now let him enforce it.” and refused to protect the rights elucidated by the Supreme Court, allowing the states to control and eventually seize land set aside for the Native Americans, eventually leading to the Trail of Tears.
The first Trail of Tears in 1838 had a 27% mortality rate, resulting in the deaths of 4,000 Native Peoples on that first death march. The states were so pleased with that result that they did it repeatedly over the next decade and a half. Eventually killing more than fifteen thousand and displacing over one hundred thousand. Today, there is a new Trail of Tears being created, by the DEAs refusal to honor the ruling of the US Supreme Court in Ruan. Doctors are being prosecuted for the non-crimes of prescribing “dangerous medications in dangerous combinations,” which is the very definition of what distinguishes a physician from every other profession… to patients who “travel long distances for treatment.” Of the twelve listed “pill mill” descriptors pried from the government’s records. None are crimes. In many cases, the government does not try to prove or even allege that the doctor had criminal intent, arguing only that he was “willfully blind” to the nebulous standard espoused by their medical expert witness, who is paid to advance their opinion and convince the jury.
For every physician wrongfully prosecuted, and from our studies, that is at least one-third, we’ll have exact numbers when we finish our research; there are thousands of patients thrown out onto the street with nowhere to go. The DEA portends to have numbers to call to help these patients, but these are worse than useless. No physician is going to treat a patient with controlled medications after their previous doctor was sent to prison, even if the patient in question was not in the indictment. And that’s exactly how the DEA wants it to be. They will fulfill their mandate to reduce the diversion of opiate medications by simply dictating the practice of medicine by example. Stating clearly through their actions… “We aren’t saying that you can’t prescribe opiates; we are just saying that we will spend millions of dollars trying to lock you up if you do.” This has been extremely effective, with even cancer patients unable to find treatment today. I don’t know how many will die in this new trail of tears, but I bet it will far exceed what was seen before. Because who can stop them? A united Supreme Court said doctors have the right to treat their patients according to their good faith judgement. Now, let’s see them enforce it.
The opinions expressed in this article are meant to editorialize a highly polarizing issue that continues to be adjudicated in federal and state courts. Nothing in this article is meant to construe medical care, health policy, or legal jurisprudence.
Bless you 🙏
After reading the article regarding Drs prescribing opioids which puts them in danger of losing their license to practice or going to jail for prescribing opioids, I wonder where this will all end. I am a pain patient who follows all the rules in accordance with the guidelines and laws. However every two months when I see my Dr for my refills he spends the first 10 minutes of my visit explaining that my medication will be stopped sometime in the future due to the government interfering with my Drs ability to prescribe the medication that gives me a life. I cannot even imagine what kind of life I will have if this comes to fruition!! I understand that there is a crisis in America with people who abuse opioids but in the 10 years that I’ve been on opioids I’ve never caused any problems with my Dr or pharmacy. I take my medication as prescribed. I would like to see that there is someone in the government that sees the difference between abusing and not abusing medication. It makes no sense that every person is being treated like an addict, it’s just not so!! Change is needed for all of us that suffer chronic conditions and take the medication responsibly, why I ask should I be treated like I’ve done something wrong?? I really hope that the coming days or months will bring forth some semblance of normalcy and that the government will take action against hurting the American people who suffer daily from pain and not take their medication away from them. I have actually been told that I will be put on methadone when my doctor stops prescribing my pain medication!! Methadone?? I have read everything regarding this medication and it says over and over that it can kill you. I’m truly afraid of what’s to become of me, I have tried everything and the only thing that works is opioids. To anyone who is listening please join the fight against the injustice being committed against the pain patients of America !! Sincerely Michelle R
As a chronic pain patient I live in fear every month that my doctor will be forced to quit leaving me bed bound again. I’ve known countless people who’ve committed suicide due to my very fear. The CDC hired a PR team after their extremely flawed 2016 guidelines and boy oh boy did they get the best PR team ever! Every night, every news outlet had opioid crisis news. Not once did they mention illicit fentanyl as the source of the overdose epidemic. They bought the public and they made sure to have them buy in to their agenda. I wonder what’s really going on because the numbers don’t add up. It’s almost as though they needed a reason to justify manufacturing shortages. Just my opinion. Because these guidelines were written behind closed doors and without hearings. It has never made sense. Thank you for covering the other side.
I am so frustrated with healthcare today.. I was reading other comments-and I too am a chronic pain patient in good standing for 33 years! I agree with Michelle Rambert. In the days when I worked as a Nurse in the hospital setting, my number one priority was to treat my post-op patients with pain medicine. This was so that the patient could get out of bed, move, and be comfortable. These many patients recovered from surgery as well as getting adequate pain relief! These patients were then discharged to go home.
Now, fast forward to 2024. I had to retire early due to my own disability. I was born with NO hip socket. By the time I turned 8- the damage was done. I limp, and now walk with a cane. I have had 5 total hip surgeries/revisions after my childhood surgery where they performed an osteotomy, and removed half of my pelvis on the left side. Opioids work for ALL types of pain-like burns, broken bones, trauma,, cancer, etc. What is the answer?
In my mind-why can’t every MD connect with their colleagues in the same State and stand up to the DEA in volumes-and make some noise!? It would be great for the AMA to come out and do a National TV ad. The way that I see this-MD’s are going to have to really demand change!
They need to demand change-because they are the ones who PRESCRIBE these life-saving pain meds. There should be enough documentation by now-where we have data stating that to be force tapered off of the drugs that used to work for the pain patient has done HARM. Some of these harms were: tachycardia, increased blood pressure, and for some-even worse! There have been patients who have died from strokes and heart attacks. Why can’t this info be presented?
Also, I am sure there has been a large population that has committed suicide. Isn’t this enough to stop the DEA from going after the patient? I don’t have the answers-only suggestions. I have tried to advocate as a pain patient myself. It has been 8 horrific years since this nonsense by the CDC started. We must get rid of the 50/90 MME daily limit! It is ruining my life as well as others. I am in a strict PM facility, and I can honestly say that I pay to have my pain UNDER treated! .
We need our HUMAN RIIGHTS restored. The PDMP is an invasive tool used by the Government.
I am in a horrific pain flare where I have severe sciatica, and my pain clinic will not restore my daily Diazepam which was 1tablet twice daily for muscle spasms. How can our healthcare system be so cruel? Thank you Dr. Joseph Parker for all that you are trying to do for change.
Maybe, ALL of us can connect via zoom meetings to get more feedback. I’ m in, are you?
Sincerely, Kathleen Clark, RN ( retired).
I am a Chronic Pain Patient of 18 years. In 2019 my Pain Management Physician of 11 years was forced by the Oregon State Medical Board to begin tapering all patients to CDC Guidelines of 90 mg MME. I left, found a wonderful new Pain Management Physician who stopped the forced taper giving some of my medication back that I had lost. Fast forward to 2021 and my new Pain Physician was hit with an investigation by the Oregon State Medical Board and put under a “Stipulated Order” to began a review of ALL patients taking opioids and force taper to CDC Guidelines 90 mg MME along with tapering Benzos etc…I was once again immediately placed on a forced taper and my mental/physical health has been in decline ever since. My Physician stated that he has the DEA also breathing down his neck along with the Oregon Medical Board and due to this insanity has decided to just retire now. This is no longer the practice of medicine. It’s Dictatorship from the Health Authority, State Medical Boards, DEA, CDC, People are Suffering and being forced off Effective medications that worked and they were stable on for none other than the Milligram of the Dose they required. When does this all End? People are Dying, Going to Streets for help, Overdoses, Suicides, and Untreated Pain is Skyrocketing to never before seen numbers. Our System is Broken. Physicians should NEVER risk DEA raids and Jail, Medical Board investigations and stipulated orders to force patients off medications that they need. All of this for treating patients at therapeutic doses of FDA approved medications? Every patient is Different in how they metabolize Opioids and what dose works for them. This is not a one size fits all? This is madness and hysteria from Government agencies in which most making these policies do not even have medical degrees or licenses to practice medicine. As they continue to focus on forcing patients off opioid medications and forcing them to extremely low ineffective doses, along with putting treating physicians in jail. The real problem of illicit blackmarket fentanyl continues flooding in and killing everyone. More Die and they tighten restrictions yet again on safe pharmaceutical grade opioids. Where is the Disconnect here? How many need to Suffer, Die before any change in current failed policy will come?
It happen on Jan.30th. My doctor who has treated me for 20 plus years for the worse arthritis, fibromyalgia, RSDS, Complex Regional Pain Syndrome, ankle fusion worn out, two torn shoulders full frontal not repaired, grade 4 knees, feet that almost walk upside down. Constant pain, but yet it was pain I learned to manage with my TWO narcotics in small doses larger quantities. My doctor is leaving my practice, no one will write the scripts in the big multi state health care organization. I have on ly 6 weeks before I die. Both the CDC, AMA, and my own doctor says I will die from withdrawal no matter what due to how sick I am in other areas. I could have lasted a couple more years, but not I get a couple of weeks. This is actually against the law but they will spend millions to get the doctors to quite or be jailed. What the hell is wrong with this country. Veterans are getting this treatment too. So wrong. Open invite to my funeral more later.