Why are so many doctors suddenly being prosecuted by the federal government? Did doctors change their practice habits or did the federal government “redefine” what is a crime? The answer to this can be gleaned from past studies related to the prosecution of physicians. Doctors have always been sensitive to prosecution when it comes to the practice of medicine. Our biggest fear has always been that we would be targeted for political purposes, as a scapegoat for some public malady, or because law enforcement has a fundamental misunderstanding about the practice of medicine. As Dr. Jay Joshi said on the Daily Remedy Podcast, law enforcement likes everything to be clear and well-defined, with clearly demarcated boundaries between legal and illegal. That is the opposite of the practice of medicine, which is always complicated.
A good physician will be constantly upgrading and improving their practice. Taking CME courses and reading metastudies, to stay abreast of the latest updates in medical science. What confounds the nonphysician is what I will call Parker’s Law regarding medical practice, “For every study, there is an equal and opposite study.” Yes, I am stealing without remorse from the great Sir Isaac Newton, but he did mislead us all for centuries when it came to evidence-based medical practice. Advocating the ingestion of lead and mercury etc. This precept can be best proven by looking at the current politics of the day and comparing all the studies coming out for and against something. Like cannabis, for instance. Either CBD and CBG are “therapeutic agents that can replace NSAIDs” in relieving the pain of a fracture, actually enhancing bone healing as a bonus, or bad for you because, “harmful associations outnumbered beneficial.”
Granted, both studies have caveats and must be reviewed for relevance to the question at hand, but this is my point. Prosecutors and federal agents are not trained as physicians and are not adept at making these judgment calls when it comes to medical science. Don’t get me wrong. I am not saying that they are not skilled in their line of work. I’m just saying that they aren’t skilled in mine. How many times have we seen prosecutors and police absolutely refuse to consider the possibility that they might be wrong? It would be rare indeed to find a physician so completely convinced of their omniscience. Not that we don’t have our own fallacies, but we are well-trained in medical school to believe that we DO NOT know everything… and never will. Does Ivermectin help prevent hyperimmune response in COVID-19? I’m pretty sure of my stance on the subject… But I could be wrong.
That’s why I don’t think my thoughts on the matter should be enforced by law, or even those of the CDC and FDA, since prescribing the medication is legal, but this gets tricky. In Arkansas, there was a jail doctor who gave at least five inmates Ivermectin during the pandemic without their knowledge or consent, according to them. The inmates sued, and while a federal court threw out their suit against the jail, inmates, after all, don’t have much hope in today’s federal courts; a settlement was reached against the doctor. The ACLU said that the inmates were “courageous and resilient to stand up to the abusive, inhumane experimentation they endured…” While state authorities praised the doctor for a, “job well done.” This dichotomy is exactly why politicians and law enforcement should not be dictating the practice of medicine to doctors.
People have very strong and sometimes extreme opinions regarding medical treatments. These aren’t all just patients. Doctors do, too. Even without extreme positions, reasonable doctors can disagree completely on what’s best for a specific patient. This doesn’t usually mean one or the other is going to a dark cell somewhere, but when medicine is politicized, it certainly can. No example shows this better than the almost complete demonization of an entire class of pain medications, opiates, by federal law enforcement and the media. First, they made the most common error in science, confusing correlation with causation. Prescriptions went up when overdoses went up; therefore, prescribing opiates leads to overdoses. Then, they made the most common error in politics. Doubling down when you are objectively wrong. The first error is understandable, the second is inexcusable.
It is a fact that if you have a 1% complication rate, and you double the number of people you are seeing, you will double the number of people with that complication. This is not an epidemic; it’s simply math. The rate of addiction risk in the general population is about 2 to 4%. Since almost everyone has suffered an injury or surgery that caused severe pain, almost all adults have been exposed to opiates. A percentage of these will develop a problem. That does not obviate the recognition that severe chronic pain has terrible effects on quality of life. Prescription rates peaked in 2012 and started down, but overdose rates did not. That’s because these weren’t overdoses. They were poisonings. People thought they were taking their usual dose of heroin or their usual strength oxycodone, but instead, were being given fakes laced with toxic levels of fentanyl. This is the true cause of the crisis.
America’s opioid overdose problem is directly related to insufficient inspection of vehicles coming across the border. Fentanyl is produced in Mexico from precursors ordered from China. That makes the solution simple. Put every available agent on the border to intercept the fentanyl pouring across. Fentanyl accounts for over three out of four overdose deaths in America. If you correct for fentanyl, overdose rates have been fairly steady, increasing by number with the population but only a little per capita. Heroin and prescription pills DO NOT usually cause overdose, though some people are incautious, and others decide to end things with those drugs; almost all of these deaths have been due to unintentional overdose because of fentanyl poisoning. The DEA knows this, or at least they should know it or are willfully blind to the truth. Or perhaps going after doctors is just easier.
But many governments just can’t miss an opportunity to make something worse. From a study completed in 2019. The annual number of criminal cases against physicians charged with opioid-related offenses reported in the US news media increased from 0 in 1995 to 42 in 2019. Of the 372 physician defendants in these criminal cases, 90.1% were male and 27.4% were 65 years and older. Of the 358 physician defendants with a known clinical specialty, 245 (68.4%) practiced internal medicine, family medicine, or pain management. Drug trafficking was the most commonly convicted crime, accounting for 54.2% of all convicted cases, followed by fraud (19.1%), money laundering (11.0%) and manslaughter (5.6%). Of the 244 convicted physicians with known sentences, 85.0% were sentenced to prison with an average prison term of 127.3 ± 120.3 months.” Link here.
What changed so drastically? From mid-1995 to about 2005, physician prosecutions for opiate-related medical practice issues were relatively rare. Back then, almost all cases were for 1) self-prescribing opiates or prescribing them to others for personal use (though most of these were diverted for substance abuse treatment). 2) Trading prescriptions for sex, and 3) prescribing to a patient you never spoke to. All of these are clearly violations of the law and medical ethics. Then, starting in 2006 and progressing to 2011, there was a sharp increase in prosecutions. What happened? I believe that it was mainly due to no longer diverting self-prescribing physicians to treatment, but prosecuting them instead. This reflected the “get tough on crime” and “zero drug tolerance” ethic of that (and this) time. Prosecutions then dropped for the next three years by almost half.
I think this was due to an increased awareness by physicians that if you wrote a narcotic for yourself, you would go to prison. I haven’t seen any study on which method, treatment, or prison, had the best “success” rate, but I guess that would depend on how you measured success. America, since its founding in about 1976, a two hundred period, had a fairly stable percentage of its residents in prison or jail. About 93 per 100,000. This all started changing after 1976, jumping to a high of over seven times that number by 2009. If success is measured by the number of people incarcerated or the amount of political contribution from the prison industry, they correlate by the way, then job well done. If it is measured by a reduction in the problem the incarceration is supposed to prevent, it failed miserably. Drug use in America, the main driver of this trend, continued to increase.
2009 also happened to coincide with a surge in physician prosecutions, as noted before. This peaked in 2011 and dropped by almost half in 2012. Still far above historical norms but less than it had been. The rate oscillated up and down until 2016, then there was a sudden surge that took physician prosecutions to the highest level in recent US history. (The federal government had hammered doctors in the early 1900s before the US Supreme Court ruled that the federal government had no place dictating the practice of medicine.) So, what happened in 2016? The CDC guidelines happened, giving law enforcement a false metric they could propagate to a jury as THE opioid prescribing limit. I say false metric because it is on tape that there was “no time for evidence,” and the guidelines were admittedly opinion-based without sufficient evidence-based support.
For the first time in US history, doctors started being prosecuted for prescribing “without a legitimate purpose” based on “inadequate” physical exams, prescribing “dangerous medications in dangerous combinations,” and placing patients “at risk” of addiction and diversion. This is where the federal government has overstepped its authority and violated the law. The states determine the practice of medicine in this country, not the federal government, as confirmed by the US Supreme Court in multiple rulings. Who is the DEA to claim that a physical exam is “inadequate?” This presupposes that there is an “adequate” exam out there that can be enforced by law. There is not. A knowledgeable physician can tell more by talking to a patient than a less experienced doctor can with an eleven-system evaluation. The physical exam is a tool for the physician, not a weapon for the DEA.
Now, we come to patients being “at risk.” Both the CDC and DHHS, branches of the government that the Supreme Court has said CAN express a medical opinion agree that even if a patient has been diagnosed with addiction, they can be treated with controlled medications, including opiates if the physician believes they suffer from severe pain. So we have part of the US government saying it is okay to do something that another branch will then prosecute the physician for doing. These prosecutions are either the most egregious federal blunder or the greatest case of mass entrapment in history. And now we come to my personal favorite, “prescribing dangerous medications in dangerous combinations.” Do you know who does this? Every physician on the planet who prescribes anything to anyone for any reason.
Aspirin kills hundreds per year after a stroke or heart attack, but it saves tens of thousands. Antibiotics can cause renal failure and vestibular damage, as well as tendinopathies and nerve damage. NSAIDs kill three times more people every year than heroin. Prescribing dangerous medications in dangerous combinations is literally the job description of every physician on Earth. We spend four years in medical school learning precisely which patient needs what medication. It’s what we do. It is, in fact, the one thing we can do that no one else can without special and specific training. Having a doctorate in nursing does not allow you to prescribe medications. Nurse practitioners, physician assistants, and clinical pharmacists can go through extra training and earn this privilege, but an MD or DO is, by their very profession, an expert at this task. And that brings me to my final point.
Pharmacists are trained to understand, recognize, and prepare medicinal substances, and they are masters at this. However, pharmacists cannot prescribe medications because they are not trained to recognize disease and determine which medication would best serve the patient. To do this would require a lot of extra training and certification. And that’s why the only sector of American medicine more wrongfully prosecuted than prescribing providers is pharmacists. Pharmacists all over this country were targeted because they, “knew, should have known, or were willfully blind” to the “fact” that a patient with a correctly written prescription did not need that medication. While a pharmacist is required to report a fraudulent of forged prescription if they recognize one, it is insane to expect them to know somehow which or how much medication a patient needs.
That is why we have doctors. So why is the federal government, specifically the DEA, doing this? And how are they getting away with it? The answers are simple. Because they have the power to ignore the law, and the healthcare profession has failed miserably at protecting its own. This is a common flaw in human nature. I often used to wonder how a few hundred concentration camp guards could hold tens of thousands of prisoners, marching them in groups to the gallows or gas chambers. But now I understand. All it takes is personal fear. In about 2018, the DEA came to the Arkansas State Pain Committee, and told the doctors there, politically appointed to oversee the prescribing of pain medications, that if prescribing habits in the state of Arkansas did not change, the DEA would arrest and prosecute five doctors in that state. Here is a link to the public meeting recording.
Did the committee stand together? Pointing out that 42USC1395 forbids the federal government from trying to influence the practice of medicine? Did they fight for physician autonomy and the rights of the state’s doctors to practice according to their education, training, and experience? Perhaps some of them did. But definitely not all. Some, in fact, set about rapidly trying to find five doctors to serve up to the federal authorities to protect themselves, admitting during a public hearing that “we were all terrified.” And that brings us to the crux of the matter. What cannot be accomplished through legal means, can be achieved through fear. This type of legal terrorism is well known in police states, which this country is not supposed to be.
In Russia today, rocket scientists are being arrested and prosecuted to send a message. Putin was unhappy that weapons in his vaunted hypersonic arsenal, like the Kinzhal missile, were being precisely intercepted by Patriot and other missile batteries over the skies of Ukraine. This was not the fault of any of these scientists. They had done their jobs and had indeed created an accurate air launched hypersonic missile. They could not anticipate that the Patriot’s spotty success rate during the first Gulf War had triggered a rapid corrective response and that, with the help of allies, the United States now had an air defense system capable of taking out targets whose speed exceeded Mach 5. Indeed, American weapon systems had accurately intercepted missiles coming in from space with a velocity of over Mach 20, which is more than 15,000 miles per hour.
This is why Iran’s salvo of hundreds of drones and missiles was whittled down to just a few impacts. The predictive algorithms developed for intercepting nuclear-armed intercontinental ballistic missiles can be repurposed for other air defense missile systems. The Kinzhal never had a chance, really. And neither did the scientists. Evgeny Smirnov, an attorney for several of the scientists accused of treason by Putin, said the FSB’s motivation “was not to find the guilty, but to imprison several people in each institute” to publicly demonstrate that the government was doing “something” to prevent foreign agencies from accessing information on Russian missiles “that were the best in the world.” This demonstrates the blindness to error I spoke of earlier. Russian missiles aren’t “the best in the world,” and terrorizing dedicated scientists to pretend they are will not turn out well.
Who in Russia today, will look at their career choices and say, “I want to be a rocket scientist so the federal government can randomly choose me as a sacrifice to their inability to admit being wrong.” Very few, I would imagine. This is precisely why when young people ask me about going into medicine today, I advise against it. This is not the time. I suggest business instead. The CEO of Boeing received $32.8 million after overseeing the negligent deaths of 374 people… With a $2.8 million dollar bonus. Can medicine compete with that? It’s not even close. Most of your colleagues will abandon you, even if they know you are right. And the government will satisfy its goals by destroying the innocent more than the guilty, knowing the abject fear this will create. Think about it. The practice of medicine in America is being dictated by legalized terrorism. And things will not turn out well.
