DRCNet has reported with increasing frequency on the cases of physicians,
usually pain specialists, who have run afoul of zealous prosecutors determined
to paint them as Dr. Feelgoods handing out pills like candy or as mad
scientists out to kill patients with pain-relieving opioids. The most
common pattern recently has been prosecution of Appalachian pain doctors for
prescribing Oxycontin, a powerful, time-release opioid
analgesic, but the virtual war on doctors extends nationwide, driven by
authorities eager to crack down on Medicare fraud and diversion of medicines
into the black market.
"This is part of a national enforcement policy led by the federal
government that is targeting physicians," Ronald Libby told DRCNet.
Libby, a professor of political science at North Florida State University in
Jacksonville, is currently conducting research on the topic. "There
are hundreds of cases like this out there, and I think this is a draconian
response, especially with the Oxycontin. But it goes further than
that," Libby said. "If you look at Department of Justice
reports going back to 1997, you see that this is clearly part of an
enforcement program."
While the program reflects efforts to tackle legitimate concerns about the
health care industry, according to Libby, doctors end up being the targets of
choice. "Federal officials mention health care fraud and drug abuse
as major issues, and US Attorneys across the country are
expected to produce indictments," said Libby. "But if you go
after the HMOs or the hospitals, they have all the resources and all the money
to defend themselves. Physicians are the easiest targets. They
don't have lawyers, they don't know all the intricacies of the law, they're
sitting ducks."
Utah psychiatrist Dr. Robert Weitzel knows the feeling. He recently
walked out of Utah's forbidding Point-of-the-Mountain state prison after his
conviction for allegedly killing five patients in a geriatric psychiatric unit
was overturned for prosecutorial misconduct.
"I did six months and a day before the judge threw out the verdict,"
Weitzel told DRCNet, "and I still face both federal and possibly another
state prosecution."
Weitzel's problems began when he was working with psychiatric patients at the
Salt Lake Headache Clinic. He would occasionally prescribe single-dose
opioids for patients suffering acute migraine pain, which resulted in an
office visit from the state office of professional responsibility and the Drug
Enforcement Administration (DEA) in 1996. "When I asked why I was
being investigated, they told me it was because I was a psychiatrist
prescribing opiates," said Weitzel.
The raiders demanded a urine sample from Weitzel, took copies of patient
charts and left, only to return six months later -- this time with guns on
hips -- to take more patient charts. In the meantime, said Weitzel, DEA
and state investigators had been questioning patients about the quality of
care they received, causing patients to leave the practice.
"They suspected I was diverting drugs for my own use," Weitzel told
DRCNet. "I wasn't. I've been urine tested more than 80 times;
I'm always clean."
With that investigation apparently closed, Weitzel moved to a new position as
assistant medical director of the Geropsychiatric Unit of Davis Hospital in
Layton, Utah. He was investigated again -- for Medicaid fraud -- but no
evidence of fraud was found. DEA investigators, however, heard a rumor
that five patients had died in the winter of 1995-96, dug deeper and concluded
that local prosecutors might want to take a closer look. (The fact that
patients in a unit dealing with elderly people with psychiatric problems as
well as other preexisting medical conditions might sometimes pass away was
apparently beyond investigators. Dr. Weitzel has made the patient
charts, as well as copious other materials related to the case available at
http://www.weitzelcharts.com
online.)
Weitzel was indicted and arrested on five counts of first degree murder in
August 1999. He was held behind bars until he raised $125,000 in bail
bonds. And even though it had held no hearing, the DEA sent a letter to
Weitzel's primary hospital telling them that Weitzel was "no longer
registered." The hospital then placed Weitzel on leave from the
medical staff. He has not been able to practice medicine since that day.
To add to his woes, the federal government resurrected its previous
investigation into his practice at the headache clinic and indicted him for
prescription drug fraud. According to the feds, Weitzel was diverting
opiates for his own use.
"Funny, isn't it?" said Weitzel. "This was a dormant
three-year-old investigation, they never filed any charges until after Utah
charged me in the geriatric unit case, then they came up with 22 counts of
obtaining controlled substances by deception. I still have to fight
this, but all I can afford is a federal public defender. He's telling me
to plea bargain."
The murder trial on state charges took place in June 2000. While
prosecutors were able to produce medical witnesses who testified that
Weitzel's care was beyond the pale for accepted medical practice, the defense
was forced to ask the judge to order the prosecution to quit harassing
potential defense witnesses. One affidavit filed by a local physician
for the defense said the doctor was told by the state that he "wouldn't
be too popular if he testified in the Weitzel trial."
After a five-week trial filled with complex and competing medical testimony,
Davis county jurors took five hours to return with verdicts finding Weitzel
guilty of two counts of manslaughter and three counts of misdemeanor negligent
homicide. Weitzel went off to prison, but his defense team quickly
uncovered more evidence of prosecutors tampering with potential witnesses.
This time, however, the prosecutorial misconduct rose to a level high enough
to get Weitzel's conviction overturned.
"The state's main witness, Dr. Brad Hare, is an anesthesiologist who does
do some pain work, but is opiophobic," said Weitzel. "But Hare
told the prosecutors that if they wanted a real expert on end-of-life pain
management, they should go see Dr. Perry Fine at the University of Utah. The
prosecutors talked to Fine, he told them they didn't have a case, and they
suppressed it. That was potentially exculpatory evidence that the state
should have provided to the defense," Weitzel explained. "They
did not do so. In fact, Dr. Fine testified that they told him to keep
quiet."
(Fine's testimony in the post-conviction hearings that led to Weitzel's
release from prison is available at Weitzel's web site. It makes
abundantly clear why the prosecutors wanted to keep him quiet. For
example, Fine testified that: "Again, my evaluation of Dr. Weitzel's care
as it pertained to these particular patients, it fell within the bounds of
what is viewed as ethical and appropriate care for patients in those
circumstances." More broadly, Fine testified that: "As a
result of a lot of work in the past few years, it's been determined that the
majority of patients who are in institutional care settings in the geriatric
population are underevaluated and undertreated for chronic pain conditions.
And the range is between 50% and 80% of those patients in fact have
pain-producing conditions... There are 10,000 or more per year in this state
alone who die under uncomfortable circumstances for whom physicians would be
able to provide palliative care.")
That testimony so undermined the state's case that Weitzel's anger at
prosecutors for withholding their knowledge of Fine's willingness to testify
in favor of Weitzel is easily understood. "Prosecutors have a
special duty to be fair and not crush people," said Weitzel.
"When Fine testified that they told him to keep quiet, that's obstruction
of justice," he said. "And when they denied that before the
judge, that's perjury. There's no way they'll get off without some
punishment."
Not if Weitzel can help it. He filed ethics complaints against Davis
County Attorney Mel Wilson, Deputy County Attorney Steven Major and Assistant
Attorneys General Charlene Barlow and Elizabeth Bowman with the Utah State
Bar's Office of Professional Conduct in April. The crux of his complaint
is precisely their failure to notify the defense of Fine's availability.
The bar refuses to comment on pending cases.
"Look," said Weitzel, "I think Mr. Wilson wanted to be a state
judge, and he thought he had a murderer on his hands and he trumpeted that
everywhere. Then he got the bad news from Perry Fine, but instead of
backing down decided to continue with a bad prosecution, and that's where he
really went wrong. This prosecutorial misconduct is really disgusting.
And they try to get back at me by threatening me with another trial."
Neither is Weitzel particularly happy with the state's leading physician's
organization, the Utah Medical Association (UMA). "Organized medicine,
the UMA, has not been helpful at all. There are people in the UMA who
have been very helpful and have done what they could," he told DRCNet,
"but if you are tainted, you really cannot expect the help of the
organized people, they will run the other way."
The UMA, for its part, says it is concerned about the general issue of proper
prescribing of pain medicines, but declined to address the particulars of
Weitzel's case. "We are very concerned about trying to understand
where is the line between non-standard practice and criminal behavior,"
UMA spokesman Mark Fotheringham told DRCNet. "We simply want to
know in a general way where that line is, so doctors can be assured they are
not crossing it."
But, Fotheringham assured DRCNet, "we have seen no evidence of a chilling
effect on physicians. The doctors we've talked to see this case as an
aberration."
Weitzel does not agree. "That's ridiculous," he snorted.
"When doctors look at actual care I gave, they say it was normal care.
I've had doctors telling me I didn't prescribe enough opiates. I've seen
one survey in which 20 out of 30 physicians said what happened to me makes
them less likely to prescribe opiates. I'm dismayed and somewhat
disheartened by the UMA's lameness on this."
He is not alone. The Association of American Physicians and Surgeons
(AAPS), a 5,000-member organization based in Arizona, has strongly backed
Weitzel, and has taken some knocks from the UMA for doing so. "I
think we're seeing prosecutors run amok all over the country, and physician
groups are telling physicians eveything will be fine," AAPS executive
director Jane Orient told DRCNet. "We've heard from many, many
doctors in Utah, and they say they will be hesitant to prescribe pain
medications. Doctors should be standing up for their colleagues,"
she said.
AAPS's efforts in favor of Weitzel prompted UMA head Dr. Val Johnson to lash
out at the group. Johnson also attacked the Salt Lake Tribune, which had
editorially worried about a chilling effect on doctors and wrote that
"the medical profession is more concerned with protecting its members
than providing competent care to patients."
The AAPS is a "relatively small" group that is not
"representative of the medical profession," responded Jones, and
"speaks for no one but its members." Then, blaming the victim
and his defenders, Jones wrote that: "If there is any 'chilling effect,'
it has come from uninformed or
incomplete reports, warning that the Weitzel case marks the beginning of a
deliberate persecution of physicians that may eventually result in patients
having to endure unrelieved, intractable pain."
But, Jones reassured the Tribune's readers, "The Utah Medical
Association, however, has never held this opinion and has tried to educate all
interested parties that there is no evidence of a state-sanctioned witch hunt
against physicians who legitimately use narcotics to treat pain."
And anyway, the AAPS is a "right-wing" organization, UMA's
Fotheringham told DRCNet.
"Well, we're in favor of freedom and the sanctity of the
physician-patient relationship," said Orient, "and we're against
interference in medicine, whether it is the government or the insurance
companies. We do take a very active position in defense of individual
physicians like Dr. Weitzel, who are being persecuted unjustly. We also
advocate for free market positions, such as medical savings accounts. We
encourage doctors to be independent; we want to avoid conflicts between
medicine and the bottom line."
Professor Libby also sees great danger in the current federal government
posture. "Medicine has been criminalized," he told DRCNet.
"Any physician can be indicted. Once they get a whistleblower to
contact the Justice Department and claim fraud has been committed, they go in
with guns and gather the charts, shut down all the computers, stop all
activity, and go fishing until they can find something they can use against a
physician," he said.
"There are dozens and dozens of these cases where doctors are indicted,
convicted, and sent to prison," Libby continued. "These are
political trials, they're not interested in guilt or innocence. This is
a largely symbolic political agenda, scapegoating doctors for the ills of the
health system. In part it is driven by the effort to uncover fraud, but
the war on drugs is also connected. DEA, FDA, all these agencies are
focused on physicians."
Driven by the health reform imperatives of the Clinton administration, the
attack on physicians has taken on a life of its own, said Libby.
"Whistleblowers can get some of the money they allegedly recover, and
doctors are treated like drug dealers, their assets seized -- and they go
to the investigating agency, not into Medicare," Libby explained.
"Dozens of physicians are languishing in jails right now. You tell
me if that makes any sense."
Certainly not to Dr. Weitzel. "I'm out of prison, but I've lost
everything. Right now I have the clothes on my back and a few personal
items. I'm living with a friend, eating lots of tuna fish. I had a
garage sale when I got out of prison, to try to pay for my lawyer for the
upcoming round. But I don't have enough, and I'm looking at a real
difficult situation."
But Weitzel is taking it all with unusual calm. "Hey, I'm a
Buddhist," he said. "The way I see it, I'm paying off all my
bad karma right here. I've learned a lot, and this will hopefully lead
to better care for patients because people will come to see that the elderly,
dying, and demented are clearly not receiving adequate treatment for
pain."
But he is not completely tranquil. "I've been caught up in this war
on drugs. There is a real tension between the drug warriors and doctors
who are just doing their job," he said. "It is ridiculous that
we allow this issue to be dominated by a moralistic Victorian stance.
Prohibition just hurts us as a society. I'm strongly opposed to our
current war on ourselves."
Weitzel will next appear in state court August 9 for a pretrial conference on
his upcoming second trial.
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