Dear Editors,

I am an ardent member of AAPS. Can you please forward the comments below to Dr. Faria and Dr. Orient.

In the July/August 1998 special issue of the Medical Sentinel, “The Police State of Medicine,” there are several “horror stories” of doctors who ran afoul of regulatory agencies. Each of them is missing certain important information that allows a reader to assume an important part of the story is not being told, to wit: Why did Dr. Lonergan become targeted for entrapment by narcotics regulating agencies? Was he truly careless with prescribing practices, or did he have a well-developed medical theory that called for the more aggressive use of narcotics? Or is there no known explanation? Silence allows us to assume the worst. Were there no colleague physicians to testify to the correctness of his practices, or his character? No expert witnesses? Silence allows us to assume the worst.

Similarly important information is missing from the article by Dr. Hurwitz. Unless it is demonstrated, not just implied, that the government agencies acted capriciously, and that their victims were without blemish, skeptical readers will doubt the message of the Medical Sentinel.

Thank you for reading these comments. AAPS can count on my continued support.

Wayne A. Pickard, M.D.
Brandon, FL

Dr. Lonergan Responds:

Dear Editors,

Thank you so much for sending to me for comment the communication from Dr. Pickard. The transcript of the trial is still on file at the Court House in Orange County, California and it is just too extensive to make available for the article in your excellent magazine. Therefore, let me direct specific answers to Dr. Pickard’s questions.

1. Why did Dr. Lonergan become targeted for entrapment by narcotics regulating agencies? I have tried to figure this out for myself and have no good answer. I was very active in the community and medical circles and enjoyed a very large practice. Maybe there was some professional jealousy (yes, it was an issue even in 1982 and now with the advent of managed care, it’s at its worst — what with the competition for HMO contracts).

2. Was he truly careless with prescribing practices, or did he have a well-developed medical theory that called for the more aggressive use of narcotics? No, I was not careless with prescribing practices. I perceive that I became known as a sympathetic physician who managed pain aggressively and therefore, ended up with a lot of patients whose pain problems had been ignored by their internists and oncologists. As a matter of fact, the State tried to use the argument that I was a “heavy prescriber” until this argument was thrown out by the judge who compared the size of the practice to the number of prescriptions. My “well-developed theory” was that the ultimate duty of the physician is to relieve pain as taught for centuries.

3. Were there no colleague physicians to testify to his correctness or his character? Yes, there was a long line of colleagues who testified and also submitted affidavits to the court — all to no avail. The jury was convinced by the State that I was some sort of horror “Dr. Feel Good for a Fee.” As a matter of fact, this was some of the language used by the uncomprehending lay prosecutors!

4. No expert witnesses? Yes, there were excellent “expert witnesses.” The professor of the Department of Pharmacology at Loma Linda University presented an excellent defense. Obviously, his testimony was ignored by the jury.

It appears that Dr. Pickard has the same doubts that I had upon hearing of the prosecution of others prior to my own experience. It is part of the naiveté of physicians. We simply don’t understand how the system works in its nefarious ways to usually win. The justice system has unlimited funds to use for their prosecution. The physician is soon bereft of resources in one of these miserable episodes. Our colleagues often feel that “There, but for the Grace of God go I” and slink away from any vociferous support that is so necessary, until it happens to them. At that point, silly adages such as “where there is smoke, there is fire” come into play and we distance ourselves from our colleagues who have been “dinged.”

The basic problem is the control of medicine by lay persons. We see this so well in “managed care.” Prosecutors have no business trying to judge the medical decisions of a physician. These cases should be reviewed by a panel of “peers” who are totally independent of the local political-medical scene. Unfortunately, I know of no State Medical Board that has these provisions. Often, these cases are “reviewed” by some young immature physician (sometimes still in a residency program) who is paid well for his services by the state. He either does not understand or is blinded in his loyalty to the paycheck he receives. This is the same phenomena that we see in workers compensation reports or the reports from social security examiners who are paid to keep people from their benefits. It is simple skullduggery.

I hope I have brought some insight to your readership and especially to Dr. Pickard. Unfortunately, the scenario outlined by those profiled in the Medical Sentinel is just the tip of the iceberg. Hundreds of physicians have been dinged around the country because these judgments are being made by lay people who know nothing of medicine and our heritage. To many of these types, we are merely rich and unfeeling people who need to be brought down a notch or two for our “sins” in relieving pain and suffering.

Tad Lonergan, MD
Desert Hot Springs, CA

Dr. Hurwitz Responds:

Dear Editors,

Dr. Pickard’s comments reflect what I referred to in my article as the “naive presumption of the regulators disinterested good faith.” He seems to be unimpressed by the fact that Dr. Lonergan’s prosecution was reversed by the Court of Appeals with a decision accusing the prosecutor of “lying, deceit, skullduggery, prevarication, and of needing a lesson in basic honesty,” according to Dr. Lonergan’s article. Appellate judges are not noted for their radicalism or intemperate use of language. Dr. Pickard is disposed “to assume the worst” about a colleague entrapped by drug investigators rather than to consider the possibility that dishonesty and brutality might be associated with the drug enforcement effort.

Dr. Pickard suggests that support by expert witnesses and colleagues might bolster the defendant doctor’s credibility. Three of this country’s leading experts testified on my behalf. Dr. Mitchell Max, Chief of the Pain Consultation Service at NIH, came to my office, reviewed all of the charts at issue, and spoke in person or by telephone with a large percentage of the patients whose charts he had reviewed. Dr. C. Stratton Hill, Jr., former chief of the pain service at M.D. Anderson Cancer Center, provided a video-taped deposition in which he went through each patient record affirming that sufficient information was recorded to support a diagnosis which warranted the medications prescribed. Dr. James Campbell, past president of the American Pain Society and head of the Blaustein Pain Center at Johns Hopkins University School of Medicine, had to endure demeaning and insulting questions implying that he was not a solid member of the community because he did not belong to the local Lions or Rotary Clubs! Dr. Russell Portenoy, then at Memorial Sloan-Kettering Hospital’s Division of Pain Medicine, author of widely respected guidelines for opioid therapy, submitted a supportive letter. The opinions of these experts were ignored.

Contrary to Dr. Pickard’s presumption, the “aggressive use of narcotics,” based on individualized titration in response to patients’ analgesic response, tolerance, and side effects, is the accepted approach to opioid dosing. By itself, the number of pills prescribed to patients should simply not provide “probable cause” as a basis for undercover investigation and regulatory or criminal prosecution.

Finally, I would take issue with Dr. Pickard’s characterization of the regulatory action as capricious. The actions of the Virginia Board of Medicine and Dr. Lonergan’s prosecutor were in conformity with the enforcement pattern established after the passage of the Harrison Narcotic Control Act of 1914. The traditional enforcement approach was based on beliefs about opioid therapy that have been effectively challenged by research and clinical experience over the last 20 years. The new understanding requires a more sophisticated evaluation of physician prescribing to distinguish proper pain treatment from diversion for illicit purposes under the guise of medical practice.

William E. Hurwitz, MD, JD
McLean, VA

Mr. Schlafly Responds:

Dear Editors,

The availability of colleagues or patients to testify in defense of a physician is often far more limited than Dr. Pickard suggests. Physicians are often indicted by the government without any prior opportunity to testify in their defense, or to arrange for others to testify. During a criminal trial, moreover, judges have the discretion to limit sharply or even completely prohibit testimony by colleagues or patients. In trials involving disputes over CPT coding, it is common for the judge to restrict patient testimony on the grounds that it is supposedly irrelevant to billing issues, even though prosecutors often argue that the doctor was exploiting patients. AAPS was successful in eliciting criticism by the Ninth Circuit of such limitations in the trial of Dr. Rutgard.

More generally, Dr. Pickard and all physicians may be surprised at how few, if any, colleagues are willing to risk their own careers in defense of a fellow physician. Typically, a prosecution of a doctor represents an effort by HCFA, a hospital, or an insurance company to ostracize him. How many colleagues want to walk into that line of fire, with nothing to gain personally? Sometimes colleagues are willing to make such sacrifices, but it would be a mistake to draw any conclusions from their absence. Even the most innocent of defendants may find that his colleagues are too weak to defend him. See, e.g., Luke 22:54-62.

Andrew L. Schlafly, Esq.
New York, NY

Originally published in the Medical Sentinel 1998;3(6):193-195. Copyright © 1998 Association of American Physicians and Surgeons (AAPS).