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When Treating Pain Brings a Criminal Indictment


Federal drug-enforcement officials have made it a serious felony for doctors to overprescribe painkillers or, as the applicable law states, to prescribe controlled substances “other than for a legitimate medical purpose and in the usual course of professional practice.” But the line between legitimate and illegitimate prescription—as drawn by the Drug Enforcement Administration (DEA) and the Justice Department—is far from clear. This puts physicians in great legal jeopardy, and too often leaves their patients to suffer needless agony.


Last month a federal jury in Boston acquitted pain-relief specialist Dr. Joseph Zolot and his nurse-practitioner Lisa Pliner of overprescribing oxycodone, methadone and fentanyl. This prosecution shows why drug warriors need either to clarify the currently indecipherable line between treating pain and unlawfully feeding drug addicts’ habits, or get out of the business of policing and terrorizing physicians. Unfortunately, the government uses legal ambiguity for tactical advantage and will not readily clarify the lines it expects doctors to follow at their peril.

Dr. Zolot and Ms. Pliner were indicted in 2011 for their treatment of six patients between 2004 and 2006. They faced lengthy, consecutive sentences of up to 20 years for each count if convicted. Prosecutors alleged that the two providers recklessly dispensed narcotic painkillers without legitimate medical purpose and were, in effect, dealing. The two pleaded not guilty, maintaining that their prescription practices were proper, and that they were not responsible for their patients’ subsequent abuses. The jurors unanimously agreed.

The jury’s rebuke is not likely to end the harassment of physicians who specialize in pain management. Drug warriors collect the scalps of doctors whom they accuse of violating the laws; they have no concern in aiding in the relief of patients’ suffering.

In August 2004, after repeated urging, the DEA finally released guidance for the administration of narcotic analgesics. Its pamphlet, produced in cooperation with the medical community, was titled “Prescription Pain Medications: Frequently Asked Questions and Answers for Health Care Professionals and Law Enforcement Personnel.” Even if physicians disagreed with the line between legitimate medical practice and criminal over-prescription, at least they had notice of where the government drew the line.

But the DEA’s support of the guidelines was withdrawn less than two months after they were posted on the government’s website. And so doctors were left with no official guidance about how much OxyContin is enough to relieve their patients’ pain, and how much could land them in prison.

The DEA’s retraction coincided with the federal prosecution of Virginia pain physician, Dr. William Hurwitz, who was eventually convicted. The timing struck many observers as suspicious—did prosecutors realize that Dr. Hurwitz’s lawyers could claim that his prescribing practices conformed to its guidelines? The DEA has refused to explain why it withdrew its support, and the agency has issued no further guidance.

The prosecutions of Drs. Hurwitz and Zolot, nurse Pliner and others have ramifications that extend beyond the medical professionals unlucky enough to be caught in the DEA’s web. Doctors are increasingly afraid to prescribe certain drugs to patients who might seriously need them.

According to a 2005 survey conducted by USA Today, ABC and Stanford University Medical Center, only half of chronic pain sufferers, including cancer patients, report that their doctors are adequately relieving their pain. “It’s a criminalization of medicine,” Ms. Pliner told one Boston reporter after the trial, adding that she was afraid, at least for now, to work as a nurse practitioner.

Dr. Zolot’s lawyer, Howard Cooper, released a statement from his client saying that he hoped that other doctors “will realize that they should not be intimidated by the federal government in prescribing pain medication to their patients who are suffering in chronic pain.”

Yet Dr. Zolot’s acquittal should not give the medical community much comfort. It is probably an aberration, attributable to the Boston prosecutors’ failure to “flip” a witness. The government failed to convince nurse practitioner Pliner to testify against her boss in exchange for favorable treatment. Ms. Pliner believed that Dr. Zolot was a conscientious and caring doctor and that neither of them had done anything wrong.

Experienced criminal-defense lawyers have endless stories of their clients being offered favorable deals, even immunity from prosecution, if they would provide incriminating testimony against higher-ups. The problem, as Harvard Law professor Alan Dershowitzoften told his criminal-law students, is that this practice teaches witnesses “not only to sing, but also to compose.”

Defense attorneys in the 1980s and ’90s argued that offers of deals encouraged perjury and constituted obstruction of justice. These claims met with brief success in some federal district courts but were overturned at the appellate level, and the practice quickly resumed.

One lawyer in the Zolot case attributed the two defendants’ sticking together to the fact that the two shared a special kinship: They were Soviet refuseniks who came to America as political refugees and met in this country:. “Both have a healthy mistrust of the government.

Mr. Silverglate, a Boston criminal-defense and civil-liberties litigator, is the author of “Three Felonies a Day: How the Feds Target the Innocent” (Encounter, second edition 2011).