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   Book Review

     Summer 2008

  
   
    The Criminalization of Medicine
     America's War on Doctors
     By Ronald T. Libby
     Praeger Publishers, Westport CT, PP.209, 2008

     Doctors have become the victims of the U.S. government's largely unsuccessful war on drugs. Initially 
    they were only collateral damage with a few corrupt bad actors caught up in the DEA and local law
    enforcement dragnet. More recently, many have become the target of these agencies due to the rising
    tide of prescription drug abuse and the poor results in curbing illegal drug trafficking. Similarly the
    prosecution of physicians for alleged Medicare and Medicaid fraud has been on the rise. Whether this
    has been a result of better investigatory techniques or political pressure to save money at all costs,
    or both, is hard to prove but the fact remains that more health professionals are being fined or going
    to jail for defrauding these government assistance programs.

    These are the subjects of Ronald Libby's new book. He is a professor of political science and a senior
    research fellow affiliated with the University of North Florida and an acknowledged expert on public
    health policy. To get our attention he starts his book with the sad tale of a young doctor, a pain
    specialist with a bright career ahead, who falls victim to the aggressive tactics of the DEA. Claiming
    he over-prescribed OxyContin, his offices were raided and he lost his DEA license. Subsequently he
    fell into a deep depression and wound up committing suicide, a tragic but not unknown ending. It
    seems as if the DEA has determined that only cancer patients should be allowed opiate analgesics as
    if other diseases: neuropathies, arthritis, spinal stenosis, fibromyalgia, migraines etc. may always be
    treated with lesser, non-narcotic pain killers or perhaps none at all. The paradox is that aspirin or
    NSAID drugs are often riskier in long term use than are the opioids.

    The main problem is differentiating the true addicts from those who are merely drug dependent, a
    subtle but critical difference. It is extremely hard to addict a true pain patient to opiate drugs but
    true addicts are clever and deceptive and doctors are not trained as policeman; nor do they have
    access to criminal databases as does law enforcement. Perhaps they should. Nor is there yet a
    centralized electronic medical record system that might identify those who "doctor shop" to get
    multiple prescriptions for controlled substances. Unfortunately pain has no blood test or imaging study
    to document its presence or severity; it is purely subjective and physicians tend to believe patients
    that claim to be in pain. Some state medical boards have initiated penalties for the inadequate
    treatment of pain but physicians remain reluctant to possibly invite the anti-drug authorities interest.

    The author makes the relevant point that the war on drugs in largely based on interdiction at the
    U.S. border. The illegal drugs are largely manufactured and distributed by criminal or rebel groups
    in foreign countries such as Columbia or Mexico; or in Afghanistan where, despite a huge military
    presence, the U.S. has been unable or unwilling to stop the heroin trafficking. Street sales are
    hard to spot and carry no record. How much easier it is to target physicians for alleged drug diversion
    since in most states, prescription records for the controlled substances may easily be obtained from
    pharmacies or doctors' offices directly and it is relatively easy to get addicts and dealers to testify
    against the prescribing doctor in order to escape or diminish prison sentences.

    The author then takes on the government's medical fraud bueauracracy that has led to the career-
    ending downfall of many innocent physicians and even those who have committed "honest mistakes."
    Such practices as basing pay raises and promotions on quotas of indicted doctors or fines collected
    are the rule for federal fraud investigators. Mr. Libby terms this "medical McCarthyism" wherein just
    the allegation of fraud may be enough to coerce doctors into paying heavy fines or face prison terms
    without exercise of redress to the courts. Often the government agency's funding is contingent upon
    how much they collect: one HHS agency quota deemed a ratio of five or six to one for the amount
    recovered to the cost of the investigation as what was expected of the investigators. One physician
    that decided to fight a charge of Medicaid fraud and go to court eventually settled for a relatively
    minor sum when most of the charges were dropped but was bankrupted by the legal fees and barred
    from Medicare anyway.

    Several chapters are devoted to detailed narratives of physicians accused of fraud and filing false
    claims with Medicare, mostly for "up-coding" patient treatments (submitting bills for services greater
    than those actually rendered or not given at all. The results are downright frightening. One family
    practitioner working for the air force lost essentially all her property and her marriage after a
    five year battle due to astronomical fines and legal fees. A psychiatrist was subject to a similar
    attack by federal prosecutors and wound up broke and a suicide. A very successful ophthalmologist
    in California was harassed by both the federal prosecutors and the state medical board for
    allegedly performing unnecessary cataract surgeries, fined and forced to repay over $1 million, lost
    his medical license and spent five years of an 11 year sentence in federal prison. The collusion of  
    between private insurance companies seeking to cut costs and law enforcement seeking to
    bring down high profile physicians is astounding. Such terms as prosecutorial overreach and witch
    hunt are used by the author and appropriately so. Perhaps the worst is that the fundamental legal
    concept of innocent until proven guilty is abridged in many of these cases and that even if criminal
    charges cannot be sustained, civil proceedings are undertaken against the unfortunate victims
    resulting in severe financial penalties and confiscatory legal fees.

    The author then returns to the war on drugs, citing an interesting historical social phenomenon, the
    cyclic history of drug tolerance and intolerance. From the relatively laissez-faire attitudes of the
    1880s to about 1920 drugs were not only tolerated but cocaine, opiates and alcohol were
    incorporated into many over-the-counter nostrums. During prohibition the government began to
    regulate the distribution of these products only to see the down cycle begin again in the 1960-1980
    period. From then on, possibly due to the crack epidemic of the 1980s, the war on drugs began in
    earnest and heavy fines and long prison sentences became the norm. Sadly, many well-meaning
    physicians were targeted as "drug dealers," perhaps more to establish records and reputations for
    prosecutors than any safety net for unsuspecting patients.       

    After detailing the details of several unfortunate doctors caught up in the drug dragnet, Mr. Libby
    compares the doctors' sad fate to the scapegoating of other ethnic or political targets during
    previous times of social unrest: the communist witch hunts of the 1950s or the lynching of blacks
    during the depression era. While this may be stretching the point a bit, it would be hard to convince
    physicians, especially those that treat pain, otherwise. Although some of the legal manipulations
    and court procedures used to persecute rather than prosecute these doctors are so excessive and
    hard to believe, they are the armamentarium of overzealous DEA agents and reputation-seeking
    prosecutors.

    A worthwhile book by an author who carries appropriate credentials. If there is a tendency to
    bog down in some of the detailed case histories, the treatise is quite short at only 183 pages.
    Despite this, the point comes across loud and clear.
   
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