Jewish World Review April 16, 2004 /26 Nissan 5764

Drs. Michael A. Glueck & Robert J. Cihak

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Free — or not free — to treat pain


http://www.NewsAndOpinion.com | The time has come for America to figure out what kind of society we really are - not what kind we once were or think we are.

One place to start is to look at where medicine and law intersect, that is, where some of the most intimate aspects of human life come into contact with the raw coercive power of the state.

We've written on these matters many times. This week, we do it again. The subject is what's happening to Rush Limbaugh. At issue here are not his political views or his celebrity status. At issue is the legal treatment of a fellow citizen suffering from severe and chronic pain.

And what's also happening to the physicians who treat him.

On his radio show last October, Limbaugh admitted that he was taking prescription medication because of chronic pain from failed back surgery, that he had become addicted to his pain medicine and that he had voluntarily enrolled for in-patient treatment. The press publicized accusations that he had filled prescriptions for "2,000 pills from four doctors during a five-month period." That averages 13 pills a day, a low number for many people with chronic medical conditions, not just pain.

So whom did Rush Limbaugh hurt that justifies his present legal ordeal? What law did he break?

The State of Florida has a law prohibiting "doctor shopping," i.e., misrepresenting one's medical condition for, among other things, getting multiple prescriptions from multiple doctors. Presumably, this law differentiates among hypochondriacs, those who resell prescription pain killers and people seeking relief from pain. No one has suggested that Limbaugh falls into either of the first two categories. He was, by all accounts, a man in pain.

This fact, however, did not stop Florida prosecutors from using the "doctor shopping" law to harass and intimidate Rush Limbaugh, or violating the law they've sworn to uphold in order to get something - anything - on him.

On April 7th, in the Fourth District Court of Appeals in Florida, prosecutor Jim Martz admitted that they'd used search warrants and police to seize all Limbaugh's records from three of his doctors in Florida and one in California last November.

This violates the Florida law requiring the state to use a subpoena - not a search warrant - to seize medical records. Further, the law requires that only relevant material can be obtained. Nor is this merely state law. It's enshrined in the Constitution, which prohibits general warrants and unreasonable searches.

The purpose of the subpoena process is to allow the patient a chance to object to release of his or her medical records. In contrast, search warrants are typically executed with the help of armed police and without any chance for the patient (or doctor) to object.

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Florida prosecutors defended their own lawbreaking by saying they were afraid that the doctors or their staff might alter or destroy the records, publicly impugning the reputations of four physicians, all with exemplary records and declaring them capable and desirous of committing a crime (evidence tampering) that carries a fifteen year prison sentence.

What was the basis for the prosecutor's sudden fear?

We suspect the prosecutor reveals his real motive in the written brief to the Court of Appeal which baldly states "The State will not be in a position to know what it can charge, if anything, until the records are reviewed." In other words, the prosecutor is on a fishing expedition - which is exactly what Florida law and the constitution prohibit. As of this writing, Limbaugh has not been charged with any crime.

The medical records seizure gives yet another warning to doctors: If the state goes after somebody you're treating, you too can get caught in the meat grinder. In fact, count on it.

This frightening trend chills physician willingness to treat patients in pain and further erodes the trust at the heart of the patient-doctor relationship.

These threats also lead to a medical phenomenon that, only a few decades ago, would have been unthinkable: refusal to treat.

More and more, physicians are refusing to treat patients. In the beginning, it was about threats of lawsuits, with skyrocketing insurance premiums and court judgments that drove doctors out of obstetrics and surgery by the thousands.

Now the government is driving doctors away from treating pain and other maladies.

In an unfree society, the law coerces citizens and creates criminals. Law becomes a form of terrorism. Savage a few people, intimidate and control many others.

The abuse of law we observe here is uncomfortably similar to others we've discussed in this column. The message is clear and is getting through to doctors. When honest citizens cannot get pain medication because ethical doctors are afraid to treat them, ours is no longer a free society.

Editor's Note: Robert J. Cihak wrote this week's column.




Michael Arnold Glueck, M.D., is a multiple award winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a Discovery Institute Senior Fellow and a past president of the Association of American Physicians and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists. Comment by clicking here.

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