“The moral test of a government is how it treats those who are at the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadow of life, the sick and the needy, and the handicapped.” – Hubert Humphrey
passionate pachyderms
Pharmacist Steve steve@steveariens.com 502.938.2414
Mr. Merrick Garland had back surgery over the weekend. Specifically, he had an interlaminar decompression to address his lumbar spinal stenosis. It’s a common, minimally invasive surgery. But, surgery is surgery. There’s always risk. So we pray for a speedy recovery and we wish him nothing but the best long term.
However, we can’t help but conjecture about his post-operative pain management. He’s the nation’s top federal law enforcement agent, after all. He oversees the Department of Justice (DOJ) and, by extension, all subsidiary law enforcement agencies, including the Drug Enforcement Agency (DEA). Over the weekend, he added another title – surgical patient – and as part of that role, he likely received opioids during and after the surgery for his pain management. That’s the standard of care for a laminar decompression.
It poses an interesting conundrum. Does Mr. Garland accept opioids for his pain relief, knowing that opioids are at the epicenter of the DOJs and DEAs modern, medical iteration of its ‘war on drugs’? At what point does he act like a patient or a law enforcement agent when receiving opioids? We can only imagine. But we surmise it would go something like this:
While Mr. Garland is recuperating from surgery, the physician overseeing his recovery would assess the surgical incision and would monitor for adequate pain relief. At some point in the clinical encounter, Mr. Garland would answer the perfunctory question rating his pain on a scale from one to ten.
When Mr. Garland responds with a numerical value, should the attending physician believe him? It would be the clinically sound thing to do. But legally, would the physician place himself or herself in jeopardy by trusting Mr. Garland? It’s Churchill’s riddle wrapped in a mystery inside an enigma.
Here you have a patient recovering from surgery who also happens to be a federal law enforcement agent – the top one at that – who oversees the very agencies that could put the overseeing physician in prison depending on the clinical decision made in this exact circumstance.
What happens when Mr. Garland says his pain is increasing? Should the physician document the presence of breakthrough pain? Or should the physician document that Mr. Garland is likely malingering and exhibiting drug-seeking behavior? Or maybe document both? Hedge against both options, just in case Mr. Garland decides at first to act like a patient and then decides to behave like a federal agent after the fact.
But this is only one decision at one point in time. For patients recovering from an interlaminar decompression, the average recovery time is a little over two days. This means the attending physician would have to review Mr. Garland’s pain management for at least six encounters, assuming three shifts per day and one clinical encounter per shift. What happens after the initial encounter?
Should the attending physician reflexively implement a tapering schedule without first discussing it with Mr. Garland? Or, to be extra safe, should the physician simply discontinue any post-operative pain management that involves opioids? Better yet, discontinue any and all prescription opioids and provide medical literature that discusses the psychosomatic nature of pain – let Mr. Garland know that his post-operative pain is simply in his head.
What about proper oversight? What if Mr. Garland monitors the number of times he’s asked to take a urine drug screen or the number of times he’s asked to repeat imaging studies? Assuming Mr. Garland stays the average number of post-operative days, should the attending physician repeat imaging studies on the second post-operative day – or just assume that Mr. Garland is in continued pain because he recently had surgery? Wouldn’t Mr. Garland chalk that up as a lack of proper oversight?
If we were in the attending physician’s shoes, we’d order as many urine drug screens and imaging studies as possible. In case, as Mr. Garland recovers, he transitions from patient to agent faster than he’s cleared for discharge. On the other hand, what if Mr. Garland suspects that the attending physician is over-utilizing urine drug screens and imaging studies? How should the physician respond in that case?
Maybe the attending physician should ask Mr. Garland what to do. In this way, the physician can claim he or she sought the counsel of law enforcement when making a clinical decision. It’s probably the safest way to go.
What if Mr. Garland decides not to act as either a patient or a law enforcement agent, but as an undercover agent? In that scenario, by asking Mr. Garland for advice on whether to adjust or continue pain management, or to order urine screens or imaging studies, is the physician failing to provide sufficient oversight?
Perhaps the physician can ask Mr. Garland what he believes the appropriate course of care management regarding his pain relief should be – but then do the opposite. In this scenario, the physician covers all bases and treats Mr. Garland the patient, the agent, and the undercover agent.
Or, thinking more realistically, the physician should just transfer the post-operative care for Mr. Garland to another unit and take a few days off. Why take the risk? After all, you can’t get targeted if you abandon your duty as a physician.
—
This satire mimics a speculative clinical scenario that sadly is far too real for far too many physicians across the country. We pray that Mr. Garland recovers well and returns to work in as timely a manner as possible. But we also hope that Mr. Garland learns from his experiences as a patient and recognizes the harms the DOJ and DEA are causing physicians and patients alike.
Circuit Judge Roger Gregory said Smithers’ jury instructions were defective because jurors could have convicted him solely for acting outside the bounds of medical practice, regardless of his knowledge or intent.
He also said such an error was not harmless, even in cases with “copious evidence of a defendant’s guilt.”
Could giving the jury “defective instructions” be intentional, hoping the appeals court didn’t catch it? Did the original judge intentionally or unintentionally give the jury instructions that misstated the law? Could part of our federal judicial system be so uninformed or so corrupt to “put their finger on the scale”?
Doctor who prescribed more than 500,000 opioid doses has conviction tossed
Feb 2 (Reuters) – A Virginia doctor who prescribed more than 500,000 opioid doses in less than two years had his conviction and 40-year prison sentence thrown out by a federal appeals court on Friday because the jury instructions misstated the law.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia also ordered a new trial for Joel Smithers, 41, who has been serving his sentence in an Atlanta prison.
Overprescription of painkillers is one of the main causes of the nation’s opioid crisis. Nearly 645,000 people died in the United States from overdoses involving opioids from 1999 to 2021, including 80,411, in 2021 alone, according to the U.S. Centers for Disease Control and Prevention.
Prosecutors said Smithers prescribed controlled substances including fentanyl, hydromorphone, oxycodone and oxymorphone to every patient he saw, at the Martinsville, Virginia office he opened in August 2015.
A majority of patients traveled hundreds of miles each way to see Smithers, who did not accept insurance and collected more than $700,000 in cash and credit card payments before law enforcement raided his office in March 2017, prosecutors said.
Jurors convicted Smithers on 861 counts in May 2019, after being instructed that the government needed to prove he acted “without a legitimate medical purpose or beyond the bounds of medical practice.”
The appeals court found this instruction defective in light of a 2022 U.S. Supreme Court decision that said the crime of prescribing controlled substances required a defendant to “knowingly or intentionally” act in an unauthorized manner.
Writing for a three-judge panel, Circuit Judge Roger Gregory said Smithers’ jury instructions were defective because jurors could have convicted him solely for acting outside the bounds of medical practice, regardless of his knowledge or intent.
He also said such an error was not harmless, even in cases with “copious evidence of a defendant’s guilt.”
The office of U.S. Attorney Christopher Kavanaugh in the Western District of Virginia did not immediately respond to a request for comment.
“A doctor’s guilt depends purely on his subjective beliefs,” said Beau Brindley, a lawyer for Smithers. “Any attempt by the government to pretend otherwise was resoundingly rejected.”
The case is U.S. v. Smithers, 4th U.S. Circuit Court of Appeals, No. 19-4761.
This article is abt 10 yrs old, but according to some news on TV tonight. There are more and more law firms and attorneys – who were involved with the Tobacco Settlement and are taking a closer look. Just a couple of months ago the state of Kentucky made online gambling legal and in doing so. In the law, they are to put aside a couple of percentage points of the state’s gambling revenue to fund assisting those who end up with gambling addiction. Within a couple of months, the number of calls made to the gambling hotline tripled. Is the word “ADDICTION” a dog whistle to law terms. Is this an indication that they believe that they have gotten all they are going to get out of the “opioid crisis” and with the Tobacco settlement money drying up this year, they need to find another industry providing a legal product/service that they can extract money out of?
Lawyers plot gambling addiction suits as casinos go online
LOS ANGELES (Reuters) – States and casinos racing to legalize online gaming may find some unwelcome visitors on their websites: product liability lawyers.
A group of 10 lawyers and academics with experience in prior liability cases met in Indianapolis in mid-April to discuss whether a lawsuit claiming online gaming further promotes gambling addiction has a shot at winning.
The legal strategy under consideration would be modeled on the class action lawsuits that forced cigarette companies to agree to pay $206 billion over 25 years to compensate for medical costs, caring for people with smoking-related illnesses, and to fund anti-smoking advocacy groups.
Boston-based lawyer Scott Harshbarger told Reuters that more than 20 attorneys from high-profile law firms were among those invited to the meeting in Indianapolis and who have been communicating for the past few months. The meeting was billed as a “gambling litigation study group,” according to emails reviewed by Reuters.
Harshbarger, a former Massachusetts attorney general who led states’ efforts against Big Tobacco, said he could not attend the Indianapolis meeting but is working with the group in studying the parallels with the gambling industry.
Former Assistant U.S. Attorney Michael Fagan, who prosecuted 30 cases against offshore sports betting operations from 1997 to 2008, helped put together the Indianapolis meeting, according to one email. He declined comment.
The National Council on Problem Gambling estimates that gambling addictions account for $7 billion a year in added health care and criminal justice system costs. Gambling industry critics argue that casino companies use deceptive practices to lure consumers, depend on addiction for profits and should be held liable for the billions of dollars in costs to society.
Gambling company representatives reject the charges, saying their industry has a history of acting responsibly and helps to identify customers who may need treatment.
“It’s a government-approved, regulated product,” said David Stewart, a Washington-based lawyer with Ropes & Gray and general counsel to the American Gaming Association (AGA). “Nobody’s made Nordstrom reimburse somebody who is a shopaholic.”
Previous lawsuits targeting traditional gambling have been thrown out by the courts, Stewart said.
“The legal arguments are flawed,” he said. “It’s gambling. And when you gamble, you lose.”
ONLINE EXPANSION
Nevada became the first state to go live with online poker this week as Ultimate Gaming, a subsidiary of Station Casinos LLC, launched its Internet poker site Ultimate Poker in the state and began taking bets.
Ultimate Gaming CEO Tobin Prior said his company offers safeguards against problem gambling. “We offer an extensive array of limits that players can place on themselves as well as the option to opt out of betting entirely,” he said.
But critics think betting and time limits should be mandated rather than options, and also have found fault with the enforcement of so-called “opt out” or self-exclusion programs.
New Jersey is expected to release regulations for online gaming in coming weeks. Massachusetts, California, Hawaii, Illinois and Mississippi are among states also considering online gambling.
MGM Resorts, Caesars and Wynn Resorts have all applied for Web operating licenses. All three companies deferred their comments to the American Gaming Association.
CRAPS AND CIGARETTES?
It was not clear how the Indianapolis group might deal with past precedents working against them, including a 2004 federal appellate ruling that millions of gamblers could not be declared a single class because each gambles for different reasons.
That ruling derailed a decade-old legal effort to prove slot machines were inherently deceptive devices.
The recent gathering, though, examined possible similarities between gambling addiction and addiction to cigarettes.
“Big product liability litigators are comparing Big Tobacco cases in depth with gambling cases involving casinos and addiction,” said University of Illinois professor and author John Kindt, who attended the meeting in Indianapolis.
Critics claim that in addition to depending on addiction for profits, gaming companies pulled a page from Big Tobacco by running ads that glamorize their offerings and target youth.
Attorney Lori Stoltz of Canadian law firm Adair Morse LLP represents 10,000 problem gamblers in a suit against Ontario Lottery and Gaming Corp, who claim they were exploited and suffered losses because government-owned OLGC did not prevent them from gambling despite their signing self-exclusion forms.
Stoltz was not at the meeting, but believes similar lawsuits are likely. “Self-exclusion and where there isn’t appropriate follow through is one area that has come under challenge,” Stoltz said, adding, “There’s bound to be more litigation in this area.”
Gambling proponents say it is impossible to measure the social costs of gambling addiction.
“We don’t dispute but don’t confirm the $7 billion (in estimated costs) because pathological gambling often occurs in individuals with other addiction issues and to specifically attribute the costs to one disorder is a leap,” said American Gaming Association spokeswoman Holly Wetzel.
Does this point to a lack of commitment to our war on drugs? Normally in our legal system, anyone involved in a crime where someone is killed, even if they were just driving the get-a-way car. The person driving the car is equally guilty of the murder created during the crime. Here is a corporation that is selling paraphilia to create tablets from illegal fentanyl and nearly 300/day of our citizens are killed from such illegal fentanyl tablets. eBay doesn’t directly sell these products, they are just a conduit for some entity that is selling these paraphilia. Most/all of these sales are being done using some sort of currency to finalize the transaction. I mentioned THREE LEVELS in causing these deaths, and all the DOJ goes after is the deepest pockets. Will those people who are selling and buying all these paraphilias, will just find new sources and continue killing our citizens?
DOJ reaches $59M settlement with eBay over sales of thousands of pill presses
The Justice Department announced a $59 million settlement with eBay on Wednesday to resolve allegations that the e-commerce company made it easy for thousands of pill presses to be sold on its website that could be used by criminals to make illegal drugs.
The company has agreed to pay the steep financial penalty — the fourth largest settlement ever through the Controlled Substances Act – and implement a series of changes that will make it harder for the pill presses and other related items to be sold in the future.
The DOJ said it found that through a review of the company’s policies that it failed to require identity verification of purchasers of the pill processers, some of which had the capability of pressing thousands of pills per hour. Such machines are commonly used by drug dealers who manufacture counterfeit pills that can be laced with fentanyl, the DOJ said.
Seal of the Department of Justice before a news conference in Washington, D.C., Jan. 24, 2023.
Al Drago/Bloomberg via Getty Images, FILE
“Counterfeit pills laced with fentanyl are a significant contributor to the deadly overdose epidemic,” said Associate Attorney General Vanita Gupta, chair of the Department of Justice’s Opioid Epidemic Civil Litigation Task Force. “The Department is committed to using all available enforcement measures to ensure that companies involved in selling the equipment that makes it possible to create these dangerous pills comply with the Controlled Substances Act.”
MORE: eBay to pay $3 million for harassment targeting Massachusetts couple over newsletter
In addition to the monetary settlement, eBay agreed to maintain and enhance its compliance program with respect to its prohibited and restricted items policy on the sales of pill presses, counterfeit molds, stamps and dies, and encapsulating machines, the department said.
In a statement, the company said it “expressly denies the DOJ’s allegations and the settlement does not include any admission of wrongdoing.”
The statement added, “eBay’s actions to remove products that could be used for counterfeit pills – including dies, molds and pill presses – prior to any request from the DOJ or other authorities, and years before the government turned its attention to these products, prevented tens of thousands of potentially problematic listings from appearing on our marketplace. Government officials have repeatedly commended eBay for our partnership with law enforcement and efforts to support investigations into illegal pill press usage.”
“The moral test of a government is how it treats those who are at the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadow of life, the sick and the needy, and the handicapped.” – Hubert Humphrey
This was, of course, not law, but an ideal, and although the United States has never lived up to that premise, recently, it quit trying. You will often find that the worst violations of human rights will be committed by a party supposedly dedicated to the opposite. The Nazis called themselves socialists so they could target communists, and the Democratic People’s Republic of Korea, is not quite as democratic as the Republic of Korea. It was, in fact, a social democrat, Roosevelt, who issued Executive Order 9066. It allowed the internment of Japanese American citizens en masse, while at the same time doing nothing to Italian and German Americans.
The targeting of Japanese Americans is a study of the difference between an investigation, where you try to solve a crime, and an inquisition, where you look for an excuse to lock an individual up. The FBI was tasked with finding these excuses, and they did a great job. Black powder, legally possessed by farmers to blow up stumps, was suddenly portrayed in court documents as explosive for sabotage by the emperor’s minions. Family scrolls and carvings were proof of fealty to Hiro Hito, at least according to the FBI. Recognition of the evils that could come from unquestioned law enforcement/government power, they are one and the same, came after World War II, when most Americans became aware of Nazi, Fascist, and later Soviet atrocities. In fact, we feared becoming like these regimes. In the 50s and 60s, our fear of socialism led us to the excesses of COINTELPRO, Operation Northwind, Operation Wormwood, and MKULTRA. Yes, that last one is not just a conspiracy theory; none of those are. Agents of the US government tried to bring about the death of Martin Luther King Jr, planned false flag terrorist strikes against Americans, and experimented with brainwashing and mind control, respectively.
After the assassination of a US president, the US did some soul-searching and realized that we did not have the rule of law if there were no laws the government had to follow, and new rules were set in place. By the 1970s, the US Supreme Court had ruled it was unconstitutional to use false evidence or testimony in a prosecution. It always amazes me, by the way, how the court’s opinions on a “clear reading of the Constitution” change with the political winds. In Dred Scott, slaves are property. In Civil War, “all are created equal”. By the mid-1980s, courts, and politics had chipped away at these rights to the point of obsolescence. I remember this time well, as I started serving in the military in the early 80s, when the Cold War was in full swing. We feared nuclear annihilation at the hands of soulless Soviet bureaucrats, and the US invested heavily in the military and in intelligence agencies. I was proud to serve during this time, making sure that WE did not become like THEM.
If you had told me back then that the actions of the US government would become almost indistinguishable from those of the Soviet Union AFTER they fell without firing a shot, I would have never believed you. But here we are. It was, in fact, a new war that brought about these changes. A war not against another nation, but against the American people itself, or at least about 40% of them. The dramatic changes wrought by this war were brought about in part by a president I voted for, Ronald Reagan, but did not come fully to fruition until the presidency of Bill Clinton. But let’s start with Reagan. Reagan did a lot of things. One of the things he did was change the rules in American courts. Arguing that the criminal justice system had collapsed, he advocated legal changes that would make it easier to deny the accused bail and allow prosecutors to use illegally seized evidence in court. He made it clear that it was time to put “public safety” ahead of “offender’s rights.” He argued that poverty and a bad environment did not produce crime and that retribution for criminals should be swift. While speaking to several thousand police officers, he said he regretted not having authorized more executions while he was the Governor of California. He would point out examples of murderers who had killed again after parole and said that “our legal system has failed to carry out its most important function -the protection of the innocent and the punishment of the guilty.” This was hard to argue against. Human beings, though capable of rational thought, most often make their decisions based on visceral emotional responses from much older systems in the brain. We then put those more rational systems to work, justifying our decisions. He passionately believed that capital punishment would reduce crime. Or at least said he did. He was, after all, a politician, and an actor.
This “common sense” argument has been proven false over and over again, yet it has a degree of “truthiness” to it, as Stephen Colbert would say, that does not allow it to die. Reagan also believed that the “exclusionary rule” prohibiting the use of illegally seized evidence, should not prohibit the use of that evidence at trial. This is also inherently truthy. No sane person wants a serial killer to go free with two bodies in the trunk because the taillight wasn’t really out when he was stopped. Reagan also argued to limit the use of habeas corpus petitions. Habeus corpus allows someone to argue that their trial or the verdict was unfair or wrong, and Reagan feared bad people would get off on “a technicality.” But what message did those words from the president of the United States, and the subsequent changes Reagan championed in the courts, have on our justice system? Simple. If you have to break the law to get a conviction, that’s okay, as long as you get the “bad guy.” People in prison whine too much and should not be listened to, and not enough bad guys are getting locked up or killed. In the past, police would carry throw-away guns to plant in case they shot an unarmed person; now, that wasn’t necessary; just say you ‘feared for your life.’ The biggest coward gets to cap the most people nowadays. And “testilying” became a phrase used by many corrupt police officers to describe what they did in court.
Sure, some cops had lied before, but in the past, there were consequences: Especially for lying under oath. Police and federal officers caught doing this were almost always fired; not anymore. Now, in the age of Conviction Uber Alles, they are treated like heroes. Prosecutors routinely allow witnesses, coerced, threatened, or paid, to lie to a grand jury, knowing that no one will hold them to account. And they are right: Especially when it comes to federal prosecutors. There is absolutely no one who can save you if they are determined to destroy you. And it all goes back to the war on drugs. Law enforcement officers can now seize and take your cash and other property without convicting you of any crime, just by saying they “thought” you were involved in drug trafficking. They routinely go to college campuses, arresting students and sending them out with orders to rope in more or do hard time: Destroying young lives before they even have a chance. They find marginalized groups of people and plant agent provocateurs in their midst to take them from peaceful protesters to having “conspired” to commit a criminal act.
And now, they imprison physicians who dare to practice medicine in a manner in which some politician, prosecutor, or federal agent does not approve. Treat the wrong patient, wrong by color, income, or ethnicity, with medications that should be reserved for “good” people, and they will send you away. Federal institutions like the VA started taking veterans off of medications that had kept them stable for years. Saving dollars and ignoring the dramatic increase in suicides. Now, the surviving veterans are routinely dying in agony or on the street: All in the name of the greater good. I used to be so proud of my uniforms. Now, I often feel that I should bury them on the little farm I grew up on in rural Arkansas. About ten centimeters down, I think, so they are in the soil of a nation from a different time: One that valued our service and protected the rule of law.
Do the observations stated about this case suggest that this federal law is being violated? It is well known that “tricky dick” Nixon who pushed Congress to write the Control Substance Act and he was also a well-known bigot & racist and wanted to put all hippies and blacks in jail. Could he have put a structure in this bill to create such a “Kangaroo court” structure to help get more hippies and blacks in jail? How this DEA hearing proceeds sounds much like how a grand jury functions. The person being brought before a grand jury has no representation, the prosecutor controls what “facts” are presented to the grand jury. It has often been stated that a Grand Jury could indict a “ham sandwich”. Except “ham sandwiches ” don’t write prescriptions for controlled meds to treat pts!
42 USC 1395: Prohibition against any Federal interference
From Title 42-THE PUBLIC HEALTH AND WELFARE CHAPTER 7-SOCIAL SECURITY SUBCHAPTER XVIII-HEALTH INSURANCE FOR AGED AND DISABLED
§1395. Prohibition against any Federal interference
Nothing in this sub chapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.(Aug. 14, 1935, ch. 531, title XVIII, §1801, as added Pub. L. 89–97, title I, §102(a), July 30, 1965, 79 Stat. 291 .)
Statutory Notes and Related Subsidiaries
Short Title
For short title of title I of Pub. L. 89–97, which enacted this subchapter as the “Health Insurance for the Aged Act”, see section 100 of Pub. L. 89–97, set out as a Short Title of 1965 Amendment note under section 1305 of this title.
Protecting and Improving Guaranteed Medicare Benefits
“(a) Protecting Guaranteed Medicare Benefits.-Nothing in the provisions of, or amendments made by, this Act [see Short Title note set out under section 18001 of this title] shall result in a reduction of guaranteed benefits under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.].
“(b) Ensuring That Medicare Savings Benefit the Medicare Program and Medicare Beneficiaries.-Savings generated for the Medicare program under title XVIII of the Social Security Act under the provisions of, and amendments made by, this Act shall extend the solvency of the Medicare trust funds, reduce Medicare premiums and other cost-sharing for beneficiaries, and improve or expand guaranteed Medicare benefits and protect access to Medicare providers.”
Gemi Spaulding v. Merrick Garland: Reflections on Our Morning in The United States Court of Appeals for the DC Circuit
May it please the court, my name is John Flannery and it’s my privilege to represent these chronic pain patients.
The standard by which we measure a civilization is how we treat our own and by that standard we have done a miserable job, not just in this case, but in pain cases generally.
We don’t do anything to deal with the incalculable suffering that is foisted upon people, indeed by the careless act such as this one with Dr. Bockoff by which they suspended his license. They did it based on what a doctor, a hired gun, had said who had been found not to be credible in an Ohio Federal case. They did it based on extrapolating from five patients who basically didn’t have any serious charge about their treatment until the government was involved.
The DEA, by the administrator, suspended the license of Dr. Bockoff, a ban forcing him to abandon his patients on the spot even though abandonment is sanctioned in every state. The DEA did this. There was nothing the doctor could do about it. There was no notice or opportunity to be heard by the patients and as a result they were cast off to deal with things as they may.
From left to right: Hon. John P. Flannery, Louis and Kristen Ogden of Virginia, and Anne Fuqua of Alabama.
My name is Kristen Ogden and I advocate for chronic pain patients. My husband, Louis Ogden, is one of them; he has suffered from pain since he was a child. Dr. Bockoff’s chronic pain patients have waited a long time for their day in court.
Oral Arguments for the Court of Appeals for the D.C. Circuit were scheduled to begin at 9:30 a.m. on the morning of Tuesday, January 23, 2024. Louis and I drove to D.C. the evening before and checked into a hotel. Our friend Anne Fuqua, chronic pain patient and long-time advocate, had let us know she had arrived in D.C. earlier in the afternoon on January 22. No way any of us were going to be late for this!
Our Uber driver dropped me and Louis off at the E. Barrett Prettyman Federal Courthouse on Constitution Avenue at 8:44 a.m. We got through security screening quickly and headed to the cafeteria for coffee and yogurt. Anne came in a few minutes later and joined us at our table. I think we all felt pretty excited to be there.
People use the word “awesome” to describe all kinds of things, some of which don’t really deserve that adjective. To me, walking the halls and approaching Courtroom 31 where we were about to hear John Flannery, representing the Patient Intervenors, and Anita Gay, Dept. of Justice attorney representing DEA, was pretty awesome. After all, this Court of Appeals is said by many to be the second most influential court in the United States … second only to the Supreme Court.
The gentleman guarding the door into the courtroom seemed a bit surprised to see us. I think everyone else in attendance was an attorney or a law clerk. I guess they don’t get many spectators at these events. We were all dressed appropriately but we probably didn’t look like attorneys. The gentleman at the door asked us to turn off our phones and show him that they were turned off (airplane mode was not acceptable) and told us where not to sit. We complied with his instructions and told him we were Mr. Flannery’s clients and that he told us we should sit behind him. Now satisfied, the gentleman motioned for us to enter.
The courtroom was surprisingly small, but again I guess not many spectators. The picture that was posted on the Court’s website along with the live audio feed of the session, and later the recording, looked exactly like the room we were in so I’m guessing it was the one in the picture.
Exactly why had we come to Court on Tuesday, January 23, 2024? The purpose of this Appeals Court session was for a 3-judge panel to hear oral arguments from our attorney, John P. Flannery, and the Dept. of Justice attorney, Anita Gay. Mr. Flannery had told us to expect the session to be very short, and that there would be no witnesses, just the 2 attorneys giving short statements and responding to any questions the judges may have had. We were told it was unlikely that the Court would issue a decision on the spot, so we were not expecting to learn the outcome during the session.
After Louis’ pain specialist, David Bockoff, had his DEA registration suspended on the spot with no notice on Oct 25, 2022, we – a group of Dr. Bockoff’s patients and their spouses/families – decided we had had enough of being yanked around by DEA. For many of us, this was not the first time we had lost our doctor due to DEA actions. We hired John Flannery and he recommended that we file a Motion to Intervene in the case of DEA vs. David Bockoff. We did so, and, as expected, the DEA Administrative Law Judge (ALJ) denied our motion. The next step available to us was to appeal the ALJ’s decision, so we did, and that’s what this session was about. There is legal precedent for “interested persons” to make a Motion to Intervene in a case in which they otherwise can’t participate. Many have said it’s probably the first time a group of patients have gotten together and tried to fight back against DEA.
Some have asked how they can join our lawsuit. It’s not exactly a lawsuit … it’s an effort by a group of people to intervene in a DEA case against Dr. Bockoff. All of the involved patients were Dr. Bockoff’s patients and were affected when his DEA registration was suddenly suspended with no warning. We’re trying to make the case that we have a substantial interest in the outcome of DEA vs. David Bockoff and should therefore be able to have our attorney speak for us in the matter.
Our goal here is to persuade the Court of Appeals to approve our Motion to Intervene and give us the opportunity for our attorney to speak on our behalf and participate fully in any further hearings involving DEA vs Dr. Bockoff. The way DEA runs the Administrative Law Court leaves patients with no voice in the situation, when their doctor is cut off without warning. The specific relief sought by Mr. Flannery on our behalf is that the Appeals Court throw out the DEA ALJ’s decision denying our Motion to Intervene, approve our Motion, and tell DEA to hold their hearing about Dr. Bockoff’s situation all over again with Mr. Flannery having full participation to represent our interests in what happens to Dr. Bockoff.
We hope the Appeals Court will decide in our favor. If they don’t, we intend to continue our pursuit of justice and we hope that others will try this or other legal efforts. It has become obvious to us that patients and families need to stand up and get involved to try to help their doctors who are being unfairly charged. If successful, this could help the doctor and his or her patients. Our effort to intervene started out as Rebecca Snyder vs. Merrick Garland. Sadly, in June 2023, Rebecca Snyder passed away while we were waiting for our day in court. This case is now referred to as Case#: 23-1007 Gemi Spaulding vs. Merrick Garland. Rebecca Snyder and Gemi Spaulding were both patients of Dr. Bockoff, as were Louis Ogden, Anne Fuqua, and the 5 other Patient Intervenors actively seeking justice.
So what did the judges and the attorneys talk about? Who are the judges anyway? I’ll start by clarifying the composition of the panel. Some who listened to the live feed or recording mistakenly thought they were hearing one female voice from the bench and concluded that there was just one judge. The first judge to speak was Judge Karen Henderson who called on John Flannery at the beginning. She presided but didn’t say much at all, leaving the questioning to Judge Neomi Rao and Judge Cornelia Pillard. If you are interested, you can find information about all the Appeals Court Judges on the Court website at cadc.uscourts.gov.
John Flannery kindly provided us a summary about the session, so here’s the bottom line up front: “We argued to a 3-judge panel of the DC Court of Appeals that chronic pain patients have a right to intervene in a closed DEA proceeding that cut off their pain medications; DEA argued we didn’t have that right.” That’s it in a nutshell.
The substance of the conversation that took place among Judge Rao, Judge Pillard, and the attorneys touched on a number of key legal concepts. Judge Rao asked the first question a couple of minutes into Mr. Flannery’s presentation.
She was concerned about finality and stated the point that finality is jurisdictional … that is, the Court of Appeals can only rule on final decisions of lower courts. We had learned earlier in this legal journey that decisions made by the DEA ALJ are technically recommended decisions until the DEA Administrator, presently Anne Milgram, approves them, and as far as we know, she has not taken any action on the ALJ’s Bockoff decision. But, of course, being excluded from the flow of information as interested persons seeking to intervene but not having been approved to intervene, how can we know for sure? John Flannery argued that since our Motion to Intervene had been denied by the ALJ soon after we filed in November 2022, the Patient Intervenors were effectively and entirely shut out of the closed official DEA process with no access to the particulars about the ongoing Bockoff case, so no other remedy was really available to us except this appeal. Judge Pillard entered into this discussion at some point and the subsequent conversation touched on the issues of finality (was there a final decision or not?), jurisdiction (does the Appeals Court have jurisdiction to render a decision in our case?), the matter of standing vs. access to intervene, whether other remedies were available to us on our path seeking to intervene, and to what extent was information about the DEA proceedings open to the public versus sealed? The only knowledge we have had regarding the progress of Dr. Bockoff’s case has been an occasional bit of information received unofficially from someone in the know.
As the informal spokesperson for the Intervenors, I have worked most closely with Mr. Flannery and have provided occasional updates to the group. However, I have done so and share my comments here with the following disclaimer: I am not an attorney and have no legal background. I have done my best to provide accurate updates to Dr. Bockoff’s patients and I do the same now for others who may read this article. I know there are many patients and advocates out there who are very interested in what’s happening with this case. If you don’t understand all this legal terminology, join the club, but be advised that you can learn a fair amount by spending 15 minutes googling on your phone.
I thank you for your interest in our case and for having the patience to read this. I will close by telling you a couple of things we’ve observed along the way and by sharing John Flannery’s closing statement.
Louis and I have observed that the DEA administrative law process seems very biased against doctors and pain patients. Law-abiding citizens who have done nothing wrong, both doctors and patients, are treated by the process as though they are without a doubt drug-trafficking criminals. How can it be other than biased when the investigators, the prosecutors, and the judge are all part of the same closed process? Unless you find a way to take your concerns outside DEA to another element of our government with some kind of authority to make impartial decisions, for example, the Federal Appeals Courts, or the ability to act to improve our situation in some way, for example, the US Congress or the President of the United States, things are not likely to change for the better … at least not anytime soon.
Some have asked why we traveled to D.C. for a 30-minute meeting in which no decision was likely to be made. My answer: because in my experience as an advocate, sometimes you just need to show up … show up and keep showing up. It was our way of making a silent statement. It’s a small thing that can have an impact. Some have said to me that the audio of the meeting left them feeling pessimistic about the pending decision. I don’t feel that way. It’s my view that it could go either way. The judges asked several questions that pointed to the possibility of a favorable decision. No matter how things turn out at this step, we don’t plan to give up. I do believe we have made several small gains. The Appeals Court accepted our appeal. The Appeals Court ordered oral arguments so they could ask questions and hear more from the attorneys. We were able to go to this high court and hear our issues being discussed. These are small gains, but positive steps in the right direction. Patients, spouses, family members, advocates, doctors, pharmacists: All need to engage now in our common defense. If we can find a way to try to make a difference, so can you.
John Flannery’s closing thoughts:
The final thing I would say your honor is that Dr. Bockoff is a doctor who heals. He does not deal. And that we are, by upholding the practice of this ALJ, we are sanctioning the disregard of patients who suffer, I mean really physically suffer, because of these proceedings that hide in the shadows and do what they may. Thank you for your time. I appreciate it and my clients do too.
Barb was diagnosed with DDD (degenerative disk disease) decades ago. Over the last year, her lower back pain kept increasing. Her pain clinic increased the basal rate of her implanted Morphine pump twice at 15% each time. Didn’t help much. MRI or CAT scan showed that L3 and L4 disks had “chipped”, shed, or something that caused one of her nerves to have impinged, causing increased/progressive pain in her lower back and down her left leg.
She kept hoping that there would be some “miracle” and things would improve. She finally admitted that surgery was her only option. I reached out ( via his pt portal ) to the surgeon who did an excellent job with my partial knee last year, and asked “Do you know a neurosurgeon that is worth their salt”? Those of us in healthcare, understand that all are generically educated and licensed, but not all are generically competent!
I talked to Barb’s surgeon after all was said & done, and he did not encounter anything unexpected, apparently, the MRI or CAT scan was extremely accurate. Back surgery is always a “crap shoot”, outcomes can result in the pt having no pain improvement, pain being worse or the pain being reduced to some degree. In reality, it can take up to 3 months to make a decision on how well the surgery went.
I reviewed Barb’s post-procedure pain meds prescribed with her nurse and it appeared that the surgeon prescribed ample opioids that should at least put a “significant dent” in her surgery-induced pain.
In the next couple of days, I become a 24/7 caregiver for an unknown length of time.
In Poland, the saying is associated with the criticism of the justice system under totalitarian (in particular, communist) regimes.[2][18][19]: 7 [7]: 179 [10] The saying has been described as “one of the most popular, depressing and representative sayings about the general powerlessness of people faced with unjust legal systems, characteristic to all countries governed by the communists”.[19]: 7
Such abuse of power, exemplified by this saying, has been explicitly discussed in the context of military justice in the Stalinist era in Poland (1948–1956), particularly concerning the court’s ability to determine the legal classifications of the defendant’s actions, based on very vague and generic legal terminology. During that time, in several cases, the courts considered multiple competing classifications and often sided with the prosecution in defaulting to the one that would invoke the harshest punishments.[20]: 269–271
The expression is widely used in Putin-era modern Russia to describe the fabrication of criminal cases by police and judges.
Newly released documents show that the US Federal Government has allowed insurance companies and unvetted AIs to target physicians who treat pain and addiction for prosecution. As crazy as this sounds, in 2017, Attorney General Jeff Sessions became convinced that the opioid crisis was not the fault of cartels smuggling fentanyl across porous American checkpoints. And it wasn’t due to pharmaceutical companies corrupting drug approval officials and DEA administrators by hiring them as consultants after making decisions in the company’s favor. No. The opioid crisis was caused by American physicians coddling pain patients and addicts. But reviewing all the actions of tens of thousands of physicians would take literally hundreds of years and thousands of agents, so the government paid for the development of a secret weapon. It hired a private company to create a new Artificial Intelligence that would be trained to look for actions taken by physicians that the DEA deemed “illegitimate.” The theory was that artificial intelligence-enforced precrime predictive models would provide a focused criminal deterrence in the practice of medicine. There is a strong incentive in this industry to err on the side of labeling activity as illegal; indeed, “bounties” can be paid to persons and companies identifying FWA. This company’s main selling point was the use of innovative data analysis, including data mining and predictive analytics, to identify patterns and improve operational efficiencies. “Dynamic Dashboards” were created to focus on what the AI programmers perceived to be criminal behavior. AI decision-making is only as good as the data and parameters it is fed. Insurance companies told the AI that many treatments were “medically unnecessary” and, therefore, indicative of fraud. The DEA then provided its interpretation of actions it thought showed criminal medical practice, including the number of patients seen and prescriptions written per month, particularly the number of Schedule II prescriptions. The distance a patient drove, whether or not the doctor’s office accepted cash payments, and the prescribing of a “trinity” of drugs, including a narcotic with a sedative, muscle relaxer, or even, amazingly, an antibiotic. These were all seen as indicative of criminal behavior. Ignoring the fact that medical textbooks, continuing medical education (CME), and evidence-based practice say otherwise. The CDC says that treatment for pain can continue even if a patient has been diagnosed with addiction. “Although identification of an opioid use disorder can alter the expected benefits and risks of opioid therapy for pain, patients with co-occurring pain and opioid use disorder require ongoing pain management that maximizes benefits relative to risks.” The AI also uses claims, encounters, pharmacy invoices, beneficiary enrollment files, state licensing board information, property records of targeted healthcare physicians, ownership/asset and financial filings of targeted healthcare physicians, and court records, as well as other custom data in its decision-making algorithm. Chief Executive Officer Ronald G. Forsythe said, “We have combined the book smarts’ of AI and our analysts with the “street smarts” of our investigators to create one beast of a program integrity tool. Unleash the beast!” And unleash it they did, becoming, in effect, a private police force. Physicians began to see their colleague’s clinic doors kicked down and watched as these doctors were pilloried in the media for prescribing “Millions” of morphine milligram dose equivalents!” which would then be conflated with millions of pills. No matter that this was a number accumulated over several years to sometimes thousands of patients and that palliative, cancer, sickle cell, and HIV/AIDs patients had not been excluded from the numbers. Once in court, “experts” cherry-picked by the prosecutors for their extreme views made conviction easy. How can we expect randomly chosen lay people without the benefit of any medical education to sort this out? Doctors were convicted by the thousands, and tens of thousands of pain and addiction patients could not find a physician anywhere who was brave enough to treat them. These patients were at extreme risk of either killing themselves, as many did, or going to the streets to try to buy their regular pain medications. Finding instead, fake hydrocodone and oxycodone tablets were laced with fentanyl, and they died by the thousands. American citizens have the right to receive compassionate and evidence-based healthcare, and physicians have the right to treat their patients in accordance with their education, training, and experience, without being prosecuted for violating the opinions of some healthcare executive or DEA agent. No matter what the AI “beast” says.
