U.S.A. v Dr. Rosa Martinez goes to Jury – Martinez Wins; Alex DeLuca; War on Doctors/Pain Crisis blog of the Pain Relief Network (PRN); 2007-12-09. Revised: 2009/08/13.
The Chilling Effect – Pain Patients in the War on Drugs
PRN video documentary by Siobhan Reynolds
I wrote this article several days ago and held off till the verdict came in, which it did, today. Briefly: Not Guilty on three of the five drug charges; the jury hung on the remaining two drug charges regarding one patient. Given the hideously uneven playing field of federal drug law as applied to physicians, this counts as a WIN for pain management in the Eastern District of Washington, and for Counselor J.J. Sandlin for the defense, and for the Pain Relief Network, though I am not yet clear on exactly what happens to Dr. Martinez next.
An article published Friday Dec. 7th in the Yakima Herald by Leah Beth Ward (Fraud Case Against Doctor goes to Jury offers the barest outline of the trial, conveying no sense of the national importance of this case. Even when the history of the case is sketched, for example in paragraph 2 (excerpted below), no dots are connected by the writer, leaving the reader unenlightened; puzzled at best.
The Pain Relief Network has been more than a little involved. I am the defense medical expert witness in this current Federal case, and gave my testimony in the trial all day Wednesday continuing into Thursday morning, December 6th, 2007. Another physician (affiliated with PRN as I was at the time) is defense medical expert witness and consultant for Dr. Martinez in the State of Washington Medical Assurance Commission’s (aka Medical Board) hearings, investigation, and disciplining of Dr. Martinez, which proceedings are ongoing.
“The [current Federal] trial before U.S. District Judge Fred Van Sickle in Yakima started 10 days ago. Martinez, who operates a private practice on West Spruce Street, was indicted a year ago by a grand jury in Spokane. She remains licensed to practice medicine while she separately appeals a proposed suspension of her license by the [State of Washington] Medical Quality Assurance Commission for unprofessional conduct. One restriction on her license is that she cannot prescribe narcotics. … [Both the prosecution and the defense medical] expert witnesses described her medical charts – upon which billings are based – as complete.”
So Dr. Martinez has been under the State Medical Board microscope for years, mostly involving her CPT coding (Medicare, Medicaid billing practices) but she has also had her opioid therapy for chronic pain prescribing practices investigated and judged by the State of Washington. Her due process in those State proceedings continues while Dr. Martinez legally challenges the restrictions on her ongoing, State licensed, medical practice. The Federal Indictment covers the identical issues: CPT coding, Physician Assistant supervision regulations, and chronic opioid analgesic therapy. In fact, some of the same medical records and almost verbatim charges appear again (and at the same time!) now in Federal Court as were and are the basis of the State’s restrictions on her, and her appeal-in-progress of same.
And somehow, technically, apparently, this is not Double Jeopardy; but of course it is exactly that on it’s face. Dr. Martinez is being tried twice on an virtually identical charges involving the same records and dates, concurrently, by State and Federal levels of government, respectively.
Put another way, the State of Washington (the right to license and regulate professional medical practice is reserved to the States under the U.S. Constitution) is entirely aware of Dr. Martinez’ billing and prescribing practices and is engaged with her in legal negotiations regarding them. Given that, on what grounds and by what right and towards what end are Federal prosecutors now bringing criminal Indictments for these exact same billing and prescribing practices?
I believe that U.S.A. v Martinez is an especially important case, because Dr. Martinez is very clearly a traditional family physician working with a socio-economically marginal patient population, who treated chronic pain as it arose in this practice, prescribing common opioid medications primarily indicated for this use, in moderate dosages and to good clinical effect. And all of this very clearly within the scope of her usual (and again, ordinary) legitimate medical practice. Her patients improved under her care, and deteriorated when those beneficial, bona fide, long term doctor-patient relationships were interfered with by the government.
By targeting banal and ordinary medical practice, the Federal government gets the maximal chilling effect bang for their buck. The message of this case to physicians nationwide couldn’t be clearer – no physician prescribing opioid analgesic therapy for chronic pain is safe, even if you are obviously not a “pill mill,” obviously are a professional M.D., and are not even a “high dose prescriber” chronic pain doctor.
In my review of Dr. Martinez’ medical records, I found that the care of her patients falls well within the accepted standard of care for both pain management and general medicine. These charts are thorough and well organized, demonstrating active attention to the symptoms and signs presented by the patient. Routine health maintenance interventions are completed even in complicated, acute cases. Medication list, lab reports and radiological reports, and reports from consulting physicians and admitting hospitals are clearly sectioned and labeled and initialed by Dr. Martinez, and are complete.
Dr. Martinez charts like the experienced physician she is, actively eliciting relevant symptomatology, emphasizing only the pertinent negatives on physical exam, and updating the problem list and adjusting the therapeutic plan on every visit. Nowhere in any of these records is there even a suggestion that Dr. Martinez ever acted in other than an entirely professional and ethical medical manner, in good faith, and that she even for an instant ever considered that was she was doing was anything other than practicing good medicine in her formal medical office.
And nothing the prosecution’s medical expert, Dr. Irving, testified to contradicts anything stated in the previous two paragraphs about Dr. Martinez’ patient encounters or medical record charting.
There is no crime here, that I can see. At worst we have a physician who misunderstood complex billing regulations and whose opioid prescribing practices, while being entirely within the medical (aka textbook aka reasonable physician) standard of care for the treatment of chronic pain, are being described as “criminal” by the Federal government, backed by a prosecution medical expert who mostly testified to the standard of care for addiction treatment. And a (surely confused) medically lay Jury now sits in judgment of some 20 felony charges against Dr. Martinez, including Counts 14 – 20 which are the drug crimes she is accused of intentionally committing while disguised as a legitimate professional doctor involved in entirely ordinary, ongoing, and duly recorded doctor-patient relationships. [See also: The Bounds of Medical Practice, and the Standard of Care, and, The Distortion of Pain Medicine]
This is insane. This is also just business as usual in drug war prosecutions of pain-treating physicians, this is just the way they all mostly go.
This is where things [stood as of 12/09/2007] (see Note, above). I believe that the defense requested and was granted the very important “good-faith jury instruction“, but I am not entirely sure of this, nor do I yet have any information on how vigorously Federal prosecutor Mr. Harrington opposed this instruction. I do not yet know what other instructions the Jury was given before beginning deliberations, and I haven’t yet read or heard anything about prosecution and defense Closing Arguments.
All to be discussed, dear fellow students of the War on Doctors. I think this will be a worthy and enlightening case for us to consider as it wraps up and the relevant documents become available.