Jewish World Review April 16, 2004 /26 Nissan 5764
Drs. Michael A. Glueck & Robert J. Cihak
Free or not free to treat pain
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.
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
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
Now the government is driving doctors away from treating pain and other
In an unfree society, the law coerces citizens and creates criminals. Law
becomes a form of terrorism. Savage a few people, intimidate and control
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.
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