Emails Led to My Convictions

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Emails Led to My Convictions

Xiulu Ruan, MD

September 12, 2019

On July 13, 2015, less than two months after the raid of Physicians’ Pain Specialists of Alabama, PC (PPSA) and the arrest of Or. Couch and myself, the British Medical Journal (BMJ) published an article entitled “Accused Alabama doctors each wrote an opioid prescription every four minutes on average.” The author, Mr. Owen Dyer, wrote: “The two were among 288 people, including 22 doctors and pharmacists, who were charged in Arkansas, Louisiana, Mississippi, and Alabama during the 15 month ‘Operation Pilluted,’ which targeted prescription drug misuse across the U.S. South… In 2014 Ruan wrote 34,883 prescriptions for controlled substances, which would represent more than one every four minutes if he worked 40 hours per week.” At the end of his article Mr. Dyer put on his finishing touch by citing some of my email passages (out of context) as presumed evidence of my “crime,” namely the consciousness of guilt, as follows:

“Email messages entered as evidence seem to show that the doctors suspected that the FBI was closing in and tried to adjust the regimen at the 11th hour. They expected increased scrutiny after Alabama was declared the state with the most opioid prescriptions: 143 per 100 citizens each year… ‘Now that everyone in the nation knows that AL state prescribes the most pain killers in the nation, we will need to adjust our regimen a bit,’ Ruan wrote to Couch in July 2014. ‘We would rather be careful than sorry.’ Three months later Ruan suggested to Couch that they restructure their business model in case something bad happens down the road… ‘Just two weeks ago, you mentioned to me that we were supposed to be raided by the FBI, which got you concerned, but thank God it did not happen,’ Ruan wrote. ‘Every practice can get into trouble when there are opportunities for whistleblowers to gain.'”

If such inculpatory email messages could be seen in the BMJ, one of the most authoritative and prestigious medical journals in the world, then we can imagine that they would easily be presented elsewhere in all sorts of public media outlets. With this want to quickly point out one error: The title of the article is misleading because of the author’s misconception that all controlled medications are opioids. This mistake probably stemmed from the ignorance of the prosecutors of our case, specifically considering we have seen such a hyperbole of “an opioid prescription every four minute” in many local, regional, and even national reports in the U.S. Possibly, Mr. Dyer did not come up with this with his own ignorance, but he simply copied it from the description of the prosecutors in this case. The problem is that many medications utilized by PPSA were controlled, but not opioids. Examples of uses include pregabalin (brand name Lyrica, Schedule V) for nerve pain, fibromyalgia, seizure; zolpidem (brand name Ambien, Schedule IV) for insomnia; eszopiclone (brand name Lunesta, Schedule IV) for insomnia; modafinil (brand name Provigil, Schedule IV) for daytime sleepiness; and the list goes on and on. Clearly, the title of his article was based on a false and unverified assumption that all controlled medications prescribed by Dr. Couch and myself were opioids.

Although there are many other errors and misrepresentations in the above article, I will refrain from making additional comments on them as my focus here is on some of the most prejudicial emails used at trial by the prosecutors. My attorney Mr. Dennis Knizley made a comment during my trial saying that during his decades of practice as a criminal defense attorney, he had never known, let alone experienced, a case such as mine where email examination had become a major part of prosecutorial evidentiary presentation. At trial, the government admitted that they had searched my Yahoo email account and had gone through 143,325 emails (what an effort!), among which only a few dozen were shown to the jury (Tr. 1/23/17 p. 2095).

For years I had used email as my principal means of communication, especially in the professional and business realm. In this paper I have selected the most weighty ones used at my trial, i.e. those being alleged to be the most probative of my “crime”. But, before jumping to them right away, I plan to first lay down a foundation with regard to common understanding and attitude .of using opioid(s) for the treatment of chronic pain during the past two-and-a-half decades, during which time I had received my clinical training and practiced as a pain specialist. I believe that without a proper foundation, one cannot rationally understand the complex issue of using opioid analgesia for the treatment of chronic pain.

As a chronic pain patient myself, who had suffered from lower back pain and had had troubles in getting satisfactory pain relief despite having tried a lot of therapies under different doctors, I made the decision to become a pain management specialist so as to better help myself and others in pain. I received my physical medicine and rehabilitation residency training from 1999 to 2002 in the Medical College of Wisconsin Affiliated Hospitals, Milwaukee, Wisconsin, and then my pain management fellowship training from 2002 to 2003 in the Department of Anesthesiology, University of Michigan Medical Center, Ann Arbor, Michigan. During my subsequent private practice as an interventional pain specialist, I had not only kept abreast with my clinical knowledge and skills but strived to expand them, aiming to achieve more board certifications in addition to my 2003 primary board certification in Physical Medicine & Rehabilitation. I therefore worked on and added certification in Pain Medicine and Electrodiagnostic Medicine, as well as a subspecialty board certificate in Pain Management, all in 2005. I also received board certification in lnterventional Pain Management in 2007 (by the American Board of lnterventional Pain Physicians), that of lnterventional Pain Practice in 2007 (by the World Institute of Pain}, and that of Addiction Medicine in 2010, plus a subspecialty board certificate of Neuromuscular Medicine in 2011, etc. In addition, I had been actively involved in conducting clinical research and had published dozens of articles in prestigious medical journals regarding pain medicine, interventional pain medicine, addiction medicine, pharmacology, opioid therapy, as well as many other areas.

During the past two and half decades, specifically from 1990 to 2015 (I was indicted in 2015), there were numerous medical research publications showing that pain was undertreated in the U.S. and that the risk of true addiction to opioid therapy in chronic pain patients as a result of opioid therapy was rather low. Further, there was actually increasing pressure from the government agencies, federal and state medical boards, various pain management societies, as well as various pain advocate groups, demanding compassionate pain care to those patients suffering from intractable pain. To give an overview on the evolution of using opioid therapy for the treatment of chronic pain, I will first cite some passages from an insightful essay entitled “Treating Pain v. Reducing Drug Diversion & Abuse: Recalibrating the Balance in Our Drug Control Laws And Policies,” written by Professor Diane E. Hoffmann in 2008. Ms. Hoffmann is a Harvard Law School graduate, currently serving as the Director of the Law and Health Care Program and is the Jacob A. France Professor of Health Care Law, the Francis King Carey School of Law, University of Maryland. In the said essay, specifically in the section of “The Evolution of the Use of Opioids for Treatment of Chronic Pain,” Professor Hoffmann writes:

“It was not until 1990, however, when the World Health Organization published guidelines on cancer pain treatment, that the standard was more widely acknowledged. Subsequently, in 1992, the American Pain Society published “Principles on Analgesic Medication for Acute Pain and Cancer Pain,” and in 1994 the Agency for Health Care Policy and Research [now the Agency for Healthcare Research and Quality (AHRQ)] established that opioids, in combination with other medications, were the appropriate treatment for chronic malignant pain.

In 1997, for the first time professional groups addressed guidelines for the treatment of chronic nonmalignant pain. The American Academy of Pain Medicine and the American Pain Society jointly issued a statement entitled ‘The Use of Opioids for the Treatment of Chronic Pain’ (also referred as the ‘Consensus Statement’). The Consensus Statement ‘provided guidance for the regulatory agencies for determining the accepted principles of practice for the use of opioids for chronic patients.’

In 1998, the Federation of State Medical Boards (FSMB} then issued ‘Model Guidelines for the Use of Controlled Substances for the Treatment of Pain’… Many state medical boards adopted policies consistent with the FSMB’s Model Guidelines. While the 1990s became a decade in which the medical profession began to recognize the benefits of opioids for the treatment of chronic pain and developed guidelines for their use, it was also a decade in which great public attention was brought to bear on the fact that pain, both cancer-related and non-malignant chronic pain, was being woefully undertreated in the United States. Between 1999 and 2004, in line with the ‘sea change’ in attitudes toward pain management, two state medical boards disciplined physicians for failure to adequately prescribe pain medication for their patients. On the heels of the second disciplinary action, in 2004, the FSMB provided physicians with an additional incentive to adequately treat pain by updating its Guidelines and issuing a ‘Model Policy for the Use of Controlled Substances for the Treatment of Pain”‘ (p. 267-69}.

FSMB, a national non-profit organization representing all fifty state medical boards in the United States, assists state medical boards as they go about their mandate of protecting the public’s health, safety, and welfare. The stated mission of FSMB is to promote research and education to improve the quality of healthcare through effective physician licensure and regulation. The recommendations of the FSMB Model Guidelines have had a huge impact on state medical boards in general and pain management physicians in particular. Both Texas and California first passed an “Intractable Pain Act” in the same year, with the motivation being to make opioids available to pain patients while protecting prescribing physicians from regulatory disciplining. The definition of “Intractable Pain” was defined in the legislation of both these states. California’s Intractable Pain Law and Patient’s Bill of Rights provided safeguards for the patient and protection for the physician. Many other states followed the “California Model” by passing their own intractable pain laws. For example, the following states, as relates these state laws were cited from the the journal Practical Pain Management (last updated on December 28, 2011):

Arkansas: “No disciplinary action by the State Medical Board solely for prescribing dangerous or controlled drugs for the relief of chronic intractable pain.”

Colorado: “Physicians who prescribed opiates for intractable pain should not fear disciplinary action from any enforcement or regulatory agency in Colorado if they use sound clinical judgment and care for their patients according to the principles of sound professional practice

Florida: “Notwithstanding any other provision of law, a physician may prescribe or administer any controlled substance under Schedules 11-V… to a person for the treatment of intractable pain…”

Louisiana: “Intractable Pain is a chronic pain state in which the cause of pain cannot be eliminated or successfully treated without the use of controlled substance therapy…”

Missouri: “Notwithstanding any other provision of law to the contrary, a physician may prescribe, administer, or dispense controlled substances for a therapeutic purpose to a person diagnosed and treated by a physician for a condition resulting in intractable pain…No physician should be subject to disciplinary action by the board solely for prescribing, administering or dispensing controlled substances when prescribed, administered or dispensed…

Montana: “The Board seeks to assure that no Montanan requiring narcotics for pain relief is denied them because of a physician’s real or perceived fear that the Board of Medical Examiners will take disciplinary action based on the use of narcotics to relieve pain.”

Nevada: “A physician is not subject to disciplinary action solely for prescribing or administering to a patient under his care.”

Ohio: “…a physician who treats intractable pain by managing it with dangerous drugs is not subject to disciplinary action by the board under section 4371.22 of the revised code solely because the physician treated the intractable pain with dangerous drugs.

Oregon: “A physician shall not be subject to disciplinary action by the Board of Medical Examiners for prescribing or administering controlled substances in the course of treatment of a person for intractable pain with the goal of controlling the patient’s pain for the duration of pain.”

Texas: “Notwithstanding any other provision of law, a physician may prescribe or administer dangerous drugs or controlled substances to a person in the course of physician’s treatment of a person for intractable pain…No hospital or health care facility may forbid or restrict the use of dangerous or controlled substances when prescribed or administered by a physician having staff privileges at that hospital or health care facility for a person diagnosed and treated by a physician for intractable pain…No physician may be subject to disciplinary action by the board for prescribing or treatment …for intractable pain.”

West Virginia: “A physician shall not be subject to disciplinary actions by a licensing board or criminal punishment by the state for prescribing pain-relieving controlled substances…for intractable pain.

Furthermore, on October 31, 2000, the 106th Congress declared the first decade of the new millennium as the “Decade of Pain Control and Research” and passed H.R. 3244. President Bill Clinton signed this into a law to begin on January 1, 2001.

H.R. 3244 is the first step in stimulating further progress in pain research, education, and clinical management. This was the second congressionally declared medical decade, with the first being the “Decade of the Brain” in the 1990s (Valley Health System, 2016). It was hoped that public and clinical attention and funding for research would be focused on the serious and under-recognized public health crisis of chronic pain.

In 2001, as part of the national effort to address the widespread problem of underassessment and under-treatment of pain, the Joint Commission (formerly the Joint Commission on the Accreditation of Healthcare Organizations or JCAHO) Introduced standards for organizations to improve their care for patients in pain, requiring hospitals to make pain assessment routine and pain treatment a priority. JCAHO is a non-profit organization that “accredits and certifies nearly 21,000 healthcare organizations and programs in the United States.· It’s mission statement Is: “to continuously improve the safety and quality of care provided to the public through the provision of healthcare accreditation and related services that support the performance improvement in healthcare organizations.” A majority of state governments recognize JCAHO accreditation as a condition of licensure and for receiving the government programs such as Medicare and Medicaid reimbursements. Indubitably, to healthcare organizations and professionals, JCAHO represents the ultimate official authority.

In a JCAHO publication entitled “Pain Assessment and Management: An Organizational Approach” {Pain Assessment & Management) published in 2000, it states that there is a chronic pain epidemic and that chronic pain is undertreated. It further explains what have led to the under-treatment of pain: (1) inadequate knowledge of opioids pharmacology and pain therapy, (2) poor pain assessment practices, (3) unfounded concerns about regulatory oversight, and (4) fear of opioids side effects such as tolerance and addiction. Pain Assessment & Management points out that few physicians received adequate training in pain management in medical schools or during their residency and that “many healthcare professionals lack the knowledge and skills to manage pain effectively, and they fear the effects of treatment.” Ironically, a decade later, this problem remained unsolved despite the call from JCAHO for better pain care education of physicians. In 2011, Mezei and colleagues published their study entitled “Pain Education in North American Medical Schools” in the Journal of Pain. The authors find that there is severe lack of training in pain medicine. U.S. medical students        receive a median of seven hours of pain education; Canadian medical students receive a median of thirteen hours of pain education, in contrast to the median of seventy-five hours of pain education received by veterinarian school students in the U.S. (Mezei et al., 2011).

JCAHO strongly encouraged organizations to establish standards for recording and responding to patient pain reports and monitoring staff performance and compliance with those standards, so that physicians who did not agree with or follow that JCAHO standards faced the specter of poor performance evaluations. The now familiar pain scale was introduced, with patients being routinely asked to rate their pain. and pain became the fifth vital sign. Beginning in 1999, the Veteran’s Health Administration (VA) began routinely assessing pain as the fifth vital sign in every patient in VA hospitals. Interestingly, I started my residency training in the Dept. of Physical Medicine and Rehabilitation at Medical College of Wisconsin (MCW) in the summer of 1999, and Milwaukee VA Hospital has been one of the teaching hospitals that are affiliated with MCW. So I personally witnessed the impact of JCAHO’s new directive of routinely performing pain assessment on every patient in this government­ run hospital.

In 2007, Dr. Scott Fishman, an internationally recognized pain expert {quadruple board certified in Internal Medicine, Psychiatry, Pain Medicine, Hospice & Palliative Medicine, former Medical Director of Massachusetts General Hospital of Harvard Medical School, Professor of Anesthesiology and Pain Medicine, Chief of the Division of Pain Medicine, University of California at Davis, the former President of the American Academy of Pain Medicine. and the Chairman of the Board of the American Pain Foundation), published a book called “Responsible Opioid Prescribing: A Physician’s Guide” (ROP). Consistent with the core message in FSMB and JCAHO, ROP states: “the under-treatment of pain has been recognized as a public health crisis for decades. The cost of human suffering is immeasurable. Turning away patients in pain simply is not an option.” It further holds that undertreating pain would be officially disciplined whereas pain management physicians prescribing opioids for chronic pain would not be disciplined. ROP describes a case in which a physician was sued for “elder abuse’ and the jury awarded $1.5 million to the plaintiff as an example of physician that had been successfully sued for not treating pain aggressively. It cautions that “these legal precedents sound a warning that there are risks associated with under-treating.”

ROP was actually designed to be continuing medical education {CME) study material and was thus widely distributed among the fifty state medical boards and further among physicians. The FSMB website described the book as the “leading continuing medical education activity for prescribers of opioid medications” and has encouraged physicians to buy the book and participate in the CME. The 2014 Edition of “Responsible Opioid Prescribing: A Clinician’s Guide” has included new information of the influential Model Guidelines adopted by the FSMB in 2013. “This book provides sound advice aimed at helping physicians and other clinicians understand the magnitude of the problem and carefully manage opioid use while ensuring patients have access to needed medications,” said Janelle Rhyne, MD, MACP, the President of FSMB Foundation.

Subsequent to the publications of ROP in 2007, there came a plethora of clinical opioid treatment guidelines, for example those by the American Pain Society & the American Academy of Pain Medicine in 2009, those by the Departments of Veteran Affairs (VA) and Defense {DOD) in 2010, and those by the Federation of State Medical Boards (FSMB) in 2013, plus many others. All of these Guidelines advocated the use of opioids for the treatment of moderate to severe chronic pain in selected patients. For example, the 2013 FSMB Guidelines define inappropriate opioid analgesic prescribing as non-prescribing, inadequate prescribing, excessive prescribing, or continued prescribing despite the evidence of ineffectiveness.

In 2011, the prestigious Institute of Medicine (IOM) published its landmark report entitled “Relieving Pain in America: A Blueprint for the Transforming Prevention, Care, Education, and Research.” [Institute of Medicine (US), Committee on Advancing Pain Research, 2011] IOM (currently the National Academy of Medicine) is an independent, private, non-profit institution that works outside the government to provide objective advice on matters of science, technology, and health. Its mission statement is: to improve health for all by advancing science, accelerating health equity, and providing independent, authoritative, and trusted advice nationally and globally. This seminal report of IOM estimates that there are more than 100 million Americans who suffer from chronic pain – more than heart disease, diabetes, and cancer combined. It further acknowledges that pain has already become a public health problem. It states that pain is pervasive, costly, and largely undertreated; hence it calls for a cultural transformation in the country in the delivery of pain care, in conducting pain research, and in providing pain education to fulfill the gaps of inadequate pain care to millions of Americans suffering from chronic pain. The IOM report has had tremendous impact on raising the awareness that inadequate chronic pain control in the U.S. has become a public health problem. Furthermore, IOM is considered the most trustworthy scientific authority in the U.S. because it does not represent the special interest of the government, certain politicians, or the pharmaceutical industry.

Although the 2011 IOM report has been widely cited in numerous medical journals and reports, some special interest groups have challenged the accuracy of its data (especially the number of 100 million Americans). In 2014, Professor Victor Dzau (the newly appointed President of IOM, a world-renowned cardiologist from Harvard Medical School and a world-class clinical research scientist) and Professor Phillip Pizzo {former Dean of Stanford University Medical School) published a follow-up report in one of the most authoritative medical journals, namely JAMA ( the Journal of the American Medical Association). In this paper entitled “Relieving Pain in America: Insights form the Institute of Medicine Committee,” Professors Dzau and Pizzo once again restate that there are more than 100 million Americans suffering from chronic pain and that the number 100 million is a valid and conservative estimate, as it does not include soldiers, prisoners, children, or long-term care residents. (Dzau and Pizzo, 2014).

Chronic pain is pervasive in the elderly and the treatment of it is largely inadequate. A previous study by Teno and co­ workers, entitled “Persistent Pain in Nursing Home Residents” and published in JAMA, concluded that 40% of the 2.2 million nursing home residents in this country lived with ”moderate” to “excruciating” pain daily. (Teno et al., 2001). Shomaker and colleagues published their study called “Pain Prevalence and Treatment Patterns in the U.S. Children’s Hospitals” in the journal Hospital Pediatrics and showed that hospitalized children experience significant pain despite improved efforts (Shomaker et al., 2015).

Breivik and colleagues published their research work entitled “Survey of Chronic Pain in Europe: Prevalence, Impact of Daily Life, and Treatment” in The European Journal of Pain. Their study included 15 European countries and Israel and found that although 19% of European adults suffered from moderate to severe chronic pain, only 2% were treated by pain management specialists; and 40% of the pain patients were inadequately treated.

Chronic pain is also prevalent in developing countries. Jackson and co-workers published their research investigation entitled” Prevalence of Chronic Pain in Low-Income and Middle-Income Countries: a Systemic Review and Meta-Analysis” in one of the most prestigious medical journals of the world, The Lancet. The authors studied the prevalence and associations of chronic pain in 28 low-income and middle-income countries and found that the prevalence of any type of chronic pain was 33% in the general population, 56% in the elderly population, and 35% in workers. {Jackson et al., 2015)

As a matter of fact, chronic pain is the most common condition that negatively affects people’s lives at a global level.

Research studies have repeatedly shown this to be the case. For example, Vos and co-workers conducted a mega study in assessing the global disease burden. They looked at the incidence, prevalence, and years lived with disability for 301 acute and chronic diseases and injuries in 188 countries. In their study, also published in The Lancet (Vos et al., 2015), they found that lower back pain was the leading cause of disability. In 2016, this study was further expanded by Vos et al., a collaboration of over 630 researchers from all over the world, and entitled “Global, Regional, and National Incidence, and Years lived With Disabilities for 310 Diseases and Injuries, 1990-2015: A Systemic Analysis for the Global Burden of Diseases Study (GBD}, 2015,” once again published in The Lancet. This updated mega study shows that lower back pain and neck pain are the leading global cause of disability in most countries (Vos et al., 2016). This global study by Vos et al. demonstrates that pain is the­ number one cause of disability in both the developed and developing countries. It also indirectly supports the IOM report that in America, chronic pain is pervasive and the under-treatment of chronic pain is a public health problem, as were repeatedly emphasized in the IOM report, as well as similarly stressed by the JCAHO and FSMB.

So, on the one hand, as we see, there was an urgent call for compassionate pain care to be delivered to patients suffering from debilitating chronic pain, and pain management physicians were strongly encouraged, assured, and even made obligated to offer opioid therapy to chronic pain patients suffering from intractable pain. Many national pain societies, for example the American Academy of Pain Medicine and the American Pain Society, consider providing patients with compassionate pain care a moral imperative of pain physicians and treating pain and suffering part of our covenant with our patients. But, on the other hand, something of a horrible political nature was developing. Following the critical rebuke of the Drug Enforcement Administration (DEA) by the Congress in 1999 that there was no measurable proof that illegal drug supply and the usage in the U.S. had declined under the DEA’s watch, the DEA switched its major task force from initially targeting black market drugs (such as heroin, cocaine, crack cocaine, ecstasy, and marijuana) to prescription opioids. Thus pain management physicians were placed on the same footing with drug kingpins or drug dealers. In his book entitled “Three Felonies a Day: How the Feds Target the Innocent,” published in 2008, attorney Harvey Silverglate, a Harvard Law School graduate and a nationally known expert in criminal and civil defense, explains how such criminal prosecution against physicians were conducted:

“Instead of achieving a medically-rooted balance, the Feds drew an arbitrary line between what they believed to be the appropriate medical administration of pain-killing drugs versus ‘drug dealing’ by physicians. Worse, the regulatory language made it virtually impossible for even the most responsible pain specialist to discern when he or she crossed the line into an area the DEA would consider akin to ‘street dealing”‘ (p. 47).

In his book entitled,”Pain Control and Drug Policy” published in 2010, Guy B. Faguet, MD, a specialist in Hematology/Oncology, discusses how the DEA infringes on the practice of medicine:

“The DEA has introduced arbitrary and pliable rules of evidence to secure convictions. It includes intentionally blurring the boundary between ‘the scope of legitimate practice’ and what it arbitrarily considers ‘beyond the bounds of medical practice’ and applying unjustifiably aggressive investigative and prosecutorial tactics, including invoking the forfeiture law that effectively ruins targeted physicians and doing so at the pretrial stage. This climate of intimidation and of uncertainty, where the presumption of innocence is not assured, has frightened many physicians out of pain management” (p. 102).

Charles F. von Gunten, MD, PhD, the Editor-in-Chief of the Journal of Palliative Medicine, passionately shares his opinion about the swing of the opioid pendulum and the chilling effect of the prosecution of physicians who prescribe opioid analgesia to their chronic pain patients in the Journal of Palliative Medicine:

“During my professional life as a physician, I have seen the pendulum of attitudes about the role of opioids for treating pain swing its full arc and back again. I only graduated from medical school in 1988…But now, a generation has passed. The newspapers are full of stories of the number of deaths from prescription opioids rising precipitously. It seems to me they are making the same mistake – looking at those abusing the drugs and falsely imputing causation: the drugs caused the addiction…The politicians are in a hurry to be seen to be ‘doing something’ and new laws and restrictions on prescribing are multiplying. I see the chilling effect on all prescribers every day. The meta-message to physicians is clear – be very afraid if you prescribe any opioids to anybody or you will cause them to be an addict and die. Better to let the patient suffer than be suspected of causing a rise in the number of addicts and opioid-related deaths. The pendulum is hurtling back to the place it had in 1940” (von Gunten, Charles, 2016).

In retrospect, the medical community has come to understand that the government’s policy on the use of opioids to treat chronic pain is based on political, social, and economical preferences, rather than on science, medicine, or patients’ wellbeing. There is no objective standard whatsoever; everything is arbitrary, which leads to manipulation for political, official, or personal gain. Any standard that is advocated can swing wildly and even completely reverse at any moment. Is it any wonder that physicians, especially pain management physicians in this country, feel that they have been fooled, misled, entrapped, and sacrificed? Indeed it is under such a perilous environment that physicians in this nation have managed to practice medicine. My own medical career here in the U.S. began in 1998 (when I began my medical internship) and ended in 2015 (when our practice was raided and forced to shut down). I was indicted, arrested, and charged with alleged conspiracies to dispense controlled substances outside the usual course of professional practice and to commit healthcare fraud. The span of my medical career partly overlapped the swing of the opioid pendulum in this country. The sad truth is that in medical school, during our training in internship, residency, and even fellowship, we were never educated on how to deal with or survive within such a hostile environment created by the government. As pain physicians we were taught that as long as we played by the book, followed proper practice guidelines, strived to improve our knowledge and skills, and always treated our patients with compassion and dignity — just as various state medical boards assured, the government would not deliberately find trouble with us, let alone criminalize us.

What this boils down to is: How closely should physicians pay attention to various government regulations related to healthcare? Is there anything wrong with email communications between physicians of the same practice giving each other advice for the purpose of keeping themselves fully in compliance with the healthcare rules and regulations, even specifically so as to avoid being targeted, ensnared, and persecuted by the government? Physicians must realize the risk of falling victim to medical McCarthyism out there in the Real World.

As we will see below, my emails to Dr. Couch were largely misconstrued out of context (as I have mentioned above) to imply the presumption of guilt. The prosecutors showed a few dozen emails of mine to the jury. Among them, the one dated July 8, 2014 is the most probative or indicative of my “guilt and had been shown to the jury numerous times at trial. Some of the passages in the BMJ article were taken from this email. I will label this email as the Red Flag Email. In it, I discussed multiple issues with Dr. Couch, but one of them made reference to the Alabama Board of Medical Examiners (ALBME). I will discuss this issue first because the reason why I had mentioned ALBME in the Red Flag Email was not shown at trial.

In the Red Flag Email, I specifically wrote: “…especially we are trying to convince the Alabama Board of Medical Examiners that we have a great system to keep patients satisfied and addicts out. You don’t want Roxicodone 30 milligrams messing things up, or at least contradicting to what we promote.”

There was another email of mine to Dr. Couch shown to the jury during the direct examination of the DEA Special Agent Michael Burt by Mr. Bodnar, in which I wrote: “Don’t let Dr. Chen (another PPSA physician} sign your nurse practitioners’ prescriptions. Stacy may have taken advantage of both Dr. Chen and me signing prescriptions. Plus if you bill the visits, he signs the prescriptions, but your nurse’s bill under you; of course there will be unpleasant feelings. On rare occasions if you are sick or in court, it is different” (Tr. 1/23/17 p. 2040).

This particular email was sent on October 13, 2014, about seven months prior to the DEA/FBI raid on PPSA and C&R Pharmacy on May 20, 2015. Here I stated that “Stacy may have taken advantage of both Dr. Chen and me signing prescriptions,” because I assumed Dr. Couch’s mid-level practitioners had to find a physician to sign his prescriptions when Dr. Couch was not in the office. I alluded that Dr. Chen and I might have been taken advantage of because had we seen the patients and signed the prescriptions, if Stacy had billed those visits under Dr. Couch, then that would not have been appropriate. However, the assumption is that Dr. Couch’s mid-level practitioners could not sign or did not sign the prescriptions, therefore they needed either Dr. Couch, Dr. Chen, or myself to sign those prescriptions. If I had actually known Dr. Couch’s mid­ level practitioners could forge his signature and indeed may have been doing so, then I would not have written this email in the first place as it would have been meaningless. So rationally speaking, this email actually proves that there was no conspiracy between Dr. Couch and myself.

Now I have come to the end of this paper. So far, I have presented what I believe to be compelling email evidence (by the government’s standard) of my alleged crime. However, knowing the social, political. economical, and the recent historical backdrop associated with the use of opioid therapy for the treatment of chronic pain, and considering how vicious a system we physicians have faced, was there anything out of the ordinary in those emails that justified their being utilized as incriminating evidence? I mentioned at the beginning of this essay tha1to properly interpret these emails one has to consider the specific context in which these emails were written, especially as most of them were shared among many other professionals working- In the same clinic.

The writers of the U.S. Constitution believed that the opportunity to a jury trial be given to those citizens facing criminal prosecution for the purpose of preventing unjust oppression or persecution. However, when the jury was purposely blinded or deliberately mislead by the prosecutors and when a federal trial judge was blatantly partial favoring the prosecution team, can the jury’s verdict be trusted to represent justice? This is exactly the dilemma I faced during my trial. My seven-week jury trial was laden with egregious prosecutorial misconduct and judicial biases that indubitably reduced my trial to a mere mockery. (See other essays, e.g. “Prosecutors Acting as Witnesses,””Prosecutorial Witness Coaching,””Conviction Complex,””Judicial Misconduct & Judicial Bias.”) The tiny amount of confidence that I had, prior to my jury trial, in the criminal justice system of this country (expecting that Judge Callie V.S. Granade, a Senior Federal District Judge would be disinterested and impartial) completely vaporized after I had personally gone through my own jury trial.

Finally, the biggest shock to me at trial was the realization that neither the prosecutors nor Judge Granade seemed to care about delivering justice; they did not even seem to care about the façade of justice. The mentality of the presumption of wickedness dominated the entire trial. That is why those emails of mine were utilized out of context to indicate de facto evidence of guilt, when in fact and if examined rationally in the right context, they actually supported my innocence and willingness to operate within the boundaries of practice guidelines. Indeed, when words in my emails were only interpreted selectively, ignoring the socio-political backdrop and the proper context, as well as under the assumption that I was already guilty as charged, as was portrayed in the BMJ article together with a plethora of public media outlets long before the trial, the Due Process Clause of the Fifth and Fourteenth Amendments was violated.