DRCNet Interview: Dr. Robert Kale, Pain Management Specialist, Fort Smith, Arkansas http://stopthedrugwar.org/chronicle/333/robertkale.shtml Dr. Robert Kale, a double board certified anesthesiologist and pain management specialist, as well as a practicing acupuncturist, ran a well-regarded pain management clinic in Fort Smith, Arkansas, until he was hauled before the Arkansas State Medical Board on a charge of over-prescribing opioid pain relievers in August of 2002. He has since been vindicated by the medical board, but the Drug Enforcement Administration refuses to return his DEA certificate, which allows doctors to prescribe controlled substances and is crucial to a pain management practice. Already active in issues related to the treatment of chronic pain before his run-in with the authorities, Dr. Kale became even more active. He joined with Dr. Ronald Myers of the National Pain Institute (see related story this issue) and Arkansas pain patients to push through the state's pioneering Chronic Pain Relief Act last year, and has emerged as a tireless fighter against drug war intrusions into the practice of medicine. Dr. Kale, along with another harassed Arkansas physician, Dr. Terry Brackman, is set to speak at the Pain Patients Rally and March on Washington scheduled for next week, whose primary purpose is to call for congressional hearings on DEA attacks on pain physicians and patients. In the meantime, his practice remains shuttered, and his patients on their own, more collateral damage in the war on drugs. DRCNet spoke with Dr. Kale in Fort Smith on Wednesday. Drug War Chronicle: The treatment of chronic pain with opioids is an increasingly contentious issue. Sometimes doctors are hauled in for administrative oversights or lax practices. Was that the case here? Dr. Robert Kale: It's a complicated issue. At the least, you have to balance the rights of patients and doctors to interact freely and use controlled substances against the potential problems for society with drugs being diverted and misused and becoming part of the drug problem. In many cases where doctors have been disciplined or even arrested, the doctor may have meant well but wasn't qualified, or he was seeing hundreds of patients a day, or writing prescriptions long distance. The patients may stand behind their physician saying "oh, he's a good doctor," but medical boards or prosecutors will point to their imperfections. I'm the first doctor who can completely challenge this bull**** because I'm 100% clean. Chronicle: Clearly, the Arkansas medical board didn't think that, at least at first. What happened? Dr. Kale: They did an emergency suspension of my medical license. That is a step usually reserved for a physician who represents an immediate danger to the community, but when they slapped the suspension on me, there were zero complaints from patients, zero patient deaths, zero injuries. The board knew who I was -- or at least it should have. In 1997, in a case that got a lot of publicity here, I turned in a local TV anchorman because he was doctor-shopping, much like Rush Limbaugh. I thought the man was becoming a danger to himself. As a result of my involvement in that, the board reviewed my practice. They looked over my patient charts and wrote a letter saying they saw no problem with my practice. They were so unconcerned that they didn't even ask me to appear or talk to them. They said there was no problem. The same thing happened in 1994, when the board reviewed my practice and found no problems. I was doing everything perfectly right and I still got nailed. What happens when a doctor has made just a little mistake? Chronicle: So why the emergency suspension? Dr. Kale: The issue was not diverting drugs, there were no ODs, no deaths, no injuries. I was prescribing correctly. So, yes, why did this happen? Well, there was one complaint against me, and that came from the Dillard's department store. They had an employee on workmen's compensation for back problems, and she was being prescribed one Lorcet twice a day. Here is a woman whom the doctors recognized was in pain, which is why they prescribed Lorcet, but the amount of Lorcet they prescribed was only good for five hours a day. That's malpractice! They knew she was in pain and only gave her enough medicine for part of the day. I adjusted her prescriptions, only now the patient was costing Dillard's $1,300 a month instead of $30. When I renewed the prescriptions, Dillard's sent one of their nurse case workers to the office. She came storming into my office demanding to see me and told my staff if I didn't speak with her I would soon be in trouble with the state medical board. She called me at home and accused me of overdosing the patient, which was ridiculous -- she was in better shape than ever, actually able to do things instead of just sit in a chair all day, and told the workmen's comp doctors her life was improved. It is worth noting that the chairman of the medical board is Dr. Roy Louette, who is also the medical director for Tyson's Foods, the mammoth chicken-slaughtering operation. Louette has shown his stripes. He was part of a blue ribbon panel put together by Blue Cross to look into whether Blue Cross should pay for epidurals for laborers. "Those patients don't need those," is what Louette said. Chronicle: But you were vindicated by the medical board? Dr. Kale: Yes. They charged me with 12 counts of over-prescribing and no other violations. Then the media asked if there were any other charges because a charge like this is typically accompanied by a charge of bad or fraudulent recordkeeping. But the board said there were no charting problems. This was an administrative error on the board's part, because to charge over-prescribing they have to charge recordkeeping violations as well. So they came back with a new charge that even though the name of my practice included the word acupuncture, I was advertising as a pain management program. My practice includes both. The over-prescribing charges were a bad joke, and the board realized that once we demolished their so-called expert witness, who was more of a useful idiot than anything. He hadn't practiced in nine years, and we ate him alive. He claimed my prescriptions were inappropriate. But I subpoenaed every pain management specialist in the state and let the board know I was prepared to ask each one, "Here's a man who's in severe pain. What's the right dosage?" And they would reply, "I don't know. It would have to be titrated to find out." And I would then ask, "Well, who can tell me what the correct dose is?" And the answer would be, "Nobody." And I had the whole thing filmed. When they saw where this was heading, they called a recess, and when they came back, their expert witness said that on further review he thought the doses were appropriate except in two cases. The over-prescribing complaint against me was dropped, but the board upheld the charge related to promoting my practice. I am appealing that in the courts here. But although the medical board failed to find me guilty of over-prescribing, they already won because I had to go through this. They punish me first, charge me second, then 10 months later, these doctors who desperately wanted to find me guilty of over-prescribing found zero patients to hang a case on. They had to have some reason for closing my practice and forcing 400 patients out of state, so they used the administrative violation as a justification. Chronicle: So you beat the medical board, but you're still not in practice. Can you tell us about the role of the DEA in this? Dr. Kale: It's funny. About a month before the medical board subpoenaed my charts, a Walmart pharmacist asked the local DEA agent who runs the cleanest program in the state. He pointed to my practice. In fact, that agent has referred people to me, including members of law enforcement families. After the board charged me, that same DEA agent called and said he had an order from the medical board to pick up my DEA certificate, which is necessary to prescribe controlled substances. That was a lie. If the DEA wants your certificate, they have to provide a hearing for you to defend yourself. But if you surrender your certificate, there is no need for a hearing. "Just put it in the mail and we can keep this from getting messy," is what he told me. So what happened is the DEA fraudulently obtained my certificate, and now they won't give it back. If you are a pain management physician without a DEA certificate, you cannot do your job. The state medical board wrote a letter saying there was no reason to lift my certificate, but that hasn't made a difference. In 1989, Congress said the DEA was to follow the recommendations of the states in granting certification, so now what happens is you have to get the state licensing authority to write a letter of support. Well, I have that. By law, the DEA is supposed to be concerned with legal prescribing, not what is medically correct. To be legal, you have to have the certificate and you have to be prescribing for legitimate medical reasons. If a physician gets in trouble with the medical board, the board will make it clear that if he accepts punishment quietly he will get probation. So the physician, who wants to get his practice back up and running agrees, but then the DEA shows up and says, "By the way, we have this felony warrant for illegal diversion of controlled substances, the medical board said you over-prescribed and you agreed, so we are using the medical board's action to decide legitimate medical practice." The medical board always found itself correct in jerking someone's license, and that's no surprise, since it acts as judge, jury and executioner. But in my case, it was the first time they had to back down, so there was no question of a criminal prosecution by the DEA. So I called them up and said, "Where's my certificate?" The DEA responded that because I had been found guilty of improperly promoting my practice they could do that. They also said that I had voluntarily surrendered my license, when in fact I had been deceived. Now they say they will have to do an investigation. "We'll decide if it's in the public's best interest for you to be practicing medicine," is what they told me. This is a witch hunt by the DEA. There is no need for this. There are no prescribing violations, and the state medical board has written a letter of support. The DEA is trying to intimidate me, trying to make me understand that I am subject to its whims. They have held up returning my certificate for three months now. The DEA knows better. I've had agents tell me, "They taught us all about you doctors in DEA school, about how you'll start prescribing to anyone so you can get that new Mercedes." But I never saw more than 15 patients or so in a day and I never made more than $75,000 a year. I keep immaculate records, and I am well qualified; in fact, I have taught about pain management at numerous institutions in the area. My patients complained about all the recordkeeping. Heck, 21 of my patients were nuns from the local convent. You can't call them drug addicts. Every pharmacist in town has written letters of support for me. The DEA has no business being involved in this and no business withholding my certificate. This is not about injury or death or complaints, this is about teaching me a lesson. The DEA has to justify its existence. It is an ineffective agency. Their rhetoric is about the number one drug problem being Oxycontin and prescription drugs, but I live in a meth capital. Every month here, there are 40 to 80 mentions of meth, 30 to 50 mentions of pot, 20 to 40 mentions of cocaine. We might see prescribed medicines mentioned in the crime pages once or twice a month. How can they say prescribed medicines are the number one problem? Not in this community. Now, lack of access to those medications is becoming a big problem. Chronicle: How did you get involved with Dr. Ron Myers, the American Pain Institute, and the National Pain Patients' Coalition? Dr. Kale: Dr. Myers was in town covering for Dr. Terry Brackman, a physician who had had his license suspended and his DEA certificate lifted. Ron Myers saw Breckman's patients being called drug addicts, and he started getting into conflict with the medical board over that. He called me up and asked me to join him in what he was doing. Last year, Myers and the Pain Coalition were trying to get the Arkansas Chronic Pain Relief Bill passed, and they asked me to speak to the state legislature, which I did. The medical board and other opponents of the bill said chronic pain wasn't that big a problem, and besides, there were better ways to treat pain than the use of narcotic pain relievers. I told them about one of my patients whose physicians would not prescribe sufficient medications to treat his pain. They wanted to put him on an internal morphine pump, so they refused to up his pain meds. I gave this guy his life back, while these other doctors were torturing him by withholding medicine so they could put him on the pump. I called for the resignation of Dr. Roy Jouette, the head of the state medical board. Eight days later they suspended my license. They also told people not to hang out with Dr. Myers. And now I will, I hope, be able to attend and address the Pain Patients Rally and March on Washington next week. But I'm broke and my back hurts and it's a 15-to-18 hour drive from here to Washington. We'll see. Chronicle: What has happened to your patients since your practice was effectively shut down? Dr. Kale: Some went through withdrawals and have gone back to doing nothing again. These are people who had been made productive and now they're sitting back in the chairs at home suffering. Their lives have gone to **** again. There has been at least one suicide. Some have found local doctors who will at least under-treat them. Many now drive hours to Tulsa or Dallas or Houston or Springfield, Missouri, to find a doctor who will treat them properly. 60 Minutes II is working on a story about my case, and they followed one of my patients to Tulsa. She owns three businesses and just wants to be able to function. After I was shut down, she went to her primary care physician here to fill her prescription for MS Contin, and before she even got to see the doctor his staff told her he wouldn't prescribe that. And what's worse, he wouldn't even see anyone who was on medications like that. She was denied not only pain treatment but even regular medical care. That's how scared her doctor was, and he's not the only one. Chronicle: What has the impact been on you? Dr. Kale: Mine is the one good, clean case. There is no controversy anymore, although the mass media has never asked about the original charges, why I was suspended on an emergency basis. They never asked why the board had to come up with a technical rules violation, they never asked why not just find him innocent? The answer is if you beat this guy to death, you send a strong message to all the other doctors. And it's working. We have clinics here now that have signs saying "We don't prescribe pain medicines here, so don't even ask." I've talked to other doctors here about appearing on 60 Minutes II, but they are afraid. My own physician won't appear. I've talked to other doctors who say they have patients who are not getting the medicine they need and they are not treating them because they're scared. And they don't want to go public either. My savings are about eaten up. I had back surgery recently and have a small disability policy from that, but we've gone heavily into debt. We've got two kids at Stanford, and I had to sell the kids' cars, which is a shame. We will try to sue the state medical board for violating my civil rights, but that is a tough road. It is protected from most suits, unless we can prove malice and that it didn't follow its own rules, but I think we have a fairly strong argument there. I'm not backing down. I've always been a fighter and I can take my lumps, but the hard part of this is the effect on my family and the sacrifices they are having to make. Still, I can't keep quiet when I see what is going on and so many people are suffering.
This is one of the worst parts of the drug war. They are so concerned about people taking drugs for recreational purposes that they will happily put a good doctor out of business and allow the pain patients to suffer. Nobody deserves to suffer from intractable pain.
Pain Patients Head for Washington, Demand Congressional Hearings 4/16/04 As a wave of investigations and prosecutions of doctors prescribing opioid pain relievers to chronic pain patients spreads across the land and professional medical organizations for the most part muster only a lackluster response, patients and doctors have begun to organize themselves to defend their right to adequate treatment of pain. One of those efforts flourished in Mississippi and Arkansas beginning with the formation of a chronic pain patients' movement in Fort Smith, Arkansas, in 2001, and now pain patients' and doctors' groups based there are heading for Washington, DC. They are seeking acknowledgement of their pain, to rein in the DEA, and congressional hearings to address the entire topic of pain treatment and the war on drugs. The National Pain Patients' Coalition (http://www.paincoalition.us), the American Pain Institute (http://www.americanpaininstitute.org) and the National Juneteenth Medical Commission (http://www.19thofjune.com), grassroots pain advocacy organizations all, are convoking a March on Washington and days of lobbying Congress, with actions in the nation's capital beginning Sunday and continuing through Wednesday. While the pain groups' names signal a national ambition, they are an outgrowth of that early organizing in Arkansas and Mississippi, and at this point remain essentially Southern groups. Still, said Jean Bancroft, public relations director for the march, the group expects to see patients from across the country in Washington and hopes to draw at least 2,000 people. "The DEA war on drugs has turned into war on pain patients and the physicians who treat them," said Virginia Brooks, a chronic pain patient and leader of the National Pain Patients Coalition (NPPC). "Unable to find a doctor willing to treat them, many pain patients are choosing suicide over living with chronic pain." That is a personal choice and not a solution she would choose for herself, Brooks made clear. "Look," she said, "if someone takes a bottle of pain pills and kills himself, that's his responsibility. Why would you go after a doctor because his patient reached a point where he can't take anymore? But suicide isn't an option for me," the staunchly Baptist Brooks told DRCNet. "I'm in great pain, but that's not as bad as the pain of hellfire." But for others who perhaps do not share Brooks' strong faith, chronic pain means choosing between the mercy of an early death, the agony of not being adequately treated for pain, or the danger of being labeled a "doctor-shopper" or "pill head" or, worse, being arrested, convicted, and imprisoned for taking whatever steps necessary to ease the pain. The American Medical Association puts the number of Americans in chronic pain as high as 70 million. The Rev. Ronald Myers, Sr., MD, founder of the American Pain Institute, put the number a little lower, but the message is the same. "Over 50 million people are living in untreated, disabling pain," said Myers. "The DEA has unjustly prosecuted many physicians who treat chronic pain, shutting down their medical practices and in some cases, trying to give them long prison terms. The irresponsible actions of the DEA witch hunt of many good physicians who treat chronic pain has led to a health care catastrophe in America," Myers continued. "Far too many people have chosen suicide over living with untreated chronic pain. The DEA's hysteria over Oxycontin, and now hydrocodone, which the DEA is trying to make a schedule II narcotic drug, we hope will be quickly investigated by Congress to turn the tide on the epidemic of pain patient suicides. The increased suicides among chronic pain patients demonstrates the morally reprehensible actions of the DEA." "I was resting when you called," National Pain Patients Coalition head Brooks told DRCNet Thursday. "I was lying down because I don't have enough strong medicine to take because these people think that people in pain just don't exist. People look at me up and down and say, "oh, she's not hurting so bad," but they don't know. I'm hurting real bad," she said. "I have spinal bifida and degenerating discs in my spine, for starters," she explained. "There's nothing wrong with my brain, but the pain is what gets me." "At the beginning, I thought I was alone," said Brooks, "but I had to do something. I became the first patient to step out. I got up on the steps of the capitol in Jackson and spoke out, and the Associated Press ran a story with my photo, and it has just taken off from there," she explained. "I became the founding member of the National Pain Patients' Coalition, and now I get so much e-mail and so many phone calls about it I can barely keep up. They come from all over the country." Brooks will go to Washington despite the pain, as will Bancroft, and countless other patients who are willing to face the agony of travel in an effort to improve their lives and the lives of millions of others deprived of adequate treatment because of drug war policies. "I can't believe I'm going to do this, but yes, I am going," said Bancroft, who told DRCNet a similar trip had left her hospitalized for two weeks. "I will pay for this dearly. It is not a sacrifice. In some ways, being sick is a blessing because you know how precious being healthy is. I have to go," she explained. The effort aimed at Washington had its genesis in the DEA persecution of Fort Smith, Arkansas, pain specialist Dr. Terry Brackman in 2001. "I came to Fort Smith in 2001 because there was a clinic there where the doctor had lost his DEA license. He was practicing pain medicine and wanted to know if I could help out," Myers said. "Dr. Brackman's patients had no where to go, some of them committed suicide. It's a 12-hour trip to Fort Smith, so I prayed about it," said Myers, a Baptist medical missionary who wears the title "Reverend" before his name as proudly as he wears the title "MD" behind it. "When I got there and saw what was going on, I said to myself that we had to get organized into a political force to fight this. When I organize people, I put them in charge. I come out of a civil rights background, and what I noticed was that no one was speaking for the patients. There were doctors, pharmacists, organizations with big grants, but they were not empowering the people who had the problem. I made sure these people would be empowered," he said. "As a physician, my role is to be supportive of the patients, and other doctors involved are doing the same." As Myers and Fort Smith doctors and patients rallied around Dr. Brackman, down in Mississippi, Virginia Brooks was suffering. In what she described as something akin to an act of divine intervention, she sought Myers out. "Almighty God, I was standing around with a bag full of medicine that wasn't working. I was angry inside and didn't know it. Out of the blue, something told me to call Dr. Myers. I asked myself why I was going to yet another doctor who couldn't help, so I called to cancel the appointment, but when I opened my mouth, all I could say was that I needed to reschedule. I came in, and Dr. Myers could see I was so angry inside and he prayed for me and we've kept in close contact ever since," she said. "The more I find out, the angrier I get, and the angrier I get, the more I pray," Brooks explained. "I don't pray harm on the doctors and DEA men and lawmakers, but I do pray they could be in my shoes for just 30 seconds. I think they would come around quick then." Meanwhile in Arkansas, thanks to Rev. Myers, Dr. Brackman, Dr. Robert Kale (see interview this issue), and their patients and sympathizers, a grassroots pain movement was taking shape. Inspired by the investigations of Brackman and Kale, Myers led protest rallies at the Arkansas State Medical Board where, among other things, protestors called for the resignation of board chairman Dr. Ray Jouett for his callousness toward pain patients and physicians. Those actions led to the formation of the Arkansas Coalition for Patients Rights and Chronic Pain Management, which successfully pushed through the 2003 Arkansas Chronic Pain Treatment Act, a measure that specifies that physicians are indeed allowed to prescribe adequate pain medications without fear of prosecution or investigation. "The coalition wrote the first draft of that legislation," said Myer. "If not for the coalition, there would be no Arkansas Chronic Pain Treatment Act." Out of the Arkansas Coalition grew the National Pain Patients Coalition, which is now supporting similar legislation in Louisiana, Michigan, Mississippi, New Jersey, and Oregon, and fighting against prescription monitoring legislation in Florida and wherever else drug czar John Walters can convince solons to author bills that would advance his crusade for a national prescription monitoring system. "We tried to get the strongest chronic pain bill in the US passed this year in Mississippi," said Brooks, "but it didn't even get to committee. The lawyers killed it." Now, in addition to waging the battle state by state, the pain patient groups are taking it to Congress. "The only way the situation will be changed around is through Congress," Myers explained. "Only Congress can demand accountability from the DEA and IRS. Nothing else will help. They have this phony drug war and are looking for easy targets. We have to do this march on Washington to get congressional hearings, and to bug Congress to death." "We know a lot of pain patients are too sick to go because of their pain, so those who can make it will go, and for those who can't, we'll show them how to bug their congressmen from afar," said Myers. "That's what I've been working on." The strategy is already paying dividends, said Myers. "We have meetings scheduled with various congressmen for Monday and Tuesday, and we're working out scheduling conflicts to have a meeting with DEA director Karen Tandy and Attorney General John Ashcroft. One of the things we want to ask them is why the DEA won't return Dr. Kale's certificate. It's been seven months since the Arkansas medical board said to do it, but they refuse." It's all about reducing the pain, said Brooks. "We want the pain reduced," Brooks said. "I know I can't be free of pain, but can't they at least reduce it? But the doctors say they're scared to do that, so my back gets worse and I end up where I can't walk and I have to be hospitalized. They say pain patients are depressed, then they give us antidepressants that make things worse. They say we're agitated and angry. Well, we are. We're agitated and angry at the system and the DEA. Why do these people without a medical degree get to determine how much medicine we need?" View the Arkansas chronic pain act online at: http://www.arkleg.state.ar.us/ftproot/bills/2003/public/SB265.pdf
My father does the same thing for a living. It always amazes me how lawyers and politicians seem to think they know more about proper medical treatment than the physicians treating the patients.
Andy, I think that despite this story the "just say no to drugs crowd" is losing on the issue of pain meds. I would rather be "addicted" to pain killers than on the point of suicide from pain. Who wouldn't? It is really a cost benefit analysis as some of the heavy narcotics do have side effects. All those who support this part of the "war on drugs" should be identified so that they cannot receive pain meds in the future. Being a liberal who believes in rehailitation I would make an exception if they make public confessions that they were wrong, are sorry for the pain they have caused others; that they didn't really understand the issue.
i had a root canal without painkillers, and it was one of the worst times in my life. this guy needs to be paid more. if anybody has changed my opinion on an issue that I once stood strongly about, it has been andymoon and his comprehensive analysis on the failure of the war on drugs and how this mentality just screws things up, just further proof that minds can be changed in the D&D, if done right.
While I understand what you mean and think there is a lot of validity to it, it seems to often that doctors expect to get a blank check to do whatever they want because they 'know better.' I think doctors should be given as much lattitude as possible to do their work, but it'd be a bit presumptuous to just give them carte blanche to do just whatever they like.
I agree that we need to have legitimate oversight. Doctors should not have a "blank check" to do "whatever they want" as they make mistakes, too. Also, the fight here is supposed to be against people who use these drugs recreationally. If currently illicit recreational drugs were legal, there would be a fairly small market for misuse of prescription drugs. If we want to deal with people who become addicted to drugs, I believe it would be more effective to have a comprehensive strategy with which to deal with the issue of drug addiction. This way, it wouldn't matter WHAT drug one was addicted to, we would rehabilitate the addict, no matter the specific addiction. Of course, in order to do that, we would have to regulate currently illicit drugs.
But such questions of proper behavior should probably be answered by other physicians (with latitude since doctors even disagree among themselves on many issues and many courses of treatment) rather than lawyers and law enforcement officers who are too often scared into action by an event that isn't representative of the greater whole or who write laws without thinking through all of the consequences of their actions, in my opinion. Personally, I know a lot of doctors, and I think you're talking about a small minority of them when you refer to them wanting a "blank check" But that's just my opinion based on my experience (which, obviously, is merely a small sample of the total number of physicians in the United States).
Very good point. Oversight of doctors should be done by the AMA and state medical boards rather than the DEA and Congress.
