DEA Wages Unjust War on Doctors

John Tierney describes what can happen when good intentions and justice take a detour in the war on drugs....

Sex, Lies and OxyContin
By John Tierney
The New York Times

Jennifer Riggle, a drug addict, was a star witness in the trial of her doctor, Bernard Rottschaefer. She testified that he had fondled her breasts in the examination room and then given her prescriptions for OxyContin and Xanax in return for sex.

In testimony in federal court two years ago, Riggle quoted the doctor as saying, " 'You satisfy my needs and I'll satisfy yours.' "

Rottschaefer denied the allegations but was convicted and sentenced to six and a half years in prison. The "drugs for sex" trial in Pittsburgh appeared to be a triumph for the Drug Enforcement Administration, which had helped investigate the doctor. But now it looks more like a frightening example of what's wrong with the D.E.A.'s war against doctors.

The drugs-for-sex case was based on the testimony of Riggle and three other women. All were in trouble with the law and had something to gain by cooperating with the D.E.A. agents who interviewed them. During the trial, Rottschaefer's attorneys pointed out problems with the women's stories - one was unable to say whether the doctor was circumcised - but it wasn't until later that the most damning evidence appeared.

Riggle's former boyfriend, angry at her for dumping him, produced a batch of letters he had received in prison from her; in them, she said she had never had sex with the doctor. You might suspect that she just didn't want to admit infidelity to her boyfriend, but in one letter she volunteered the information that she'd had sex with another man for $50.

She explained to her boyfriend that she was committing perjury because she faced drug charges that could have sent her to prison for six years. "They're saying he was bribing patients with sex for pills," she wrote, referring to the doctor, "but it never happened to me. D.E.A. said they will cut my time for good testimony. I don't want to be a snitch but what should I do?" After she cooperated, she received probation instead of prison time for the drug charges.

In the letters to her boyfriend, she fretted about being caught for perjury and urged him to destroy the incriminating letters. She worried she might have to take a polygraph test. She berated herself for having told another inmate about her perjury:

"See babe, the reason why I've been so down is cause you know that big secret I told you about the doctor? Well, [I] told someone about it way back and I am scared to death that she will reveal it and I'd never go home." Later that inmate would indeed come forward and say that Riggle had confessed to making up the story about sex with the doctor.

Rottschaefer's lawyers are now appealing his conviction, arguing that it should be overturned because of the new evidence of perjury, but the federal prosecutors show no signs of remorse. (Neither they nor Riggle's attorney responded to my inquiries about the case.) So far Riggle has not been charged with perjury.

Instead, the prosecutors are still focused on punishing Rottschaefer. They've argued that even if he didn't trade drugs for sex, he still deserves prison because he should have examined patients like Riggle more carefully and realized that she was an addict who was lying to him in order to abuse drugs.

That's the same legal argument that has been used to convict other doctors. But it shouldn't be the job of federal law enforcement officials to decide what constitutes proper medical practice. Inept doctors can be sued for malpractice or lose their state medical licenses, but they shouldn't go to jail.

It's especially unfair for the D.E.A. to go after doctors who treat pain, because they're dealing with symptoms that are notoriously difficult to measure. Doctors can do tests, but they also have to make judgments based on what patients tell them - and the Rottschaefer case ought to show the federal drug warriors how tricky those judgments can be.

If you believe Riggle's letters, as I do, there are two possible conclusions about the behavior of the D.E.A. agents and prosecutors. At worst, some of them illegally encouraged a witness to commit perjury. At best, they were duped.

The agents and prosecutors are supposed to be experts at detecting liars, and they had far better investigative tools available to them than Rottschaefer did. Yet they apparently weren't careful enough or shrewd enough to see through Riggle's story. If they don't deserve prison time for that mistake, neither does her doctor.

Photo credit: John Tierney. (Fred R. Conrad/The New York Times)

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