The Pain of Justifying Injustice

Just Doing His Job
By John Tierney
The New York Times

After I wrote last year about Richard Paey, the wheelchair-bound patient who's been in physical agony for two decades, a lot of readers asked me what kind of monster could have prosecuted him for obtaining painkillers. If you watched "60 Minutes" Sunday, you could see for yourself.

Scott Andringa, the prosecutor in Florida who sent Paey to prison for 25 years, did not come off well on "60 Minutes," but he didn't look dementedly evil, either. He seemed exactly the way I've found him in interviews: earnest, conscientious, convinced he had done the right thing. That's why he scares me.

He's one of the many well-meaning public officials whose judgment has been so warped by the war on drugs that they can't see what they've become. Andringa, echoing the line of the Drug Enforcement Administration, has assured me he would never stop patients from getting medicine for their pain.

"I have the utmost respect for doctors who try to treat pain humanely and responsibly," he told me. "I am not a doctor. I have never claimed to be a doctor."

Yet there he was playing doctor on "60 Minutes" to explain why it was "reasonable" to infer that Paey was a drug dealer. There was no evidence that Paey had sold any of his painkillers (and agents had conducted surveillance of him and his wife for two months). But Andringa inferred that Paey must have been selling them because the prescriptions he received worked out to about 25 pills per day.

"One pill every hour, every day, for two years," Andringa told Morley Safer, as if this feat of math proved his case. It's the same mystic numerology you hear over and over from drug warriors like Karen Tandy, the head of the D.E.A., who prefers to focus on the number of pills prescribed without bothering with details like the patient's needs or the dosage.

Paey had no trouble explaining to me why he was taking 25 pills per day: his doctor cautiously gave him a variety of low-strength pills in order to avoid prescribing the kind of painkillers that tempt drug abusers and invite investigation from the D.E.A. Instead of taking a few high-strength oxycodone pills, Paey took a cocktail of pills containing low doses of oxycodone and other less effective pain killers like Tylenol.

As a result, the total daily dose of oxycodone in all those pills Paey took was less than what he could have gotten in a single high-strength OxyContin pill. And there are some chronic-pain patients who need 10 of those high-strength OxyContins every day because they, like Paey, have developed a tolerance to the drug over the years.

So there was no good medical reason to assume that Paey wasn't taking all those pills. In fact, he says he wasn't getting enough pain relief because of his doctor's fear of the D.E.A. Yet Andringa simply made his own medical diagnosis — too many pills — and proceeded to exploit the extraordinary leverage that prosecutors have been given over doctors and patients.

The typical approach is to put pressure on patients to turn on their doctors, but it can work the other way, too. Paey told me he was offered a deal by investigators: "They said if you're willing to testify against your doctor it would go a long way to having these charges go away." Paey refused, and then found himself facing hostile testimony from the doctor, who said he had not authorized the contested prescriptions.

After the doctor's credibility was challenged in court — he was contradicted both by his own words and by pharmacists who said he'd approved the prescriptions — the prosecutor came up with a mind-boggling new argument against Paey. Andringa told the jurors that even if they believed the doctor had prescribed the drugs, Paey should still be convicted because the doctor should never have written the prescriptions.

Andringa argued that the doctor wasn't practicing proper medicine — according to the prosecutor's standards — so the prescriptions were illegal and Paey shouldn't have filled them. By this logic, instead of listening to his doctor, Paey should have tried to anticipate what a prosecutor would prescribe for him.

I spoke to Andringa yesterday, after he'd watched "60 Minutes" and seen Paey's wife and the three teenage children whose father may die in prison. "I'm not thrilled about this case," he said. "I'm only proud that I did my job as a prosecutor." And self-appointed doctor.

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

Related Materials:

Watch the "60 Minutes" segment about Richard Paey | Prisoner Of Pain

"Fisking the DEA," The Agitator blog, May 15, 2005.

"Punishing Pain," by John Tierney. New York Times, July 19, 2005.

"Drug Cops and Doctors" (pdf), a Cato Institute conference featuring Linda Paey's account of her husband's case.

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