Pain (24 page)

Fearing threats from prosecutors on one side and from undertreated patients on the other, pain doctors faced a dilemma: with whom would they align? In the late 1980s and early 1990s, some charted a more confrontational approach on the policing of relief. While Hill chose political compromise, others, like William Hurwitz, tempted prosecution with his aggressive relief practices. In September 1991 the DEA entered Hurwitz's practice in the District of Columbia and arrested him. Hurwitz had prescribed as much as 500 milligrams a day of oxycodone for a patient suffering with hip-bone deterioration. Where 20 milligrams was the norm, the patient had built up a tolerance over time for the drug. The DEA claimed that such high dosages could only be used recreationally, but
pain advocates insisted that people like Hurwitz's patient did not become “high” on the drug—the high dosage was necessary simply for the patient to function normally. Hurwitz saw the legal oversight of pain medicine as a travesty. He wrote later, “I was charged with having prescribed excessive doses of opioid analgesics in the treatment of thirty patients who, it was acknowledged by the Board of Medicine, had conditions causing intractable pain.” Along with Hill, he saw himself and his patients as victimized—not only by prosecutors but also by medical boards who had grown timid and sensitive to political pressure—and ignorant of the details of pain relief and addiction. The medical board “hearing might well be characterized as a Kafkaesque inquisition,” he insisted. “This was not anything close to an open-minded search for the truth in which legal adversaries present evidence before an impartial finder-of-fact. This Board thought it knew from the outset what constituted proper pain management, and it thought it knew that the high doses of medication I prescribed to many of my patients were illegitimate and without clinical rationale.”
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Doctors in other states across the country faced similar threats. Elsewhere, at New York University, Ronald Blum, the university's chief of oncology faced charges (later dismissed) “by narcotic agents for alleged overprescribing of Diluadid to his cancer patients.”
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Facing such oversight, nurturing a powerful sense of victimization, and feeling abandoned even by their own profession, pain doctors like Hurwitz worked in one of the most politicized and legally contentious realms of medicine.

Hurwitz's anger about miseducation and defensive medicine among his fellow professionals was well founded. National surveys and studies of physicians found widespread confusion among state medical boards over pain and addiction theories—with limited understanding of the differences among concepts like drug tolerance, drug dependence, and drug addiction and with legal self-protection foremost in their minds rather than patient care. Even as late as 2002, a survey of 627 state medical board members across the country found that “while most respondents agreed that the prescribing of opioids for the cancer patient was legal and generally acceptable medical practice, only 12 percent were confident in the legality of prescribing for the patient with chronic non-cancer pain; the majority of respondents (77 percent) would discourage this practice or even investigate it as a violation of law.” In other words, the
legal and political environment convinced most board members to see themselves as would-be prosecutors rather than defenders of relief. As Hurwitz insisted, in this environment his patients “were treated like addicts and criminals. They were stigmatized, insulted, neglected and abandoned. [They were] betrayed by the whole medical profession with the refrain, ‘I would like to help you, but I can't. I don't want to lose my license.'” Doctors, he argued, were not treated any better than patients; “who can blame the doctors, who are themselves the victims of the thuggish drug-control police and the heartless and mindless bureaucrats who serve on boards of medicine[?]”
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What was a physician to do in this surveillance-intensive context?

In Oregon, emergency room physician John Kitzhaber pursued another course from Hill's in Texas or Hurwitz's in D.C.—running for office, rising to become president of the state senate in 1989, and eventually pushing through the state's controversial and pioneering Oregon Health Plan (focused on rationing) and its Death with Dignity legislation. He also eyed the governorship. It was a strategy Hill would have endorsed. As Hill later wrote, “Physicians should strive to change social attitudes toward pain control with narcotics by enlisting the support of colleagues and, if necessary, by political activism.” Physician practice, he believed, was constrained by legal intimidation: “There is a lack of evidence of a clear, direct relationship in the United States between laws and regulations governing drugs and adequacy of pain control. However, anecdotal reports indicate [that there is] implied, and in rare cases, real, intimidation of physicians by drug regulatory agencies and medical licensing boards.” What was needed, he believed, was to bring pain statutes into agreement across the states to insure uniformity of care and to remove legal threats to doctors, which continued to be the nemesis of relief: “It is necessary to standardize and define the language in our statutes, especially state statutes, so as to remove the vagueness and ambiguities that intimidate physicians using narcotics for pain control.”
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Once the doors to legislative action on pain had been opened by doctors like Hill, Kitzhaber, and others, it proved impossible to shut them again. By aligning themselves with elected officials to improve pain medicine, reformers like Hill were betting that the political currents would continue to be on their side. But what if the winds of reform started blowing not in the direction of protecting doctors and liberalizing compassionate
care but in the direction of even stiffer oversight and prosecution? What if a more conservative mind-set on pain relief came to prevail in the 1990s? This unanticipated situation is precisely what happened as states and the federal government looked with alarm at Michigan's Jack Kevorkian and at Oregon's 1994 referendum on physician-assisted suicide. These events shattered whatever tenuous détente had been achieved around compassionate pain relief in Texas's and California's IPTA laws.

Like Stratton Hill, Jack Kevorkian refused to apologize for aggressive, compassionate care; but Kevorkian was not a team player like Hill. He sought no political allies and brooked no compromises. A man with a single-minded fascination with death, he felt betrayed by his own profession. By the mid-1990s, Dr. Death and death with dignity took center stage in the American pain debate. In the wake of Kevorkian's actions and, more importantly, with the legal debate unfolding over the Oregon law came a profound challenge to the social norms of pain relief and to the state's and federal government's power to regulate it.
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For many opponents of physician-assisted suicide, morphine administered at the end of life could be nothing more than covert euthanasia; it was, in short, yet another perversion of liberal compassion: murder masquerading as relief. But where was the line between premeditated assisted suicide, bordering on murder, and merciful, liberal compassion? What limits, if any, should society place on self-determination in relief? These were the moral and legal questions put to the Kevorkian jury—questions without clear answers that cast a dark shadow over all patients in pain and practitioners of pain medicine. As the PAS debate entered the courts in the 1990s, it skewed the politics of pain anew; for now opponents tainted pain relief not only as costly and counterproductive but also as the thin end of the wedge leading to moral depravity. Kevorkian stood in for these fears, his trial accentuating the suspicion that all kinds of evil would be conducted under the guise of pain relief. The vagueness of existing statutes, legal precedent, professional guidelines, and popular opinions on matters of such gravity also created legal havoc—driving the question of pain squarely into legislatures and the courts where questions
of morality, murder, compassion, and pain relief would be weighed together.

FIGURE 4.1.
Dr. Jack Kevorkian poses with his “suicide machine,” crossing the politically contentious line between compassionate pain relief, euthanasia, and murder (Michigan, February 6, 1991).

Photo by Richard Sheinwald. Image courtesy of the Associated Press.

When Kevorkian invented and first used his suicide machine in 1990, it embodied a brash political statement aimed at his fellow practitioners. He explained that he was “trying to knock the medical profession into accepting its responsibilities, and those responsibilities include assisting their patients with death.”
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On trial, however, he spoke of people's pain, using successfully what became known as the “pain defense.” As he saw matters, the medical profession's key defect was its failure to soothe compassionately, particularly people suffering at the end of life. His repeated courtroom defense—that he was only trying to relieve excruciating, interminable pain and that, in the course of doing so, his patients died—made a powerful moral appeal to the sympathy of jurors and judges. In
his defense, he consistently and successfully blurred the lines between pain relief and euthanasia; one merged seamlessly into the other.

After the initial dismissal of charges in Adkins's death on grounds that prosecutors failed to show that Kevorkian (and not Adkins) had carried out the acts leading to her death, Kevorkian was retried after the deaths of Wantz and Miller. In these and other acquittals, juries saw the case for PAS in terms of pain relief and the freedom to choose. In privileging pain relief in their decisions, juries voiced a popular sentiment. They accepted that Kevorkian was driven by compassion and concern for pain; he acted as a doctor. As one legal scholar noted, “We take it as obvious that the three prosecutions and acquittals of Dr. Kevorkian fit the classic model of political trials in the Anglo-American tradition where juries, either in the space created by ambiguous legal rules or by exercising their nullifying power, speak powerfully for community sentiment.”

Observers highlighted other important features of the case—Kevorkian had become something of a “moral entrepreneur” in the field of assisted suicide.
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His argument for compassion and pain relief (even if it led to suppressed blood pressure, inhibited respiration, and death) had a strong appeal not only in the courtroom but also in broader society. Here was a new form of relief going well beyond disability benefits for a new era in a society where citizens were living longer than ever, where economic prosperity meant avid consumption of life-sustaining medicines, and yet where degenerative diseases persisted for people in their fifties, sixties, and seventies. Marjorie Wantz, age fifty-eight, was born in 1933. Janet Adkins, age fifty-four, was born in 1936. Sherri Miller was born in 1948; she was forty-three years old. They were a cohort whose birth straddled the Second World War and who constituted the leading edge of the baby boom; they had known the comforts of the postwar, consumer-oriented society. They had been avid consumers of much that American medicine had to offer from surgery to psychiatry; but now they were grappling with the best way to leave this life. It is not too much to say that, for this generation, death with dignity had a powerful appeal not as a giving up on medicine but as a continuation of what many Americans had come to expect regarding citizens' right to relief, personal liberty, and medical and consumer freedom. Kevorkian's pain defense (the notion that pain relief was ethically defensible medical practice even when it precipitated death)
was successful with judges and jurors, as it had been perhaps ironically with Pope Pius in the 1950s.

In his defense, Kevorkian drew on an old principle in religion, ethics, and pain relief put to new legal use. The so-called principle of double effect, which had deep origins in Catholic ethics with the writings of Thomas Aquinas and which had been revived with the rise of bioethics, revolved around whether one could engage in evil acts in pursuit of the good. Applied to pain medicine, the principle acknowledged that it was nearly impossible to disentangle the good act of compassionate pain management from the evil of putting another person to death, especially when pain drugs also lowered respiration and possibly hastened death. The concept defined a moral ambiguity at the heart of relief. The question of where compassion becomes killing slowly attained powerful cultural and legal resonance not only in Kevorkian's case but also in many others. In issuing his opinion on Kevorkian's earliest murder charge, Circuit Judge David Breck, for example, saw the long-term excruciating pain of Kevorkian's patients (and his work ending “lives of horrible desperation”) as a crucial factor in dismissing charges. In much the same way that gate control theory catalyzed social change in the 1970s or the way theories of learned helplessness shaped disability social policies in the 1980s, so too the theory of pain used in Kevorkian's defense—compassion that led as a consequence to death—became a flash point for controversy. Disentangling the two issues, pain relief and end-of-life care, became a crucial subject for interest groups across a wide political spectrum.
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