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Dr. Bob Kale, who was arrested at the July meeting of the Arkansas State Medical Board, has been at the center of a controversy surrounding pain management physicians in Arkansas.

In the world of Arkansas pain management, one of the most persistent newsmakers is a pain management physician who no longer even practices in the state. Dr. Bob Kale spent the past four years battling for what he calls the right to effectively treat patients suffering from chronic pain, a right he says the powers that be consistently try to thwart.

Early this year Kale regained his Drug Enforcement Administration certification, the final roadblock to returning to clinical practice after the Arkansas State Medical Board issued an emergency suspension of his medical license in 2002 for suspected overprescription violations. In March, Kale opened an urgent care clinic in Roland, Okla., just over the Arkansas border from his previous clinic in Fort Smith. Kale said the Oklahoma regulatory climate was "somewhat more enlightened" than Arkansas'.

Following his suspension, which he said effectively put him out of business, Kale began a series of grievances and legal battles with the board, board members, the board's expert witnesses, the DEA and even other pain management physicians in the state.

He was cleared of the overprescription charges, found guilty of an administrative violation, fined and given back his Arkansas medical license. It took 21 months longer to get his DEA registration reinstated so he could return to practice.



The Back Story

Kale has had a highly combative relationship with the Arkansas State Medical Board, even preceding his suspension. Two weeks before his suspension he called for board chairman Dr. W. Ray Jouett's resignation, citing a conflict of interest. He said the chairman's position as medical director for Tyson Foods pits Jouett, an advocate for the company and its workers' compensation interests, directly against the interests of chronic pain patients.

Board spokesman and legal counsel Bill Trice has repeatedly asserted the board's professionalism and objectivity.

At the time Kale was suspended, he'd had no patient deaths and no patient complaints. The complaint that led to his emergency suspension came from Dillard's, after he prescribed an expensive opioid for a chronic pain patient receiving workmen's compensation. He had kept clear and detailed records and had lectured on administering schedule drugs in today's highly regulated environment.

Kale said his administrative violation, Regulation 19, mandates an unrealistic level of care for a single physician clinic (it calls for an interdisciplinary team to be available for every patient) and that no pain management physicians in the state are in compliance. He has plans to file complaints against all other practicing Arkansas pain specialists to force the issue with the board.

But after clearing Kale of all overprescription charges, the board wrote a letter in support of reinstating Kale's DEA registration. The DEA announced it did not have to comply with the state's ruling and was conducting a separate investigation into the original complaint. Kale said the agency never contacted him regarding any investigation and later gave conflicting stories about the status of his case.

Kale enlisted the help of several United States senators. Almost two months after the DEA said they were going to deny his application, Kale got a call from a DEA agent in Washington, D.C., informing him he was approved.

Kale said that although DEA registrations typically take 14 days to arrive in the mail, the agent did not want him to have to wait at all. "She gave me the number over the phone said she wanted me to be able to call in a prescription right then if I wanted," Kale said. "After three-and-a-half years, all of a sudden they're in such a big hurry for me to write pain prescriptions that afternoon? They knew I wanted a hearing and they got scared."

Calls to the DEA were not returned by press time.

Their refusal to honor the board's ruling, combined with the Jan. 17 United States Supreme Court ruling for states' rights in the Oregon Death with Dignity case, form the basis of a current legal complaint he has issued against the DEA. He has filed for the actual damages due for the 21 months following the medical board's recommendation that kept him out of practice.



The Diversion Diversion?

In 2002 the DEA designated Oxycontin® use as the number one drug problem in the country. Kale said they did this even though statistics showed that methamphetamine was much more prevalently abused.

"In 2005 Karen Tandy, head of the DEA, walked in front of Congress and said, 'We have been successful in the war on drugs. For the first time since it was approved by the FDA, the number of prescriptions for Oxycontin has gone down.' She didn't say the number of deaths associated with it or the number on the street or diverted. She said the number of legitimate prescriptions has gone down."

Dr. Scott Fishman of the American Academy for Pain Management and chair of the Division of Pain Medicine at the University of California-Davis is working with the DEA to advocate a change in its prescription drug policies.

"There's no question that abusing the drugs that relieve pain in many patients is on the rise," Fishman said in a September 2005 telephone interview. "It doesn't mean that the abuse of those drugs in the patients we treat is on the rise. It means street abusers are switching from drugs that are illicit substances to prescription drugs."

Kale quoted a recent study that reported that 90 percent of diversion occurs before drugs reach the pharmacy, making the doctor/pharmacy/patient interaction a minor part of prescription drug diversion. He said doctors are safer to pursue than criminals stealing truckloads of drugs are.

"All you gotta do is harass and criminalize a few 'bad docs' like me who are trying to take care of our patients."

Kale said in June that he would speak as a defense witness at the board hearing of Dr. Randeep Mann in early July. Mann, a pain management physician in Russellville, made national headlines this year when the board suspended him for overprescribing charges they alleged resulted in the deaths of 10 of his patients.

The Arkansas State Police arrested Kale for disorderly conduct on Thursday outside the Board meeting. A police report said that Kale approached a state policeman in what was described as a "threatening manner." Kale was then handcuffed and ticketed.

The deaths were a result of other patient-driven factors, Kale said, and were likely suicides. Chronic pain patients have one of the highest suicide attempt rates and the highest suicide completion rate recorded.

Little Rock attorney Drake Mann (no relation) spoke on behalf of Dr. Mann. He said nearly all of the doctor's patient deaths were patients who unbeknownst to him were receiving additional prescriptions for larger or more frequent doses of the same or more powerful drugs.

"[The board's] investigative process is deeply flawed," Drake Mann said. It has a chilling effect on physicians who write prescriptions for controlled substances to see a physician charged with overprescribing despite the existence of the National Pain Care Policy Act of 2003, which is supposed to protect physicians providing palliative care.

He also said the board has a reputation for being "insensitive" to the legal standards it is charged with enforcing. Although the board is charged with disciplining physicians for grossly negligent or ignorant malpractice, the attorney said that they "appear willing to discipline physicians who are merely negligent, and they legally cannot do that."

Kale said Fort Smith's pain management doctors now call themselves 'interventionalists' to make it clear they will not write long-term pain prescriptions that could get them in trouble with the Medical Board or the DEA.

"They will write prescriptions long enough to keep someone going through their number of procedures — procedures they know aren't going to help — so they can make the money, but then they'll stop," Kale said. "The patient's pain's still there, but they're done with them."



The Long-term Prescription

"For every physician who writes any prescription for controlled substances," Mann said, "this is a continuing issue."

According to Kale, signs point to a looming medical and financial crisis of unprecedented proportions. He said that an estimated 50 million aging baby boomers taking Oxycontin at $100 to $200 a month would "utterly break the system."

Fishman said treating patients' pain has to come first. "We need to make treating pain a priority, and that means we need to educate everybody involved as early as possible," he urged. "We need to improve education in medical school, in residency and even require continuing education on pain management for practicing physicians."

The second priority, Fishman said, is making pain safe to treat. "If there is a hint that by treating pain aggressively you'll get in trouble with the law," he warned, "doctors will find reasons not to treat."

Kale said that in the three-and-a-half months after he opened his new clinic he saw more than 550 new patients seeking relief from their pain.

"It's not that I'm a 'parking lot prescriber,'" he said. "I'm on salary here, not making a lot of money." Every patient who walks in his door, he said, represents a risk the Arkansas doctors were not willing to take.

"It's simple," Kale said. "I'm their last and only hope."

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