Prisoner Of Pain

The same judicial system that prosecuted Richard Paey for obtaining too much pain medication is now supplying him in prison with more than that amount to ease his tremendous pain.

60 Minutes correspondent Morley Safer reports on this case, in which an accident victim's quest to medicate his pain ran afoul of drug laws, this Sunday, Jan. 29 at 7 p.m. ET/PT.

A long-ago car accident and failed spinal operation put Paey in such severe pain that only escalating amounts of opiate medication could relieve it.

"As I got worse, I developed a tolerance also with the medication and so I needed larger doses," says Paey, who describes the pain as burning in his legs. "It's an intense pain that, over time, will literally drive you to suicide."

Paey, who also suffers from multiple sclerosis, did try to commit suicide at one point.

After moving to Florida with his wife and children, Paey says doctors there were wary of prescribing the amounts of pills he needed as that would draw the attention of law enforcement. So he persuaded his longtime New Jersey doctor to continue prescribing his medication in the high amounts necessary for relief. The doctor agreed to fax and mail prescriptions and sometimes verified them to pharmacists.

Paey's frequent refills did draw attention and, before arresting him for drug trafficking, the Drug Enforcement Agency visited his New Jersey physician, Dr. Stephen Nurkiewicz. When confronted by agents about the number of pills Paey had purchased — 18,000 in two years — Nurkiewicz rescinded initial statements of support for his former patient and said Paey was forging prescriptions.

"In Richard Paey's room ... were the raw materials to make prescriptions," Florida State Prosecutor Scott Andringa says. "They found a lot of documents that suggested forging prescriptions."

They also found 60 empty bottles of pain relievers, some of which surveillance teams had watched Paey purchase. Andringa says there was no evidence that Paey was selling his drugs, "but it is a reasonable inference from the facts that he was selling them, because no person can consume all these pills."

Paey, confined to a wheelchair, is now serving 25 years in a Florida prison. A jury convicted him of 15 counts of prescription forgery, unlawful possession of a controlled substance, and drug trafficking. He had the choice of entering a guilty plea in exchange for no jail time but, for him, that was no choice, says Paey.

"Had I accepted a plea bargain and carried that conviction on my record, I would have found it near impossible to get any medication," he says. "I didn't want to plead guilty to something that I didn't do."

Paey denies selling his medication, saying he took and needed all 18,000 pills. This scenario — 25 pills a day — is plausible, says Dr. Russell Portnoy, chairman of the Department of Pain Medicine at New York’s Beth Israel Hospital.

Once acclimated to a drug, patients can regularly take what would be lethal doses to ordinary people, Portnoy says.

"It really sounds like society used a mallet to try to handle a problem that required a much more subtle approach," says Portnoy. "If they had taken this man who had engaged in behaviors that were unacceptable and treated it as a medical issue, it seems like this patient would have had better pain control and a functional life instead of being in prison."

Andringa disagrees. "This case is not about pain patients, it's just not. This case is about prescription fraud. We were very reasonable in this case. But once somebody says, 'I'm not going to accept a plea offer however reasonable it is …' "

Paey gets all the medication he needs now, in larger doses than he was taking before, from the state through a pump connected directly to his spine. He is appealing his conviction.

"Uh-huh. They convicted him of 15 counts of prescription forgery, unlawful possession of a controlled substance, and drug trafficking. In Florida. I'd say they had a pretty good idea that the sentence would be severe."

That's what you think. I talk to jurors all the time after trials. These people do not tend to know much about laws. It may seem to you that everyone should know this stuff, but most people never think about all this nonsense. They aren't arguing about drug laws on freerepublic day in and day out like you. They could care less. They just expect the system to be fair and produce fair results. I've talked to a lot who were surprised at what the minimum sentences ended up being, or even that there were minimum sentences. People tend to think that the court can give whatever sentences they want and they hope that the court will use good sense in how sentences are imposed. And when it comes right down to it, their job in the guilt phase of the trial is not to worry about what the possible sentences are. Their job is to decide whether they believe the prosecutor has proven each and every element of the charges beyond reasonable doubt.

"Neither do I, but how much can it be when the alternative is 25 years in the slammer? Like, "Gee, I can't do three years of house arrest. Give me 25 years in prison instead"?"

This is where I suspect the defense attorney dropped the ball as far as plea negotiations go. The prosecutor is quoted as saying, "We were very reasonable in this case. But once somebody says, I'm not going to accept a plea offer however reasonable it is … " Apparently, when they rejected the initial offer the only other offer they ever got was five years in the pen. My guess, and I may wrong, is that this guy's attorney was a jerk to the prosecutor when he rejected the initial offer. Otherwise the offer wouldn't normally have gone from house arrest to five years in the pen. I never tell the prosecutors that my client absolutely will not accept a plea offer no matter how reasonable it is, even if my client said he won't. People say things they don't mean, and they change their minds. If my client tells me that the prosecutor can kiss his you know what and stick his offer up you know where, I'm not going to pass it on to the prosecutor exactly like that. I'll use a little tact, and try to keep the door open for a plea, because it may turn out that later on in the case as I look through all the evidence that comes in that my client absolutely needs to plead.

If I have a doctor saying my client forged the prescriptions along with other evidence to support that, I'm having a long hard talk with my client. He's going to know that I think he will be convicted, and he's going to know what kind of sentence he is potentially facing, and if he still wants to go to trial he's going to sign an affidavit showing that I've laid out the facts against him, informed him of the offer, advised him to take it, but that he still wants to go to trial knowing he'll probably get convicted and go down for a long time. I can't force him to plead, but I will sure try to convince him that he needs to plead if all the evidence is against him and the offer is better than what I think he'll get at trial. Often that is the best thing I can do for my clients. Some lawyers haven't figured that one out yet. They don't realize that they are doing a terrible disservice to their clients if they don't use a little "tough love" when it is warranted. They end up taking a lot of cases to trial that should never have made it that far, and their clients end up paying the price for their negligence. A good lawyer knows which cases are losers and which cases are winners. He avoids taking the losers to trial, especially when losing at trial will cost his client dearly.

This case never should have gone to trial. Perhaps the client and his attorney thought they'd prevail on the trafficking charge, but the risk was too high. If it were my case, I would have probably tried like crazy to get the prosecutors to drop the trafficking charge and convince my client he needs to plead on the prescription fraud charges.

Again though, we're just guessing about what really happened. We don't know. We've just read an article or two. We can't possibly get all the facts from a couple of articles. My experience at least has been that a lot of what comes out in the media about court cases is wrong anyway. I've done all the second guessing and pontificating and back seat lawyering I care to do on this one. I'd just as soon not argue with you about it anymore. If you didn't get so hateful and nasty with your comments it might be fun to talk about it. But you suck all the fun out of it for me.

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