Jerrold N. Rosenberg, MD, 62, a board-certified physiatrist in North Providence, RI is another physician who has been charged with a crime where there is no crime. Physiatry, or physical medicine and rehabilitation is a specialized branch of medicine treating pain from injury, illness or disablity.
Dr. Rosenberg had a 19-count indictment in Feb, 2017 for health care fraud and taking kickbacks for prescribing Subsys, a quick-acting form of fentanyl that’s sprayed under the tongue. It begins working in as little as five minutes, which is useful for patients who experience sharp quick bursts of breakthrough pain. It has FDA approval for use with cancer pain. But records show that only 1 percent of prescriptions for the product are written by cancer specialists. So the standard practice of using what is best for the patient, and off-label prescribing is still active and should not be labeled as criminal. There are many reasons why a doctor would choose Subsys for breakthrough pain, one of which could be to help cut down on drug diversion.
The government is trying to create a crime here for off-label prescribing which is done all the time and is not a crime. It costs millions of dollars to get a drug approved by the FDA. Usually a drug is tested for one problem. But once it is approved, doctors often prescribe it more broadly. Neurontin, for example, was approved for seizures. But it is now used for multiple purposes, including pain, which have not been put through the FDA approval process. Subsys was approved for breakthrough cancer pain, but pain is pain. You can’t start charging one off-label use as a crime simply because it’s an easy kill in the court.
Rosenberg is accused of falsifying documentation to insurance companies, claiming patients had cancer when the cancer was supposedly gone. Now anyone who believes that cancer is cured with conventional treatments such as chemo and radiation is a fool. Cancer can be beaten down for a while, but it WILL return–because the treatment does not address the cause, and usually actually increases the body’s proneness to develop cancer. Besides, once a patient has a diagnosis of cancer, it is reasonable for any doctor to use that diagnosis on the record. Dr. Rosenberg’s using that diagnosis for insurance payment should not be considered fraud or criminal. The seriousness of the patient’s condition (and cancer can return at any time) is a point that is allowed to be considered when determining the level of the visit. And whether cancer is currently present or not has nothing to do on any resulting pain from the condition.
Now another attempt by the government to create crime where there is none is in the charges of kickbacks. Dr. Rosenberg is charged with receiving $180,000 in speaking fees from June 2012 to July 2015 for the company Insys, producer of Subsys. The government is trying to make that fraud. First, they state that Rosenberg is described in the indictment as “far and away the biggest prescriber of the fentanyl spray in Rhode Island.” Then they allege that the payment for speaking was a kickback for prescribing the drug. The government is playing on the ignorance of the standard juror. Being chosen to be a speaker for a drug company occurs AFTER the doctor has shown that they have reasons for prescribing the drug. I was chosen to be a speaker for Kadian, an extended release opioid, but only because I appreciated its abuse deterrence and I prescribed it frequently enough for them to take notice, ask me why I liked Kadian, and offer me a speaker’s bureau position. Drug companies don’t go to doctors and say “We’ll pay you to prescribe our drug.” But they do need experienced doctors to go out and explain to other doctors how to use a new drug. This is standard practice, and is not a crime.
In my opinion, this attack on Dr. Rosenberg is simply government targeting of an older doctor to achieve forfeiture and reimbursement of all of his government insurance claims. This is standard MO for the DOJ, and now states are modeling their practices after it. I hope that the people of Rhode Island learn the truth that these “charges” are not criminal, but common medical practice, and that the stigma of opiophobia is driving these crime creations by the government since the jury would convict based simply on propaganda.
Charles A. Tamuleviz, representing Rosenberg, said that “Dr. Rosenberg believes now, and he believed at the time (that)–he exercised appropriate care and treatment for his patients at all times.”