18 Mar

In the words of President Ronald Reagan, “the…inescapable truth is: government does not have all the answers. In too many instances, government does not solve the problems: it subsidizes them.” Truer words have never been spoken, words which played out in a small rural courtroom the past two weeks as Dr. James “Dusty” Chaney finally had the opportunity to tell his decade long story of government overreach, overreach which cost him his medical license, his freedom, and most importantly, his reputation.

Dusty’s story has its origins in the war on pain clinics which was launched by federal prosecutors who were self-ordained experts of what was good for the treatment of chronic pain. Although these federal prosecutors were void of any medical training, their investigations and prosecutions were based on their own incorrect definition of which prescriptions were “issued for a legitimate medical purpose by an individual practitioner acting the usual course of his professional practice.”

As the result of a years long investigation of Dusty, an investigation which had its genesis with the use of Kentucky’s All Schedule Prescription Electronic Reporting (KASPER) system, Dusty soon learned that no matter how much he did, the federal government was determined to prosecute him. The federal agent involved in spearheading the investigation authored a lengthy search warrant affidavit where he claimed that the information he reviewed of Dusty’s KASPER reports, reports which he claimed were “reliable and accurate prescription drug monitoring information [at Dusty’s clinic]… [were] prescriptions [which] were believed to have been distributed for other reasons than legitimate medical necessity.” The only problem with these statements is that the KASPER reports were not reliable as a result of the conduct of individuals at CVS and Rite Aid pharmacies in Eastern Kentucky, nor did Dusty write any prescriptions at his clinic as claimed by the federal investigator in a sworn affidavit.*

For those who have been involved in federal investigations, one thing is certain, and that is that oftentimes once a federal prosecutor and federal investigator have invested months of their time in an investigation which has a false premise, the investigation and prosecution takes on a life of its own like a runaway train heading toward the next station without brakes. For months, Dusty and his defense team attempted to get the federal prosecutor to understand that his theory of the case was flawed and was told that there was information being developed that many of the so-called reliable and accurate KASPER records were not reliable and accurate, let alone did these records reveal that Dusty wrote any prescriptions at his clinic.

Fast forward and in 2014 Dusty was indicted in a complex federal indictment which accused him of being a drug dealer. Although the indictment was flawed, after more than a year of preparing for trial, on the morning of trial Dusty was offered a plea deal which left him with a Hobson’s choice of either entering a guilty plea to a money laundering charge under a theory of being willfully blind to the operation of his clinic, or risk being convicted of multiple drug counts which were based on unreliable evidence and the testimony of agents who claimed to be experts in the operation of pain clinics. Dusty’s choice that morning was to take the plea offer, an offer which resulted in the loss of his freedom for 30 months in federal prison, the loss of his medical license, and the loss of his once unblemished reputation as one of the best doctors in Eastern Kentucky.

As a result of a belief that incorrect information was being reported by the pharmacies was not only inaccurate, there was information revealed that the pharmacies were misattributing prescriptions which were being written by other providers to Dusty’s KASPER reports. As a result, a lawsuit was filed against the pharmacies in 2015, a lawsuit which would finally allow Dusty to tell his story to his community as his civil lawsuit was recently heard in a small courtroom in the mountains of Eastern Kentucky.

One of the most stunning events of the case was that during a deposition of the federal prosecutor in December of 2022, a deposition which had been arranged by counsel for CVS, the federal prosecutor refused to admit that he had made a mistake and insisted that the inaccurate KASPER reports had nothing to do with his prosecution. Even more stunning was when Dusty’s trial team attempted to cross-examine the prosecutor at the deposition, the prosecutor refused to answer any questions, and in essence, the prosecutor and the government’s attorney who attended the deposition, refused to allow any cross examination, and in essence suggested that they weren’t subject to any rulings of the state court judge. Several attempts were made to obtain permission to either depose or have the prosecutor attend the trial, all of which were rebuffed by the head of the office.

To borrow from Paul Harvey’s famous radio program “The Rest of the Story,” Dusty’s story recently played out during a two-week trial where a local jury learned that pharmacy documents had been withheld from Dusty and his trial team, and that documents from the original investigation had never been provided to his defense lawyers during the federal prosecution. Most importantly, the jury was provided with an opportunity to watch the videotaped deposition of the federal prosecutor, a videotape which evidenced the government’s investigation and prosecution of Dusty, a prosecution which was a runaway train, was what could best be described as a prosecution which evidenced a win at all costs mentality, a mentality which should never enter into a decision to prosecute a citizen, a decision which ultimately could result in the citizen’s loss of freedom and reputation.

After more than a decade long nightmare, the jury finally gave Dusty an opportunity to regain his reputation, possibly his medical license, and his ability to once again provide the amazing medical care he was known for as he treated hundreds of folks from the mountains of Eastern Kentucky. After a two-week trial, a trial which exposed the dirty underbelly of a sometimes broken system, a jury issued a verdict for Dusty, a verdict that sent a resounding message to the pharmacies, and in a small part the government prosecutor, that it was time for Dusty’s nightmare to end. The jury verdict also sent a loud message that it was time for Dusty to get back to work doing what he did so well, and that was caring for the people of his community, a community that deserved better than what was dealt Dusty for a decade.

In the end, Dusty’s story should never have been one of “Justice delayed, justice denied.” In the end, no amount of money will ever restore Dusty’s life, however, one could only hope that the federal government learns from Dusty’s case and takes some action to remedy runaway prosecutions, prosecutions which are driven with a win at all costs mentality. Thanks to a jury of Dusty’s neighbors, justice has finally been discovered in a small courtroom in the mountains of Eastern Kentucky.

On June 27, 2022, in Ruan v. United States, a unanimous Supreme Court finally rejected the government’s long standing position that it could decide what prescriptions were or were not authorized. In doing so, the Supreme Court held that once evidence is provided that the prescription was “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice,” the burden is on the government to prove beyond a reasonable doubt that the practitioner acted in an unlawful manner.

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