Guilty verdict in opioid over-prescription case – an analysis

“If the whole material medica, as now used, could be sunk to the bottom of the sea, it would be all the better for mankind—and all the worse for the fishes.”

– Oliver Wendell Holmes, Sr. in an 1860 lecture to the Massachusetts Medical Society.

By Carlotta Grandstaff

Criminal trials are not common occurrences in Ravalli County. And lengthy criminal trials, complex trials with a local doctor on trial for doing harm, trials with well-matched legal opponents, one the teacher to the other, high-dollar trials with sympathetic, powerhouse witnesses, are rarer still.

So it was surprising that when the trial of the State of Montana versus Dr. Chris Christensen opened in mid-October the courtroom was virtually empty of spectators, other than the usual suspects: reporters, cops and lawyers.

On trial was Florence physician Chris Christensen, charged with 22 felony counts of overprescribing opioids to 11 people – patients to the defense, victims to the prosecution.

As one patient/victim after another took the witness stand, a terrible story of pain emerged – physical, spiritual, emotional and mental – haltingly and tearfully in some cases.

In all eleven cases, Christensen wrote prescriptions for powerful and dangerous opioids for non-cancer health complaints, such as back pain, sciatica, rheumatoid arthritis, heart murmur, a bad knee, in one case for a large scar on the back. In many cases, he wrote prescriptions for whatever his patient wanted, believing the lies they told to get opioids in some cases, but rarely conducting physical exams, ordering diagnostic tests or referring to other physicians when cases became too complex or difficult. Patients received several opioid prescriptions from the same visit, or in visits closely scheduled together. His record keeping was unorganized, his medical charts dangerously incomplete.

The misery of the human condition was presented to the jury in all of its terrible tragedy: addiction and dependency, suicide, chronic pain, accidents, bipolar disorder, unemployability, poverty, alcoholism, physical abuse and neglect, overdose, untimely death. Christensen treated these complaints with methadone, Xanax, Dilaudid, benzodiazepines, oxycodone, Adderall, often as the first line of treatment to patients with whom he had little or no doctor-patient relationship, and often in high doses.

The story of an egregious abuse of trust by a doctor of his patients unrolled slowly and methodically by Ravalli County Attorney Bill Fulbright and his deputy, Thorin Geist. Christensen was defended by Josh Van de Wetering, a former federal prosecutor, who appeared to base his case on the old adage, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” But he was also an aggressive bulldog of an attorney, and was aided by Jessie McQuillan, founder of the Montana Innocence Project and its past executive director, now a private investigator.

Even so, from the beginning, the trial belonged to the low-keyed prosecution. If one word could sum up Geist’s impressive prosecution it is this: prepared. The delays in bringing the case to trial clearly worked for Geist, who had the time to develop the facts of the case and to present those facts succinctly and methodically. In his opening statement, Geist eschewed the typical soft introduction lawyers sometimes use to put the jury at ease. Rather, he walked crisply to the podium and without introduction, simply stated, “First, do no harm.” From there, it was the prosecution’s case to lose.

Geist presented a near-flawless opening in which he outlined the case, one victim at a time, one opioid at a time. Neither Geist nor his boss, Fulbright, lost their composure at any time during the trial. Geist appeared to have learned well under his former law school professor Van de Wetering.

Van de Wetering poked a lot of holes in the prosecution’s case, though ultimately they proved to be small, Swiss-cheese holes that were neither large enough nor numerous enough to shred the fabric of the prosecution’s case. He mounted an impressive defense, but ultimately he didn’t have much to work with.

Christensen took the witness stand in his own defense, and proved to be a genial witness to his attorney’s softball questions. Under Geist’s more pointed and relentless interrogation, Christensen turned truculent and refused to answer simple yes or no questions with a simple yes or no. Instead, he repeatedly led Geist down a rabbit hole of rambling, hostile answers. Geist remained unflappable. He clearly got under Christensen’s skin, but Christensen never got under his.

As the trial entered its third week, Christensen’s supporters began to fill the pews in the courtroom joining his wife and daughter: people on canes and walkers, Mennonite families with numerous children in tow. Occasionally, the damning testimony against Christensen would elicit a soft cry of protest, which went either unheard or ignored by Judge Jeffrey Langton.

The charges against Christensen resulted from a law enforcement investigatory task force comprised of the Drug Enforcement Agency, the Ravalli County Sheriff’s Office and the Missoula Police Department. His Florence clinic was raided in April 2014. On the eve of his trial, the Washington Post and “60 Minutes” presented the findings of their own joint media task force. They found damning evidence that members of Congress and major drug distributors banded together to pressure the DEA and the U.S. Department of Justice to weaken laws designed to slow the deadly flow of narcotic painkillers into American communities.

Despite the terrible toll prescription opioids have taken on the nation’s health, the pharmaceutical industry itself was on trial only briefly with the defense testimony of Los Angeles pain treatment physician Dr. Forest Tennant.

Tennant, who bore a slight resemblance to the actor Jimmy Stewart, testified that he opened a pain clinic in Los Angeles in 1975 when opioids were more tightly controlled and when doctors needed special training to prescribe. By 1982, he said, it was “gospel” that chronic pain should be treated first without powerful drugs like opioids. But that changed and between 2001 and 2016, it was a “pretty much anything goes” prescription drug culture that gave doctors license to prescribe any opioids in any dosage to any patient for any condition. By 2016, he said, with alarming numbers of prescription and illegal opioids deaths, that had turned around, and the medical community began returning to pre-1982 standards of treatment for chronic pain, which relied more on physical therapy and anti-inflammatory medication as a first response, rather than opioids.

“I guess society had to try (opioids),” he said. “I guess it didn’t work.”

Tennant testified that he disagreed with the free and easy reliance on opioids as an initial treatment for chronic pain, but days after he testified for the defense he also found himself in the same hot water as Christensen when his own home and office were raided by the DEA, which was investigating him, too, for over prescribing opioids and for taking kickbacks from Insys Therapeutics, an Arizona drug manufacturer under federal investigation. He turned out to be less than a star witness for the defense when he admitted on the witness stand that, in a pre-testimony phone conversation with Fulbright, he called Christensen’s treatment plans for the 11 patient/victims “laughable” and “atrocious,” and his record-keeping “deficient.” Even Christensen, at one point in his testimony, disagreed with his own key witness.

Van de Wetering built his case around the claim that his client was a compassionate physician who treated chronic pain when other doctors would not, a physician who simply followed the prescription standards every other physician was following at the time. “Life ain’t easy,” he said. The cases were complex and difficult, and his client was only doing what every other doctor was doing – or would not do.

Fulbright responded to that, saying that caring for patients did not constitute “giving them opiates the first time out and saying, ‘there, I treated you’.” And, he said, sometimes compassion means saying no.

Van de Wetering seemed to cross a line when, in his closing argument, he referred to the 11 patient/victims as “liars and criminals.” The mother of one of the patient/victims who died under Christiansen’s care, Sharon Griffin, who cried when she testified that she had to pull her son Gregg’s dead body from a couch on to the floor to apply CPR – unsuccessfully, as it turned out – while awaiting paramedics, was in the audience when Van de Wetering made that comment. Her feelings on hearing her dead son referred to as such can only be imagined.

The case went to the jury about 3 p.m. on Thursday, November 16. They deliberated all day Friday, November 17, took the weekend off and returned with a verdict at 10:30 Monday morning: guilty on all 22 counts of three separate charges: two counts of negligent homicide for the deaths of Griffin and Kara Philbrick-Lenker; 11 counts of distribution of dangerous drugs; and nine counts of criminal endangerment.

Barring the filing of an appeal, sentencing will take place December 27.