Pain Relief Network

October 11, 2006
By: By David Adlerstein, Times City Editor
The Apalachicola & Carrabelle Times (FL)

His only mistake was trust — if that is a mistake at all …
So wrote Cheryl Spear, Dr. Thomas Merrill’s step-daughter, in a letter submitted in a July legal brief intended to temper the sentence soon-to-be imposed on the Apalachicola physician.
“This letter is a plea to please allow him to come home. Without him, we are not a complete family,” wrote Spear at the conclusion of her letter of support, one of many testimonials written on behalf of the 70-year-old doctor to Judge M. Casey Rodgers, but the only one included in its entirety within the text of attorney John P. Flannery’s brief.

“I could only imagine what terrible things could happen to someone in prison who is not a hard-core criminal,” wrote Spear.
Nonetheless on July 7 federal district judge Rodgers sent Merrill to life in prison for 98 counts, including illegally dispensing controlled substances with five cases in which a death resulted, defrauding health-care benefit programs and wire fraud.

Last month, Flannery filed a 25-page motion to the judges of the 11th Circuit of the US Court of Appeals, hoping to secure the doctor’s release from prison on bail pending his appeal.

“He’s not a risk of flight, he poses no danger to himself or others, and there are important issues on appeal” said Flannery in a telephone interview last month. “We’re hopeful that it will be granted. It’s a very difficult time for his family. It’s a real life sentence, particularly for a doctor at 70 years of age.”

The Leesburg, VA attorney is basing his appeal on many of the same legal issues he first outlined in his July filings, after he replaced Panama City defense attorney Jim Appleman as Merrill’s counsel.

Prosecutorial misconduct, insufficient evidence and ineffective assistance of defense counsel are all alleged in Flannery’s Sept. 20 motion for bail pending appeal, together with a litany of errors he argues were committed by the trial judge.

Flannery writes that Rodgers misapprehended the drug law in question, gave incorrect instructions to the jury, wrongly admitted “an avalanche of prejudicial and irrelevant evidence,” moved the trial to Pensacola “for its own convenience,” and dismissed an African-American juror without the lawful authority to do so.

About the only two things Flannery said he found proper in Judge Rodgers’ conduct was her decision not to follow prosecutor Steven Kunz’s recommendation that she seize up to five years of the doctor’s federal retirement savings, as well as her recommendation that Merrill be placed in federal custody as close to his family as possible.

“Dr. Merrill was a family physician, examining patients, making diagnoses, and writing prescriptions for controlled substances for the chronic pain conditions of his mostly underpaid working-class patients, who often had excruciating and unremitting pain arising out of their bone-crushing daily labors in and around Apalachicola, Florida, caused by work or traffic accidents, a surgery gone wrong, neuropathic disease, age, or some other cause,” wrote Flannery in his motion for bail. “Dr. Merrill’s world was shattered when he was charged with distributing drugs, when he truly believed he was addressing his patients’ pain, but the Government harshly disagreed, insisting that every one of those prescriptions he wrote were improper, and outside the course of professional conduct.

“With fair instructions and a trial limited to relevant evidence, the jury could have concluded that the patients that Dr. Merrill treated did require the medical treatment he rendered including the pain medication that he prescribed,” wrote Flannery, before outlining several dozen instances of patients whose medical conditions called for pain management.

“In this prosecution, ‘coincidence’ was wrongly treated as a ‘consequence’ of Dr. Merrill’s conduct,” wrote Flannery.

Shoddy Defense, Overzealous Prosecution Cited in Appeal

After replacing Appleman as Merrill’s attorney following the doctor’s Jan. 30, 2006 conviction, Flannery has in his legal filings zeroed on a number of questionable actions taken both by prosecuting and defense attorneys.
The name of Bay County Medical Examiner Dr. Charles Siebert, who became known throughout the state earlier this year for his questionable assertion that a 14-year-old African-American youth died from “sickle cell trait” after enduring a beating by guards at a Panhandle boot camp, surfaces in Merrill’s latest filing.

Flannery contends that Kunz “flatly misled the court as to the evidence at trial and prejudiced Dr. Merrill” and cites as one example the prosecutor’s mention in his summation of an autopsy report filed by Siebert in August 2003 on one of Merrill’s patients. Flannery termed Siebert “incompetent” and contended there was evidence that medical examined had “misidentified a decedent as a male when she was not, and found organs that the decedent had had removed.”

Flannery also has taken issue with Merrill’s defense counsel, questioning why the attorneys did not call Jack Osburn to testify on the doctor’s behalf.

“Jack Osburn, a law enforcement officer and a patient of Dr. Merrill, knew of the efforts of Dr. Merrill to rid his practice of addicts, as opposed to pain patients, and what Dr. Merrill did to assure himself that he was practicing medicine,” wrote Flannery.

“Officer Osburn helped to create a Drug Task Force for the City of Apalachicola. Officer Osburn also helped to remove from Dr. Merrill’s office those patients who were “doctor shopping” for medication, and did not truly have chronic pain,” he wrote. “Jack Osburn also knew of an undercover who tried to entice Dr. Merrill to deviate from his medical practice, and to write prescriptions for the wrong reason, but to no avail; Dr. Merrill did what was right.”
Flannery contends in his filings that the judge erred in moving the trial from a county nearby Franklin, either in Bay or Leon, to Pensacola two and one-half hours drive away.

“Panama City where this case was properly sited, draws upon six counties for its jury (pool), from a rural population, that the prosecution might fairly consider more favorably disposed to defendant who comes from that community; and, as there is a representative population of working men and women who suffer from chronic pain, they might have been more resistant and more aware in response to the government’s rhetorical dodges about the prescription of pain medication,” wrote Flannery.

“The trial court could, in the alternative, have transferred the matter, if it had to do so, to Tallahassee, a city closer to the community and to the witnesses where this offense originally was sited, as the distance from Panama City to Tallahassee slices at a right angle through the region making access from any point more easily accessible for the defendant and for witnesses,” he wrote. “However, the prosecution resisted this choice, no doubt because of its perception that the more college-educated (jury pool) would not be as easy a mark for their rhetoric either.”

Flannery is arguing that the prosecution “preferred a jury pool drawn from four counties in the westernmost reach of Florida running from the Gulf of Mexico to Alabama, in Pensacola, where the trial court ordinarily sits, that local counsel characterize as more conservative and more likely to favor the government…. The burden in time and cost and witness preparation was daunting, not to mention what the jury pool meant to the outcome.”

The defense attorney contends that Merrill’s prosecution overstepped its bounds when it asserted at the trial that 33,340 prescriptions written by Merrill over four years of medical practice, which encompassed all 1,100 of his patients, and totaled 83 million milligrams of prescribed medicine, 81 percent of which was for controlled substances, and prompted millions of dollars of third party insurer charges, accounted for several patients’ deaths and proved that he was “a drug pusher with a medical license.”

Flannery contended that “Not only was 98 percent of this alleged bad conduct not charged, neither was it proven, not by any medical chart, nor patient’s testimony, nor any expert witness. The ‘evidence’ was offered to confuse the issue, to mislead the jury, and to inflame the proceedings, by attacking impermissibly Dr. Merrill’s character.

“We have a pandemic of undertreated pain patients, because the government disapproves of opioids,” wrote Flannery. “And we have a physician, Dr. Merrill, who stands wrongly convicted for trusting those he treated, and for expecting better treatment for himself from his government that only sought to make him an example to chill other physicians who would ease pain.”

Friends, Colleagues Voice Support for Merrill

A number of friends and colleagues stepped forward to submit letters of support, in addition to his stepdaughter and stepson, and his wife, Charlotte.

Nurse Wendy Pate wrote that she had known Merrill for 25 years. “In that time he has been a mentor, friend, and health care provider,” she wrote. “I have found the recent headlines describing him as ‘greedy’ extremely disturbing. I have always known Dr. Merrill to be a kind, compassionate and caring human being.”

Nurse Annette Blythe, a licensed nurse, credited Merrill with saving her husband’s life, by diagnosing what other doctors had been unable to detect, her husband’s hepatitis. She also wrote that Merrill provided her and her family with a home, rent-free, for three months after her home burned.

Randel Bell, of Apalachicola, wrote that prosecuting Merrill was “fiscally irresponsible” of the government, while Panama City physician Dr. Kamel Elzawabry spoke of the great following that Merrill had in the Panhandle area because he was “known to be compassionate and loving and perhaps because of his compassion he has prescribed pain medication in excess of the usual standard.”

Bruce Hall, of Apalachicola, a retired nurse anesthetist, wrote a two-page letter in support of her neighbor and colleague, who she said did not live a flamboyant lifestyle, “was not in the least bit materialistic” and was known for treating those who could not afford health care at no charge.

“Dr. Merrill loved practicing medicine and helping others with a need for his skill,” wrote Hall. “He lived and breathed it. He is ‘old school,’ the best kind. He entered medicine at a time when that was the norm – you dedicated your life to it you didn’t just do it for the money.”

Merrill also received letters of support from Panama City physician Dr. Douglas Stringer, health care administrator Ken Dykes, Panama City physician Dr. Victor Ortega and several former patients and providers who knew him.

Merrill’s own words, presented to the judge prior to sentencing, offer a powerful indication of what may have motivated the doctor’s practice pattern.

He wrote of his sister, Shirley, who was five years older, who “had an enormous influence on my choice of medicine as a profession – although she never suggested that I become a doctor. My mother had to be hard, as we had tough times, and, despite her hardness, she had a heart of gold, with a touch of gullibility.”

The following is Merrill’s own words as to what happened in his family’s life when he was a teenager:

“When I was 15, it was 1952, and I was about to leave our house to deliver papers, I noticed that my older sister, Shirley, was just lying there, and not breathing. She seemed so still. At first I couldn’t believe my eyes. As it turned out, she never did breathe again. She died that night in her sleep.

Sure, we had known of a doctor’s diagnosis that she had a brain tumor; it had been discovered while she was attending nursing school. It was my awful task to tell my parents what I had discovered.

My mother took it the hardest. I had often helped my mother hold my sister’s head when she was in severe pain… because holding her in that way appeared to give my sister some relief from the pain. No one could tell us why it was effective; it just was.

No matter what we did, before my sister’s death, from time to time, without any pattern we could discern, I would hear my sister cry out in pain. It was horrific.

Of course, as distressing as it was to hear her cry out in pain, it was worse to see her lying there, silent, unable to talk or be herself, or, in the end, just to be with us ever again. After the funeral, my mother never said my sister’s name again. Her memory hurt that much.

I resolved that I would try to do what my sister set out to do, in nursing, to help others, perhaps the way my mother and I had helped my sister. I didn’t know at first, only that I wanted to make a difference, to ease the pain of others.”

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