Pain Treatment Act may derail Smith case

LOS ANGELES There were strong suggestions from the judge Thursday that some charges may be dismissed. This comes with testimony from an expert witness going to heart of the case: How much medication is too much?

Anna Nicole Smith complained of pain in her back, her legs, her abdomen. How bad was it? How does a doctor determine pain levels?

"There is no objective test, no laboratory test, no imaging study that can be used to determine either the presence or absence of pain, or intensity of pain," said Dr. Perry Fine, an expert witness in the trial.

Fine is president-elect of the /*American Academy of Pain Management*/, an advisor for medical boards across the nation.

Fine's testimony defends Smith's doctor, Sandeep Kapoor. The internist prescribed high doses of sedatives and pain medication for Smith.

Now, along with two codefendants, he faces six felony counts for supplying excessive medication to an addict.

Yet Fine says some patients need a lot of drugs for pain treatment.

"It is hugely variable," said Fine. "There is tremendous variation from one individual to another, even up to 50, even 100 times in some circumstances."

That assertion is part of the California Medical Board's standard of care.

Outside the presence of the jury, the judge referred to the document from the state legislature. It says that the /*California Intractable Pain Treatment Act*/ was created to protect physicians from being disciplined solely because of the amount of controlled substances prescribed. It called some terms of the act outdated and confusing.

"The more I read this, the more difficult it is to proceed in this case as a criminal prosecution," the judge in the case said Thursday.

As he plans hearings to review the matter, the court released photos of Smith that raise another issue about medical standards. The photos depict psychiatrist Dr. Khristine Eroshevich in a whirlpool tub with Smith.

The prosecution says it shows a violation of professional boundaries. Eroshevich's defense attorney says it happened when Smith was suffering from mood swings, and that it was innocent play.

Prosecutors are not alleging a sexual relationship.

More is expected about the possible dismissal of some of those charges in the coming weeks.

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