SWALLOWING THE WRONG PILL Criminal Drug Diversion By Physicians and Other Medical Professionals A Prosecutor s Perspective

Transcription

1 SWALLOWING THE WRONG PILL Criminal Drug Diversion By Physicians and Other Medical Professionals A Prosecutor s Perspective I am a federal prosecutor in Seattle, Washington. Within the last two years, I have participated in the prosecution of several area physicians and other medical professionals for criminal conduct committed in their professional practices, and involving the unlawful use and diversion of controlled substances federal crimes. A review of the criminal conduct of several area physicians serves to illustrate the nature of the on-going problem. Each of the doctors, whose conduct is described below, has suffered greatly as a result of their criminal cases. They have been exposed to imprisonment, periods of probation, and criminal fines. They have had their DEA registrations suspended or revoked, been subjected to state disciplinary proceedings, including loss of license, and been the focus of much media attention. Their professional careers and their economic livelihoods have been greatly impacted. This article is written with utmost respect for the medical professional, and with an awareness of the arduous training and expense involved in becoming a physician, nurse, or pharmacist, and the importance of such medical professionals in our society. Moreover, there is nothing noteworthy about the fact that the persons whose conduct is described herein were practicing in the Seattle area. The problem described is national in scope, being committed throughout these United States, and the conduct is unlawful under federal law wherever committed. The purpose of this article is to educate, so that practicing medical professionals, to include physicians, pharmacists, and nurses, are aware of the law and of the legal peril in which they may find themselves should they engage in such misconduct. Further, the conduct described in this article is not meant to be an exhaustive list of all manners of criminal conduct in which a physician or medical professional may engage. Rather, it is emblematic of the types criminal conduct undertaken and the consequences of that conduct. It is earnestly hoped that by reading this article, physicians and other medical professionals may do well to avoid such transgressions in their practices and professions. Page 1

2 At the outset, it is noted that all of the conduct set forth below involved a physician who violated his or her Hippocratic oath as a physician, in addition to violating the law. Further, each instance of unlawful conduct involved the illegal use and diversion of drugs -- either through theft, tainted prescriptions, splitting prescriptions with patients, or some other unlawful method. In discussing these several cases, the doctors involved will be referred to by letter only, rather than by name, as no instructive purpose is served by mentioning their names. The investigating agencies were the Drug Enforcement Administration and Washington State law enforcement. Doctor A Doctor A was a psychiatrist in Seattle, Washington. Dr. A maintained an active practice and treated a number of psychiatric patients. Dr. A abused his authority as a psychiatrist, and violated the law, by having several of his patients acquire controlled substances for Dr. A, by misrepresentation and deception, which Dr. A thereafter consumed. Dr. A accomplished this by writing prescriptions in the names of patients, including prescriptions for oxycodone and hydrocodone, Schedule II and III controlled substances, and then had the patients fill the prescriptions and return the pills to Dr. A, who took possession of the pills, and later consumed the pills himself. The patients received monetary compensation and/or drugs for filling the prescriptions for Dr. A. Over time, Dr. A corruptly obtained hundreds of pills in this manner from a number of his psychiatric patients. At the time he wrote the prescriptions, Dr. A knew he was obtaining controlled substances by deception and subterfuge. Dr. A was convicted of the felony offense of acquiring a controlled substance by deception and subterfuge, Title 21, United States Code, Section 843(a)(3), a felony violation of the Controlled Substances Act. Doctor B Dr. B was a surgeon in Seattle, Washington. Dr. B was affiliated with two major hospitals. Over the course of several months, Dr. B met with personal acquaintances of his and delivered to those persons blank prescriptions scripts, knowing and intending that his friends would forge those scripts to unlawfully acquire quantities of oxycodone, a Schedule II controlled substance. Dr. B came Page 2

3 into possession of the scripts through his work, and the forms bore the printed labels of both hospitals. In addition to providing scripts, Dr. B provided his friends with the names of multiple doctors to use in forging the prescriptions, as well as DEA numbers to be used in completing the forms. The scripts were later forged by his friends to authorize the dispensing of 60 pill quantities of 80 mg. oxycodone, and filled at local pharmacies. The oxycodone obtained through the forged prescriptions was consumed by his friends and sold to others on the streets of Seattle. In providing the scripts to his friends for this illicit purpose, Dr. B knowingly and intentionally aided and abetted others in acquiring a controlled substance by deception and subterfuge. Dr. B was convicted of the felony offense of acquiring a controlled substance by deception and subterfuge, Title 21, United States Code, Section 843(a)(3), a felony violation of the Controlled Substances Act. Doctors C and D Dr. C was a board-certified anesthesiologist who operated a skin treatment clinic in Seattle, performing chemical and injection-based cosmetic treatments. Dr. D was a dentist in Seattle with an active practice. Drs. C and D were friends who resorted to a number of illegal means to unlawfully acquire hydrocodone for further abuse. On multiple occasions, Drs. C and D independently phoned in hydrocodone prescriptions in the name of their patients, and then had the patients pick up the drugs and return the drugs to them, or they would split the drugs with their respective patients. In addition, on several occasions, Dr. D phoned in hydrocodone prescriptions for Dr. C. Upon obtaining the hydrocodone from the pharmacies, Dr. C would then split the drugs with Dr. D. Doctors C and D would also order into their respective clinics quantities of hydrocodone from a reputable drug supplier, ostensibly to dispense to patients, but which they would then divert to their own use, or split with each other. Page 3

4 Drs. C and D were convicted of the felony offense of acquiring a controlled substance by deception and subterfuge, Title 21, United States Code, Section 843(a)(3), a felony violation of the Controlled Substances Act. Doctor E Dr. E was a family practice physician in the Seattle area. Over a several month period, Dr. E unlawfully removed from the clinic where he worked quantities of meperidine, a Schedule II controlled substance, in the form of injectable Demerol, which he then unlawfully consumed. Dr. E knew what he was doing was wrong, in that he had no valid prescription for the drug, and was not authorized to divert such medicines from the clinic. Dr. E concealed his actions by creating false entries in patient records indicating the Demerol had been lawfully administered to patients, whereas in fact it had been diverted to Dr. E s own personal use. Dr. E was convicted of unlawful possession of a controlled substance, Title 21, United States Code, Section 844, a misdemeanor violation of the Controlled Substances Act. Doctor F Dr. F was a dermatologist in Bellevue, Washington. Dr. F worked at a dermatology clinic and saw a number of patients. Over a several month period, Dr. F wrote prescriptions for 50 pill quantities of Percocet, containing oxycodone, a Schedule II controlled substance, in the name of a third individual. Dr. F wrote such prescriptions with the intent of unlawfully acquiring the drugs himself. On each occasion, Dr. F then traveled to a local pharmacy, where Dr. F presented the prescription to the pharmacy falsely claiming to be the person named in the prescription. The pharmacy unwittingly filled the prescriptions, delivering to Dr. F quantities of oxycodone, to which Dr. F was not lawfully entitled, and which Dr. F then unlawfully consumed. Dr. F was convicted of unlawful possession of a controlled substance, Title 21, United States Code, Section 844, a misdemeanor violation of the Controlled Substances Act. Page 4

5 Nurses and Pharmacists In addition to doctors, I have participated in the prosecution and conviction of several registered nurses, pharmacists, and pharmacist technicians, over the last several months, for similar offenses involving the unlawful use and diversion of controlled substances. Their conduct, involving theft, forged prescriptions, and drug distribution, has mirrored that of the offending physicians and they have been treated similarly by the courts suffering the same consequences. I. The Law Controlled substances are subject to federal regulation, and the possession and distribution of such drugs are governed by federal law. Unlike many drugs of high abuse, such as cocaine, heroin, and methamphetamine, which are unlawfully manufactured, pharmaceutical controlled substances, by contrast, are lawfully manufactured and begin with a lawful supply. It is thereafter the responsibility of the federal Drug Enforcement Administration (DEA) to monitor and oversee the lawful distribution of pharmaceutical controlled substances throughout the United States. Federal record-keeping requirements are imposed upon all who are authorized to dispense controlled substances (Title 21, United States Code, Section 827(a)(3)). These requirements impose a legal duty upon drug dispensers to maintain accurate and up-to-date records of all distributions of controlled substances. These records are subject to audit and administrative inspection by the DEA (Title 21, United States Code, Section 880). These record-keeping requirements provide the DEA with an independent means to monitor drug distributions and to detect controlled substances being unlawfully diverted. In order for the distribution of a controlled substance by a medical practitioner to be lawful, it must be dispensed by one authorized to dispense such substances under law, and the distribution must be authorized for a legitimate medical purpose by a practitioner acting in the usual course of his or her professional practice (21 Code of Federal Regulations, Section ). This applies to the dispensing of drugs by a medical practitioner in his or her office, in a hospital setting, as well as to the writing and calling in of prescriptions, or having someone else do so at your direction. If you are the authorizing medical practitioner, you are responsible for that distribution, and you will be held accountable for meeting the legal standard that such distribution was made for a Page 5

6 legitimate medical purpose by a practitioner acting in the usual course of his or her professional practice. At the same time, the legal standard is a generous one, meant to be respectful of medical practitioners who are legitimately acting in their professions to provide for the general care and welfare of their patients. For the distribution of controlled substances by a pharmacist or nurse to be lawful, that pharmacist or nurse must be dispensing such drugs pursuant to a lawful prescription or directive from a treating physician. Title 21, United States Code, Section 841(a)(1) If a medical professional s distribution of drugs does not meet this legal standard, then it may well be regarded as unlawful. Title 21, United States Code, Section 841(a)(1), provides that anyone who knowingly and intentionally distributes, or aids, and abets, or causes the distribution of, a controlled substance, is guilty of a felony. The penalty for this offense includes a period of imprisonment of up to twenty years, a one million dollar fine, and a period of supervised release to follow imprisonment of up to three years. Title 21, United States Code, Section 843(a)(3) In addition to being treated as an unlawful distribution of drugs under Title 21, United States Code 841(a)(1), there are more particular federal criminal statutes which may address the conduct at issue. Title 21, United States Code, Section 843(a)(3), makes it a felony offense to knowingly and intentionally acquire, or aid and abet or cause someone else to acquire, a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge. This offense is punishable by up to four years imprisonment, a two hundred fifty thousand dollar fine, and a one year period of supervised release. This statute (21 U.S.C. Section 843(a)(3)) is violated virtually every time a medical professional diverts a controlled substance, whether it be for his or her own personal use or some other purpose. It includes taking controlled substances from your practice, place of employment, or any other lawful supply, for which you did not have a lawful prescription. It includes writing prescriptions for other than legitimate medical reasons or filling prescriptions you know to be unlawful. Page 6

7 It includes actions you knowingly take to help others improperly obtain drugs, such as by providing illegitimate scripts to others, or filling prescriptions you know to be tainted or forged. It includes a myriad of fact patterns, too many to recount, wherein controlled substances are purposefully removed from a lawful supply by a medical professional for other than legitimate reasons. The statute is violated every time drugs are so diverted. Title 21, United States Code, Section 843(a)(4)(A) A third federal criminal statute is violated whenever records required to be kept by law relating to the dispensing of controlled substances, are falsified in order to conceal the theft or improper disbursement of drugs. Title 21, United States Code, Section 843(a)(4)(A) makes it a felony offense to knowingly and intentionally furnish false material information, or to omit material information, from a report or record required to be kept under law relating to the dispensing of controlled substances. Every time such a record is falsified, or material information is omitted, this statue is violated. This offense is punishable by up to four years imprisonment, a two hundred fifty thousand dollar fine, and a one year period of supervised release. Title 21, United States Code, Section 844 Finally, Title 21, United States Code, Section 844 makes it a federal misdemeanor criminal offense for an individual to knowingly and intentionally possess a controlled substance, without a valid prescription, or proper medical directive, from an authorized physician. This offense is punishable by up to one year imprisonment, a hundred thousand dollar fine, and a period of supervised release of up to one year. The court is also required to impose a mandatory fine of $1,000, and may assess the defendant the reasonable costs of investigation and prosecution of the offense. II. Avoiding Misconduct The point of reviewing the law is not to frighten, but to educate. As can be seen, the law can be violated in a number of ways, and is easily violated, whenever a medical professional purposefully diverts drugs. No prosecutor looks forward to people violating the law, and public funds and resources are invariably depleted Page 7

8 when time and effort are devoted to the criminal prosecution of doctors, nurses, pharmacists, and other medical professionals. Moreover, there is a loss to the public perception of all health care professionals, whenever such laws are violated. At the same time, federal law enforcement has a responsibility to see to it that the laws are being faithfully followed, and medical professionals entrusted with the responsibility to prescribe and distribute drugs have a corresponding responsibility to abide by the law so that the public safety is maintained. When doctors, nurses, pharmacists, and other medical professionals make drugs available to themselves, or to third parties, for other than legitimate medical reasons, there is a threat to public health. Patients have been adversely affected, drugs have ended up where they should not, and medical professionals who are improperly ingesting such substances, and who may be addicted to such substances, are suffering from impairment in their practices and occupations. None of this is good. For all of these reasons, medical professionals are encouraged to respect the law and their professions, and not to engage in the unlawful use and diversion of such substances. When they do so, it is at extreme peril, and they risk having their livelihoods destroyed and going to prison. There is no excuse for putting controlled substances into the hands of any person unless those drugs are being provided for a legitimate medical reason in the ususal course of practice pursuant to a valid prescription. And there should be no doubt that an untreated chemical dependency by a doctor, nurse, or pharmacist, constitutes a present danger to the welfare of the professional as well as his or her patients. If, in the general course of events, a medical professional finds him or herself addicted to a controlled substance or suffering from substance abuse issues, then that individual is encouraged to immediately seek professional guidance, to include treatment for chemical dependency. Many States, including Washington, have treatment programs designed specifically for impaired medical professionals. Such treatment programs are an invaluable resource to the medical practitioner. However, feeding that addiction or drug use problem through criminal means, can only serve to compound the problem and expose the practitioner to ever more serious legal jeopardy through the commission of multiple federal offenses. Moreover, to assume that one will not be caught is to take a risk that Doctors A through F would warn is not a good risk to take. Page 8

9 III. Conclusion Medical professionals, including doctors, nurses, pharmacists, and others, perform an extremely important role in our society. They hold in their hands the safety of other people. They take care of us so that we may effectively carry out our lives. At the same time, they must ensure that they are taking care of themselves, as well as their professions. That is their noble responsibility. It is earnestly hoped that this article may contribute to a greater understanding and success in the fulfillment of that mission. About the Author: Ronald J. Friedman is an Assistant United States Attorney in the Western District of Washington assigned to the Criminal Enterprise Unit of the United States Attorneys Office. Mr. Friedman has been an Assistant United States Attorney for the past 20 years and is a graduate of Harvard Law School. Mr. Friedman has taught at the Department of Justice National Advocacy Institute, the National Institute of Trial Advocacy, and in the University of Washington Law School and Tulane Law School Trial Advocacy Programs. Note: The statements expressed in this article are not intended to be legally binding or to incur legal reliance, and the views expressed herein do not necessarily represent the views of the Department of Justice or the United States. Page 9