Chronic Pain, Federal Criminal Law, and the Prosecution of Pain Management Doctors in Federal Court

July 27, 2011 by Carl Lietz

Earlier this year, the United States Attorney's Office for the Northern District of Georgia announced that federal prosecutors and federal agents are ramping up criminal investigations and prosecutions of so-called "pill-mills" in metro Atlanta. The statement (which was reported in the Atlanta Journal Constitution) was made during a "summit" on prescription drug abuse held here in Atlanta back in March.

Since that "summit", federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. Indeed, as recently as last month, federal prosecutors indicted doctors, managers, and owners of "Atlanta Medical Group", charging these individuals with a number of federal offenses. According to the press release issued in connection with the federal indictment, these individuals operated a "pill-mill", illegally distributing oxycodone in violation of federal law.

There is no doubt that prescription drug abuse is a serious problem that needs to be addressed. However, it is equally true that chronic pain is also a serious problem in the United States. Indeed, just last week, the New York Times published an article discussing a sweeping review on this issue that was recently released by the Institute of Medicine — the medical branch of the National Academy of Sciences. According to that review, it is "estimated that chronic pain afflicts 116 million Americans, far more than previously believed." The article goes on to describe that "[t]he toll documented in the report is staggering[,]" leading the chief of pain management at the Stanford School of Medicine (Dr. Sean Mackey) to conclude that number of people suffering from chronic pain "is more than diabetes, heart disease and cancer combined.”

The article goes on to note that "[f]or patients, acknowledgment of the problem from the prestigious Institute of Medicine is a seminal event. Chronic pain often goes untreated because most doctors haven’t been trained to understand it. And it is isolating: Family members and friends may lose patience with the constant complaints of pain sufferers. Doctors tend to throw up their hands, referring patients for psychotherapy or dismissing them as drug seekers trying to get opioids."

As I mentioned in an earlier post, we have represented a number of doctors in alleged over-prescribing cases, and in those cases, we learned a lot about this unique area of the law. Typically, the federal government prosecutes doctors under the same federal statute that it uses to prosecute cocaine dealers and other alleged drug offenders. In federal cases against doctors, however, the government has to prove that the prescriptions at issue were written “outside the usual course of professional practice and without legitimate medical purpose." Not surprisingly, the resolution of this important issue often depends upon expert testimony and the experts that the Government uses, quite often, take a very conservative view of what legitimate pain management physicians should be permitted to prescribe. That view, however, is not the only view. As the New York Times article quoted above recognized, the "proper use of the drugs early in a pain cycle can resolve pain problems sooner, and . . . opioids are also particularly useful for pain management near the end of life."

We will continue to follow developments in this interesting area of federal law. For those of you that may be interested, the full New York Times article can be found here.

Eleventh Circuit Reverses Federal Conviction of Pain Management Doctor

July 20, 2011 by Carl Lietz

Earlier today, the Eleventh Circuit reversed a federal conviction of a pain management doctor prosecuted in federal court. The case originated out of the Southern District of Georgia, and after a lengthy trial, the jury convicted the pain management doctor on 129 counts of unlawfully dispensing certain controlled substances by means of written prescriptions made “outside the usual course of professional practice and without legitimate medical purpose,” in violation of federal controlled substance laws.

On appeal, the doctor raised a number of issues, the most significant one being that the federal trial judge effectively denied him his right to testify by failing to notify him that he could testify in a narrative format. At trial, the doctor was not represented by a a lawyer. And when it came time to decide whether he wanted to testify on his own behalf, the trial judge failed to correct an obvious misunderstanding the doctor had concerning his right to testify.

More specifically, according to the trial transcript, the doctor incorrectly believed he could testify on direct examination only if was questioned by an attorney. Although the record established that the doctor was clearly ignorant of his ability to provide narrative testimony, the federal trial judge failed to correct this obvious misunderstanding. Rather, the trial judge merely informed the doctor that he had "an absolute right to testify."

On appeal, the Government argued that the doctor failed to preserve the issue in the trial court and that as a result, the plain error standard of review should apply on appeal. The Eleventh Circuit rejected this argument outright, going so far as to characterize the Government's argument as "absurd."

With respect to the underlying issue, the Eleventh Circuit reached the following conclusion: "[T]he district court is duty-bound to correct a pro se defendant’s obvious misunderstanding of his right to testify. Because this error was not harmless, [the doctor's convictions cannot stand."

In the last few years, the Government has certainly focussed a great deal of attention on the prosecution of pain management physicians in this District, as well as others. The law in that area is very interesting, and we have become very familiar with it, because we have represented a number of doctors facing similar charges. Although the fact pattern in today's decision is fairly unique, it is worth reading and the full opinion can be found here.

Federal Court of Appeals fails to grant new trial when "possibly innocent man" gets life sentence based on "preposterously unreliable testimony of sole witness"

July 20, 2011 by Paul Kish

We practice quite a bit in the federal appeals courts. The federal courts are often where injustices are fixed when a wrongly convicted person gets post-conviction relief by the granting of a writ of habeas corpus. However, a recent decision by the United States Court of Appeals for the Fifth Circuit shows that on occasion the the federal appellate courts simply get it wrong. In a case where the court conceded that the testimony of the "sole witness" to the supposed crime was "preposterously unreliable", the Fifth Circuit nevertheless affirmed the conviction and life sentence by applying the Byzantine and almost impossible-to-satisfy requirements of federal post-conviction practice. The case is Kinsel v. Cain.

Mr. Kinsel's then 10-year old step daughter accused him of sexual abuse. No one else witnessed the supposed incident. The mother of the child did not believe her own daughter, and other family members explained that what the 10-year old claimed was physically impossible in that Mr. Kinsel was not in the house. Despite such testimony, Mr. Kinsel was convicted and given a LIFE SENTENCE.

Eight years later, the step-daughter, now living across the country, called the prosecutors to recant her trial testimony. Kinsel asked for a new trial, which was granted. Undaunted, the prosecutors decided to appeal, and got the new trial reversed. After many more years of plowing through the almost-insurmountable hurdles of federal post-conviction practice, the matter landed in the lap of three judges on the Fifth Circuit.

Readers can assess for themselves whether the appellate judges properly applied the law. What is uncontroverted is that these same judges recognized that an injustice had occurred, yet they were unwilling to do anything about it. They concluded their lengthy opinion with the following. "It is beyond regrettable that a possibly innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime for which he was convicted. But, our hands are tied by the AEDPA, preventing our review of Kinsel’s attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim."

Our criminal justice system works pretty well, most of the time. However, there are cases such as Mr. Kinsel's which make me wonder how some judges and prosecutors are able to sleep at night.

Forfeiture of $1.7 million for crime involving $22,000: Court of Appeals says this is not "disproportionate"

July 13, 2011 by Paul Kish

When we handle federal criminal cases here in Atlanta, Georgia and in other parts of the country, our clients often face criminal penalties along with possible forfeiture of their property. Lawyers often forget how important these financial penalties can be. A recent case from the United States Court of Appeals for the Eleventh Circuit (located several blocks from our office in Atlanta) shows the importance of understanding the immense financial penalties that can be imposed in a federal criminal matter. The case is United States v. Chaplin's.

Two brothers (we will call them #1 and #2) owned separate jewelry stores here in Atlanta. Brother #1 was caught in an undercover sting operation selling $22,000 in jewelry to a person he thought was a drug dealer. He agreed to accept more than $10,000 in cash from the person he thought was a drug dealer, and also agreed to not file the IRS forms that are required in this situation. Brother #1 was charged with and convicted of money laundering.

The government also charged the corporation that owned Brother #2's store with similar crimes. This was one of those relatively rare situations where the prosecutors went after a corporate entity. The prosecutors got convictions against the corporation that owned #2's store based on the fact that some of Brother#1's dealings were done in the store owned by #2.

The government convinced the trial judge to impose a total financial penalty of over $1.9 million against the corporation that owned the store operated by Brother #2 in a case where Brother #1 sold $22,000 in jewelry to an undercover agent. The judge ordered a $100,000 fine, restitution of $22,000 and forfeiture of the entire jewelry inventory, valued at over $1.7 million.

The corporation appealed to the Eleventh Circuit, sensibly arguing that this financial penalty was grossly disproportionate with the crime and the harm caused by Brother #1. The Court of Appeals disagreed, holding that this was OK because these were serious crimes and Congress had authorized substantial financial penalties in such cases.

This case is a lesson for lawyers who handle serious federal criminal cases. We need to fight not only jail sentences, but also battle against the government's increasing inclination to try and bankrupt our clients and everyone near them.