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.