Doctor and Pharmacist Prosecuted in Federal Court for Over-Prescribing Pain Pills: Eleventh Circuit Affirms Convictions

February 23, 2013 by Paul Kish

My law partner, Carl Lietz, has previously had good results when we represented medical doctors accused of over-prescribing pain medication. He has written earlier posts on this subject. We are seeing more and more of these cases, as shown by recent press releases and news reports. Today, the United States Court of Appeals for the Eleventh Circuit, just a few blocks away here in Atlanta, affirmed the conviction of a doctor, a pharmacist, and a physician's assistant for conspiracy and dozens of counts of over-prescribing pain medications. The case is United States v. Joseph.

The case was prosecuted in the Middle District of Georgia where Dr. Green ran a clinic. His Physician's Assistant was Ms. Mack, and most of the prescriptions were filled by a local pharmacist, Mr. Joseph. The Court of Appeals' opinion recounts the usual evidence we see in such cases involving "pill mills", hundreds of patients paying in cash or credit cards, no insurance, patients traveling long distances just to go this particular clinic, and limited or non-existent medical exams prior to writing or re-filling prescriptions for addictive pain medications.

There are several notable features of this case. One is that both sides called expert witnesses on the "standard of care" to be used by doctors and pharmacists. This is a crucial aspect when defending such cases. Many lawyers fail to recognize they need to prepare for a government "expert" who routinely tells juries the same thing: "I would never do what this doctor did." However, these government experts often fail to recognize the true need many patients have for pain medicines. My partner Carl has previously used a well-recognized defense expert witness who was able to at least counter what the government doctor was prepared to say.

Another important aspect of the case is that most of the defense arguments were rejected by the Court of Appeals under the "plain error" standard, because the trial lawyers failed to properly object to a mistake by the trial judge. Even very good lawyers often fail to preserve objections, which makes it very hard to win a case on appeal. Our firm does lots of appeals, and while we are far from perfect, we believe our appellate cases helps us do a better job in trial when trying to preserve an issue for appeal.

Finally, the case is instructive in that the doctor was given a sentence of 30 years in prison, because patients died or suffered serious bodily injury stemming from their use of the excessive pain medications. Such a sentence demonstrates the serious nature of these cases, and why medical practitioners need to find lawyers who are skilled in federal court when defending such matters.