Federal Criminal Lawyer Blog

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.

Recently, I read an article in Bloomberg Businessweek entitled: "American Pain: The Largest U.S. Pill Mill's Rise and Fall." Among other things, the article recounts the story of two brothers who were investigated and prosecuted in federal court for operating a number of pain management clinics in Florida, Georgia, and at least one other federal district. Ultimately, both brothers were prosecuted and convicted for a host of federal crimes, inluding RICO violations, fraud offenses, possession with intent to distribute controlled substances, and federal conspiracy charges. Both brothers are serving sentences in federal prison of over 15 years.

These days, investigations and prosecutions of doctors, owners, and others associated with alleged overprescribing in pain management clinics are not surprising. As we have discussed before here, in federal courts in Atlanta, Savannah, and many other jurisdictions, federal agents and federal prosecutors are bringing aggressive prosecutions against all of those associated with the prescribing of controlled substances. For the most part, prosecutors bring charges under the Controlled Substance Act, arguing that the prescriptions at issue were issued outside the usual course of practice, a term of art that must be supported by expert testimony.

One thing I did learn when reading the article, however, is this: Every year, the Drug Enforcement Administration (the same federal agency that prosecutes doctors for over-prescribing) establishes the quota of controlled substances (including opiods) that may be produced in the United States for the following year. For example, for 2012, the DEA set the quota for oxycodone production at 108 tons. Significantly, the article further points out that from 2008 to 2012, the DEA increased the permissible production quota of oxycodone by 40 percent.

To me, the Government's position on oxycodone seems particularly inconsistent. On the one hand, the DEA has increased the production quota of oxycodone by 40 percent in the last four years. In that same time period, however, the DEA has also increased in significant respects federal prosecutions of doctors and others associated with the prescribing of oxycodone and other controlled substances regulated by the DEA. Indeed, as the U.S. Attorney from the Northern District of Georgia announced during a "summit" on prescription drug abuse, federal investigators and prosecutors in the Atlanta area are ramping up investigations and prosecutions of pain management clinics.

There is no question that prescription drug abuse is a serious problem in the United States. However, in many respects, the DEA's apparent answer to this problem seems way off base. The DEA has spearheaded the prosecution of doctor after doctor (and others associated with pain management clinics) in the United States. At the same time, though, the DEA itself has increased in significant respects the flow of oxycodone (and other controlled substances) into the United States.

Given its apparent position that far too many oxycodone pills are being distributed by America's physicians, the DEA needs to try a different approach. Instead of continuing on its current path, the DEA needs to police itself and reduce the number of pills that that it permits drug companies to produce in this country.

The Bloomberg Businessweek article can be found here.