“First, Do No Harm”: Criminal Prosecutions of Doctors for Distributing Controlled Substances Outside of Legitimate Medical Need

“First, Do No Harm”¹

The National Association of Attorneys General (NAAG) collaborated in a 2007 study with the Federation of State Medical Boards and the Center for Practical Bioethics doing research on physicians who had been prosecuted for prescribing controlled substances.  The results of that research were reported in the September 2008 issue of Pain Medicine ² and highlighted in an archived issue of the NAAGazette.³  The research focused on physicians who had been prosecuted between 1998 and 2006, both federally and by states, and was prompted by allegations from stakeholders that prosecutors were unfairly targeting pain management doctors when investigating physician prescription habits.

In 2015, NAAG was awarded a grant from the State Attorney General Consumer and Prescriber Education Grant Program. The grant work was conducted by the National Attorneys General Training and Research Institute (NAGTRI), a NAAG branch. One of its projects was an update on the 2006 research to determine whether the conclusions of the original report still held and whether there had been any shift in the numbers of doctors being prosecuted because of increased concern, both in medical journals and in the popular press, of patients becoming addicted to opioids or pain relievers and then turning to heroin and, in response, an increasing number of states issuing guidelines on prescribing opioids.

Research Methodology

The Drug Enforcement Agency (DEA) assisted in the original research by providing the names of doctors that the DEA’s investigations, either by itself or with the assistance of state investigators, had led to criminal prosecutions.  Since that time, DEA has published a list of doctors who have been criminally prosecuted due to a DEA investigation.⁴  This list became the starting point for identifying doctors that had been charged, learning background information on them, and determining the outcomes of the prosecutions.  NAGTRI researchers asked the following questions regarding basic background information:

• Did the doctor have an MD or a DO degree?
• Was the doctor male or female?
• Was the doctor educated in a U.S. or foreign medical school?
• How old were the doctors?
• Was there a specialty identified, either through board certification or self-   identification?
• Where were the doctors practicing?

Then questions were asked about the prosecutions themselves:

• Was the doctor prosecuted by the federal government or by a state?
• What charges were filed?
• Did the doctor enter a plea or was there a jury trial?
• If a jury trial, what was the outcome?
• What was the penalty imposed: imprisonment, probation, and/or      restitution?
• Was an appeal filed?  If so, what was the outcome of the appeal?

Once research was completed on the doctors identified in the DEA database, newspaper articles were searched using various search terms to find other doctors who had been criminally charged but who were not included in the DEA database.

Often a doctor’s background information would be contained in the states’ medical board database and available on their websites. When that was not the case, public databases such as healthgrades.com, vitals.com, and health.usnews.com would be searched.  Oftentimes, queries were addressed to the prosecutors who had handled the case.

Detailed information about federal prosecutions was available through pacer.org ⁵ and, for state prosecutions, from the prosecutors involved, from newspaper articles, and, in a few cases, from the doctors’ defense attorneys.  In all, NAGTRI researchers gathered the names of 378 doctors who had been charged and whose cases were resolved and/or sentences rendered by Dec. 31, 2016.⁶

Background Information

The information gathered regarding the doctors’ background information was compared to statistics reported in a 2014 article in the Journal of Medical Regulation⁷ to determine if there were statistically significant differences between the information available on doctors in practice in the years 2012 and 2014 and the doctors who were identified as having been criminally prosecuted for over-prescribing controlled substances.

Table 1 - Population Characteristics

Table 2 - States of Practice

Table 3 - Specialty Area

Federal or State Indictment

Of the 378 cases, U.S. attorneys’ offices charged 249 and state authorities charged 131.⁸  That statistic varies significantly from the results of the earlier research.  In that case, of the 335 physicians studied, criminal charges were brought in 178 cases by state authorities.  The stark change in the increase in federal prosecutions is evidence of more robust investigations which coincides with the 2011 height of the “pill mill” crisis, occurring particularly in Florida.

Doctors Who Pled “Not Guilty”

Sixty-nine of the study doctors pled “not guilty.” Of those electing to go to trial, 45 were indicted by the federal government and 24 were charged by their respective states.  One of the doctors was acquitted at trial,⁹ the rest were found guilty,¹⁰ but two were not sentenced because they failed to appear and are considered fugitives.  Two of the doctors, who evidently were, themselves, addicted, were sent to rehab or given judicial diversion and one was given probation after a jury had found him guilty of seven counts of over-prescribing.

Results of Appeals

Thirty-one appealed their convictions.  Of those, 26 of the convictions were affirmed or the appeals dismissed and three of the appeals are still pending at press time. One doctor’s life sentence for felony murder was upheld but his conviction of keeping a dwelling for purposes of distributing controlled substances was overturned.  Another doctor was granted a re-trial for an erroneous jury instruction but was convicted on being re-tried.

Charges Levied

All of the doctors were charged with violations of the federal Controlled Substances Act or the state counterpart.  However, a plethora of other charges were levied, including healthcare fraud, insurance fraud, wire fraud, Internet prescribing, murder or prescribing leading to the death of an individual, involuntary manslaughter, larceny, falsifying business records, RICO-type charges, forgery, failure to maintain adequate records, tax evasion, tax fraud, money laundering, conspiracy, and aiding and abetting.

Sentences

Two hundred seventy-two of the doctors who pled or who were found guilty were incarcerated.  However, incarceration time varied from 1 day to life.¹¹  The average incarceration was approximately 63.43 months.¹²  Seventy-six doctors received probation only.  The state court sealed the sentencing of one New York doctor.  Other punishments included suspended sentences, judicial diversion, rehab, home confinement, deferred sentencing, home detention and probation, and time served.  As mentioned above, two doctors were never sentenced because they became fugitives after they were found guilty, one doctor was found mentally incompetent to stand trial, and one doctor’s case was dismissed after he successfully completed drug court.

Fines, Forfeitures, Restitution, Community Service

In sentencing, both federal and state courts imposed monetary penalties, forfeitures, or required community service.  When imposed, fines ranged from $100 to $50,000.  Restitution was ordered for those convicted or pleading guilty to healthcare fraud with the highest being over $37 million.  Forfeitures, especially in the federal system, were often ordered to assist in paying restitution.  Real estate, bank accounts, automobiles, weapons, boats, and even gold bars were forfeited.  Some courts ordered forfeiture of medical licenses, DEA controlled substance licenses, and state drivers’ licenses.

Comparison to Earlier Study

There was an almost exact correlation between the earlier study and the present one regarding genders of the physicians.  We found that 89.95 percent of the physicians charged were male, 10.05 percent were female; the earlier study’s percentages were 89.94 percent and 10.6 percent, respectively.  The correlation was also remarkably consistent regarding graduates from foreign medical schools, with 24.85 percent of the doctors in the current study and 25.4 percent in the earlier study.  The number of doctors with osteopathic medicine (DO) degrees who were prosecuted was higher than the general population of osteopaths, a finding that is consistent with the earlier study.  Ages were differentiated differently in the two studies, but the number of older physicians in the current study was quite a bit higher than in the earlier study.  We found that 15.34 percent of the physicians were over 70.  In the earlier study, the number of physicians over 65 was approximately the same number, 15.5 percent.

In the current study, 56.34 percent of physicians who were charged practiced internal medicine, family medicine, or general medicine.¹³  These are the doctors who are providing the front line of health care in the United States.¹⁴  In the earlier study, 39.3 percent of the physicians were in general practice.  Doctors reporting a specialty of pain medicine only represented 2.95 percent of the charged physicians; the earlier study found a slightly larger percentage: 3.5 percent.¹⁵  However, it should be noted that many of the prosecuted doctors were practicing in what were advertised as pain clinics even though they had no special training in that area.

The earlier study did not look at states where the doctors were practicing.  There is some correlation, but it is not exact, between the population of a state and the number of doctors charged there.  The highest number of doctors charged (53) were practicing in the third largest state by population, Florida.  Both California (ranked 1 by population) and New York (ranked 4) had a significant number of doctors charged.  However, only 11 doctors were prosecuted in Texas (ranked 2 in population).

Pill Mills

Many of our study doctors were employees of so-called “pill mills.”  The pain clinics which were found to be operating as “pill mills” exhibited one or more of these characteristics:  they accepted only cash, no credit card or insurance payments; they were owned by non-physicians: doctors asked the patient to tell them the medication and the amount desired; clinics would require the patients to go to a specific pharmacy or an “on-site” pharmacy; doctors did not discuss alternative methods of treating pain with patients; clinics had long lines of patients; clinics employed armed guards and/or patient recruiters; patients received little or no physical exams; and doctors required little or no evidence of injury such as an x-ray.¹⁶   The investigations into pill mills often meant that 10 or more doctors working at clinics with shared ownership were charged simultaneously.

Response of Medical Boards and DEA to Convictions

In virtually every case, medical boards responded, either immediately upon a physician being charged or after a finding of guilt, by revoking or suspending a license.  As mentioned above, some courts ordered forfeiture of licenses as part of the sentence.  In a few cases, doctors have petitioned to be reinstated after serving their respective sentences.  At least seven of the doctors included in the study have active licenses after petitioning.

Other Observations

At least 40 of the doctors prosecuted had mental health and/or addiction problems themselves or were prescribing for a member of the family who had such problems.¹⁷  One doctor claimed he had multiple personalities.  Another physician had a severe gambling problem.  At least two of the older physicians had cognitive issues.  Others were prescribing pills in return for sexual favors.  Some of the doctors were quite flamboyant, including one who drove around in a PT Cruiser, came to Las Vegas hotels on call, and dispensed drugs for cash only to people with whom he had no doctor-patient relationship.  Several doctors shared in the proceeds of the illegal street sales of drugs they had proscribed.  Another doctor entered into a conspiracy with members of a motorcycle gang to prescribe opioids to sell on the street.  That particular doctor is facing additional charges for healthcare fraud.

A number of the doctors from the study had been involved in earlier problems with law enforcement, including earlier convictions for income tax irregularities, healthcare fraud, driving under the influence, mail fraud, and Internet extortion.  Others had been investigated by their state medical boards and various sanctions placed on their licenses prior to being charged.

How States Have Responded to Over-Prescribing

In 2010, Florida took the lead in legislating against the plethora of over prescribing of controlled substances in the state.  Other states, particularly in the south, followed suit.  One of the measures passed required that clinics be owned by state-licensed doctors or meet the standards required by hospitals.

Real-time use of prescription drug monitoring programs (PDMPs) and requiring physicians to check prior to prescribing to ensure that patients are not doctor shopping are methodologies used by more states to help overcome the opioid epidemic.¹⁸  The National Alliance for Model State Drug Laws is an excellent source of information concerning which states are being proactive in using their PDMPs effectively.¹⁹

States have also adopted their own prescribing guidelines.  According to the Federation of State Medical Boards (FSMB), only a handful of states and territories have not either adopted the FSMB policy or developed their own.²⁰  These policies give both doctors and prosecutors a baseline on which to determine whether prescribing practices are medically sound.

Finally, some state medical boards, such as New York’s, have required physicians to take mandatory prescriber education before being allowed to prescribe controlled substances in that state.  Physicians who wish to be “dispensing” physicians are often required to obtain a separate controlled dangerous substance (CDS) license in a number of states.  It is important that state medical boards be as proactive as possible when they receive information questioning a doctor’s prescribing practices.²¹  State boards can act much more adroitly, productively, and creatively in intervening than can the DEA when they find evidence that a doctor may be straying from appropriate medical practice.  Boards can order monitoring, education, temporary suspension of prescribing license, and other remedies to ensure that a doctor receives assistance in his or her prescribing practices.

Response by Medical Schools

In the past, medical schools have not given much attention to pain medicine and addiction.²²  However, after the Centers for Disease Control and Prevention (CDC) published their guidelines on opioid prescribing, the White House asked medical schools to pledge to expand their course offerings based on the CDC guidelines.²³  More than 60 schools signed that pledge.²⁴  Massachusetts is at the forefront of ensuring that their medical school graduates will have a thorough understanding of treating pain and preventing prescription drug misuse.

Conclusion

With more graduating doctors receiving education on pain medicine and addiction and with a new understanding that even patients in pain can become addicted to opioids,²⁵ the coming years may find that fewer doctors will find themselves embroiled in the criminal justice system for their prescribing practices.  Prosecuting doctors is only part of the answer to the opioid addiction problem, but stopping those doctors who have contributed to the problem is an important step in stemming the opioid addiction tide.

Endnotes

1.   Although most laymen believe this is part of the Hippocratic Oath, it is actually taken from other writings of Hippocrates and expresses the primary duty of physicians to work in the best interests of their patients.
2.   Donald M. Goldenbaum et al., Physicians Charged with Opioid Analgesic Prescribing Offenses, 9 Pain Med. 737-747, http://onlinelibrary.wiley.com/doi/10.1111/j.1526-4637.2008.00482.x/full.  The current study did not look at state medical board actions not connected with criminal prosecutions.
3.  https://www.naag.org/publications/naagazette/volume-2-number-8/perception-versus-reality-the-facts-regarding-prosecutions-and-disciplining-of-doctors-for-abuses-in.php.
4. https://www.deadiversion.usdoj.gov/crim_admin_actions/index.html.
5.   The majority of federal sentencing memoranda, however, are sealed.  This is unfortunate because often those memoranda give a clue as to intent and motivation behind the crime.
6.     Four doctors were included who died, two by their own hand, before adjudication.  Other doctors were charged but their cases dismissed because they cooperated with authorities on other cases.  Ninety-five other doctors (18 alone practicing in Florida) were indicted during the study period, but had not been sentenced by the end of 2016.  However, of those 95, 21 pled guilty and four others were found guilty at trial.
7.   Aaron Young et al., A Census of Actively Licensed Physicians in the United States, 2014, 101 J. Med. Reg. 8 (2014) (hereinafter Census).
8.   Two doctors were prosecuted by both federal and state authorities. In one case, the state charged involuntary manslaughter and the federal government charged the controlled substances violation.  In the other case, both charges involved overprescribing.
9.   This doctor was prosecuted by the state in regard to Anna Nicole Smith’s death.  The California Medical Board reviewed his prescribing of controlled substances and placed him on probation for three years.
10.   One elderly Florida doctor, charged by the state, was acquitted on the charge of murder but was found guilty on a prescribing violation.  He was sentenced to time served and five years’ probation.
11.   Four doctors received life sentences, one receiving four life sentences.
12.   It is impossible to determine the exact average because many state sentences run for an indeterminate number of years, such as from 9-15 years.  When that was the case, the lower number was used to find the average.
13.   Those physicians over 70 were more likely to report their specialty as general practice.
14.   Women often consider their OB/GYN doctors their primary care physicians.  If one adds the 17 OB/GYN physicians to the general practice category, the percentage of general practice doctors would jump from 57.41 percent to 60.84 percent.
15.   Doctors who reported neurology, physical medicine and rehabilitation, and addiction medicine as a specialty might also be included in the number of doctors who allegedly specialized in pain medicine.  If we included those doctors, the percentage would be 6.08 percent.
16.   See Khary K. Rigg, Samantha J. March, & James A. Inciardi, Prescription Drug Abuse & Diversion:  Role of the Pain Clinic, 40 J. Drug Issues 681-701 (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3030470/.
17.   This is in marked contrast with the earlier study which found that 90 out of the 335 doctors were prescribing for themselves or for family members or were sharing pills with patients.
18.   For an article on the results of Kentucky’s requirement that doctors use the PDMP before prescribing opioids, see Christine Vestal, States Require Opioid Prescribers to Check for ‘Doctor Shopping,’ Stateline (May 9, 2016), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/05/09/states-require-opioid-prescribers-to-check-for-doctor-shopping.
19.   See http://www.namsdl.org/prescription-monitoring-programs.cfm.
20.  See https://www.fsmb.org/Media/Default/PDF/Advocacy/Pain%20Management%20Overview.pdf.
21.   States such as New Jersey have become very proactive in ensuring that doctors who have been convicted of illegally prescribing controlled substances are not ever able to prescribe them again in the state, even if their medical licenses are reinstated. See, e.g., Press Release, NJ Division of Consumer Affairs Files Actions to Revoke the CDS Registrations of Five More Doctors Who illegally Prescribed Controlled Prescription Drugs (Dec. 16, 2013),  http://www.njconsumeraffairs.gov/News/Pages/12162013.aspx.
22.   Amy Karon, Medical Schools Respond to the Opioid Epidemic, Med. Educ., Jan. 2017 (quoting Anna Lembke, MD, Director of the Addiction Medicine Fellowship and Assistant Professor of Psychiatry and Behavior Sciences, Stanford University).
23.   https://obamawhitehouse.archives.gov/the-press-office/2016/03/29/fact-sheet-obama-administration-announces-additional-actions-address.
24.  http://www.pcom.edu/campuses/philadelphia-campus/news-and-events/pcom-news/pcom-joins-medical-schools-on-obama-opioid-pledge.html
25.   It is important to remember that, even in the early 21st century, there was little recognition that patients in pain who were taking opioids might become addicted.  See., e.g., David E. Joranson, et al, Trends in Medical Use and Abuse of Opioid Analgesics, 283 JAMA 1710, 1714 (2000) (concluding “[t]he trend of increasing medical use of opioid analgesics to treat pain does not appear to contribute to increases in the health consequences of opioid analgesic abuse”), http://jamanetwork.com/journals/jama/fullarticle/192551.