Controlled Substance and Overprescribing Cases
Controlled Substance Act Cases Involving Physicians, Pharmacists and other Health Care Providers
In the last few years, the federal government has focused a great deal of attention on the prosecution of pain management doctors and other health care providers, including pharmacists. We have substantial experience representing doctors and other health care providers in federal criminal cases involving allegations of overprescribing. We know the law and we have successfully represented doctors and other healthcare professionals in numerous federal controlled substance act cases.
If you have a matter that you would like to discuss with experienced federal criminal defense lawyers, please contact us at (404) 658 – 9070.
Are Federal Prosecutors Prosecuting Doctors and other Health Care Providers?
Not too long ago, 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. Since that statement was made, federal prosecutors in Atlanta have secured indictments against doctors and others, claiming that these individuals have violated federal controlled substance laws. This approach is not unique; Federal prosecutors throughout the United States have obtained indictments and convictions against doctors involving allegations of overprescribing. As recent cases from several federal districts demonstrate, the doctors convicted in these cases not only lose the right to practice medicine, but they also, quite frequently, receive significant prison sentences, including sentences of life imprisonment. This is because the sentencing guidelines and the relevant federal statutes contain provisions that enhance the sentence that a doctor receives in these types of cases based upon several factors, including the quantity and type of the prescription drugs at issue.
In addition to prosecuting doctors, federal prosecutors have also pursued federal criminal cases against pharmacists. In those cases, the government claims the pharmacist violated federal laws governing the distribution of controlled substances, even though the pharmacist at issue did not actually prescribe the controlled substances at issue. In one case prosecuted and tried in federal court in Atlanta, Georgia—in which we were not involved—a pharmacist and his wife both received substantial prison sentences for filling controlled substance prescriptions.
What Law Applies in Prosecutions Against Doctors, Pharmacists and Others?
In alleged overprescribing cases, the federal government typically prosecutes doctors, pharmacists, and others under 18 U.S.C. § 841 (i.e., the federal controlled substances act), which is the exact same federal statute the government uses to prosecute individuals in cases involving cocaine, heroin, and other controlled substance offenses. In addition to using the federal controlled substances act, prosecutors often add other charges, including alleged violations of the federal health care fraud statute. When the government adds health care fraud allegations, it generally claims that the prescriptions at issue were not medically necessary. Typically, the government also includes money laundering charges in overprescribing cases, claiming that the underlying alleged controlled substance offense or health care fraud offense constitutes the requisite specified unlawful activity.
In many of the overprescribing cases we see, federal authorities seize the property of the doctor, pharmacist or other individual, oftentimes even well before a criminal indictment is ultimately filed. We regularly see cases where investigators come in and seize the computers, files and property related to a medical practice, along with sometimes freezing the doctor’s bank accounts. As one can imagine, when the bank accounts of a legitimate business are seized, it can literally cripple a business, and displace patients who legitimately need medical care.
One thing that makes this area of the law different is that unlike federal drug cases that do not involve doctors, when the federal government brings a case against a doctor or pharmacist for alleged overprescribing, it must prove, among other things, that the prescriptions at issue were written “outside the usual course of professional practice and without legitimate medical purpose.” The resolution of this important issue usually depends upon expert testimony. Not surprisingly, the experts that the government uses, quite often, take a very conservative view of what legitimate pain management physicians should be permitted to prescribe. Moreover, the government has used some of the same experts time and time again.
Should I retain a lawyer?
Once an individual learns that he or she is under investigation for alleged over-prescribing, it is essential to retain an experienced federal criminal attorney right away. When we get involved, we jump in and learn the relevant facts, and then establish a plan of action to move forward. Oftentimes, one component of the plan of action involves retaining an experienced expert to evaluate the prescriptions at issue. We have been involved in several cases in which we retained a qualified expert who simply disagrees with the opinions of the expert retained by the government.
Our firm has significant experience defending doctors and other healthcare professionals in federal overprescribing cases. We have handled these cases in the Northern District of Georgia and in several other federal districts. Because of our vast experience in federal overprescribing cases, we know the law very well, and we are familiar with the issues often arise. Further, we pride ourselves on our strong work ethic and on representing our clients the way we would want to be represented. If you have a matter concerning overprescribing that you would like to discuss with us, please contact us at (404) 658-9070.
Frequently asked questions.
Should I voluntarily surrender my DEA registration?
On many occasions, we have been involved in cases in which an agent of the Drug Enforcement Administration (“DEA”) shows up at a doctor’s office to either execute a search warrant or speak with the doctor and others within the office. In several of these matters, agents of the DEA spoke with the doctor and asked him or her to voluntarily surrender his or DEA registration. As a general rule, it is mistake to voluntarily surrender your DEA registration without consulting your own counsel in advance. Although there could be rare instances in which it makes sense for a doctor to voluntarily surrender his or her DEA registration, we would not advise any physician to do so, without seeking advice in advance from a lawyer that is qualified to handle federal overprescribing cases.
How does the government prove that a prescription was issued in violation of federal law?
Overprescribing cases are unique in several ways. One difference between overprescribing prosecutions and other federal criminal cases is that in most overprescribing cases, the government must obtain an expert to satisfy its burden of proof. More specifically, the government must prove, among other things, that the prescriptions were not issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. As should be evident, this standard is somewhat ambiguous, and it is not uncommon for two different experts to reach different conclusions on the very same question. In overprescribing cases, it is usually essential for a lawyer handling the case on your behalf to reach out to an expert that can assist the defense team in answering this crucial question. Our firm has handled many of these cases and we are very familiar with what one needs to do to identify and bring on a qualified expert to assist with the defense of the matter.