Month: December 2015

When to bring in an appeals attorney

Posted on December 26, 2015 by - Appellate

A recent win on appeal

I recently won a quick and good result on appeal. This case in particular illustrates the importance of making your record for appeal, a fact appellate lawyers know to their core. This recent victory also illustrates the importance of bringing in an appellate lawyer sooner, rather than later, to prepare for the appeal. An appellate lawyer can ensure that an legal error (or legal issue) is properly preserved for appeal. An appellate lawyer will also be familiar with the various standards of review applicable on appeal.

What was unusual about this recent case, is that the trial lawyer accurately predicted she could win three important but difficult rulings, and she associated me early on to help her make the best possible record in anticipation of the other side’s threatened appeal. Working together, we ensured that the proper law was applied for each legal issue, and we further furnished the trial court with concise and forceful, legal and factual arguments, on each legal issue, enabling the trial court to rule in our favor on all three difficult issues.

As expected, the other side appealed. Our response on appeal was (a) that the trial court applied the correct law when deciding each of the three legal issues raised on appeal, (b) the trial court record was inadequate to reach the other side’s first two legal issues, and (3) the trial court did not abuse its discretion on the third legal issue. In sum, we successfully defended all three key rulings in our client’s favor because we prepared for the appeal while we were still in the trial court. The appeal was won in great part because of what we did in the trial court. This is but one example of what an appellate lawyer can contribute while a case is still before the trial court.

Another case soon going up on appeal

I was recently retained in another new case, where the other side is attempting to set aside the parties’ judgment. The trial lawyer in this new case recommended to his client that I be added to the legal team, for at least three reasons. First, he wants to win, and he volunteered that appellate lawyers are more familiar with the legal standards applicable to set-aside motions. Second, he wants to make the best record possible, in anticipation of an appeal, because the other side is already threatening to appeal if they lose their motion to set aside the judgment. And third, if there is an appeal, he wants to defend it as the respondent on appeal, not file it as the appellant on appeal. As I write this, I know very little about this new case, but I well know my role as appellate attorney – here we go again – let’s win, and if not, let’s ensure we make the best record possible for appeal.

Associating an appeals attorney before there is an appeal

My point, of course, is that appellate lawyers can do more for you if we are involved sooner than you might think. Here are a few thoughts for your consideration:

Before and during trial

Occasionally, appellate attorneys will be working in the background during trial preparation and trial, as illustrated by the two cases discussed above. Appellate attorneys are also involved in larger cases, those with ample budgets, and the need for several attorneys just to get the case to trial. If there are several attorneys preparing your case for trial, it makes sense that one of them should have appellate experience, to round-out the team.

After trial, but before judgment

More often, appellate lawyers are brought in soon after a loss in the trial court, to help prepare the judgment, in anticipation of an appeal. I often characterize the preparation of the judgment as the interface between the trial and the appeal. By this point, the outcome of the trial is known, and remaining task is to reduce various trial court rulings and findings to a written judgment. There is much work to be done, and many considerations in anticipation of the appeal. The terms of the proposed judgment are extremely important, and any disagreements will be resolved by the trial court, creating one more opportunity to improve the record for appeal. If execution on the judgment (i.e., collection efforts) is a further concern, the timing of the entry of the judgment, and preparation and filing of the bonding to stay (prevent) execution on the judgment, is also important, if not urgent. An award of attorney fees may also be an issue and, if so, this presents another consideration for appeal. After trial, but before judgment, there is plenty to do, and this type of work is often done by, or with the assistance of, appellate lawyers.

After judgment

Most often perhaps, appellate lawyers are brought in after entry of judgment, to prepare the notice of appeal, before time runs out to do so. At this point, an appellate lawyer can handle the bonding necessary to stay execution of the judgment, and also take the case up on appeal, but the opportunity to improve the record and the judgment for appeal, will have passed.

How to evaluate when to involve an appeals attorney

Most cases will not go up on appeal, and experienced trial lawyers will quickly recognize these cases. Other cases, predictable in nature, and handled by experienced trial lawyers, may not justify or require an appellate lawyer. However, in those cases where an appeal is threatened, likely, or certain, the question is not whether to bring in an appellate lawyer, but when. Each case is different. Consult an appellate lawyer whenever an appeal is foreseeable, or likely. Most appellate lawyers will have this initial discussion with you at no cost, so make the call, to determine what will work best in your case.

Is Dr. Larry Eckstein a criminal?

Posted on December 15, 2015 by - DEA Prosecutions

Doctor Larry Eckstein, of Boulder, Colorado, was indicted this summer by a Boulder County grand jury on one felony count of distribution of a controlled substance. I have no personal knowledge of this case, or of doctor Larry Eckstein, having only read about the doctor in the media. As I understand it from the news reports, however, Dr. Eckstein’s case is a small case, as drug cases go, and the doctor has garnered much community support, evidenced by crowd fundraising, a Facebook page, and public letter writing and comments. Based upon what I read, I further question whether Dr. Eckstein’s case is properly treated as a criminal case.

The allegations against Dr. Eckstein

According to the lead news report, the factual allegations against doctor Larry Eckstein are that:

“an undercover police detective scheduled an appointment for July 22, 2014, at Eckstein’s Boulder office, 2760 29th St. The detective complained of “chronic soreness” and said that a friend’s “Roxies” ‚Äî the street name for the opiate Roxicodone ‚Äî had helped him before.

“Eckstein gave the detective a basic physical examination and then prescribed him hydrocodone, according to the indictment. Eckstein approved two more refills for the hydrocodone and made a second prescription for the drug at a second appointment with the undercover detective in October.

“But on a third appointment Oct. 30, Eckstein prescribed the undercover detective oxycodone, and he did so again at four other appointments between December and February, according to the indictment.

“Between Oct. 30 and Feb. 25, Eckstein dispensed 30 grams of oxycodone to the undercover officer, according to court documents.”

See, Boulder doctor indicted on charge of distributing oxycodone, Boulder News, August 19, 2015.

The government’s expert

According to the same news report, the expert opinion of a chart-reviewing physician offered in support of the indictment, is that several aspects of Dr. Eckstein’s treatment of the detective fell “outside the ordinary course of the professional practice,” because Dr. Eckstein (1) never made a diagnosis, (2) never performed any of the appropriate physical examinations, (3) did not perform a risk assessment on the detective, (4) mixed opioids with other prescription drugs, and (5) increased the amount of drugs in the prescription “massively,” without a diagnosis or treatment plan. See, Boulder doctor indicted on charge of distributing oxycodone, Boulder News, August 19, 2015.

Several observations worth consideration

Overall, it appears that Dr. Eckstein wrote two prescriptions for hydrocodone (allowing two refills) and five prescriptions for oxycodone, on seven different occasions, over the course of eight months, spanning July 2014 through March of 2015, in response to an undercover detective’s complaints of chronic pain.

Is the government’s expert opinion worth that much?

Please know that when a chart-reviewing “expert” physician concludes that another physician’s treatment of a patient falls “outside the ordinary course of the professional practice,” as happened here, the expert is most often rendering a standard of care opinion (i.e., a malpractice opinion), while using words taken from a criminal statute. This type of opinion can be very misleading, because malpractice (professional negligence), without more, is usually not criminal. In other words, the expert might very well render an opinion that the medical standard of care was not met, as appears to be the case here, but where is the rest of the evidence? – the evidence necessary to push Dr. Eckstein’s case into the realm of criminal drug dealing?

A crime, malpractice, or none of the above?

There can be little doubt that the undercover detective intended to do as much as possible to obtain prescriptions for controlled drugs from Dr. Eckstein, without helping the doctor. Under the circumstances, does Dr. Eckstein’s treatment of the detective sound like criminal activity, or malpractice, or none of the above? At least one clinician, having some expertise himself and writing in support of Dr. Eckstein, suggests it was no more than professional negligence. See, Charles Horowitz: Prescribing pain medication often a tough call, Boulder News (Opinion), August 29, 2015.

Why not leave this matter with the Colorado Medical Board?

As a matter of public policy, why isn’t the Colorado Medical Board’s emergency suspension of Dr. Eckstein’s medical license “on suspicion of a ‘deliberate and willful violation of the Medical Practice Act,’ ” an adequate response in this case? See, Colorado suspends license of Bolder doctor indicted on drug charges, Boulder News, September 15, 2015. It is, after all, the role of a State licensing board to regulate the practice of medicine, and here the Colorado Medical Board has stepped in and suspended Dr. Eckstein’s medical license, meaning Dr. Eckstein can no longer practice medicine, much less prescribe controlled drugs. In a case like this, I would expect the Colorado Medical Board to investigate, to determine whether the Medical Practice Act was violated and, if it was, to discipline Dr. Eckstein accordingly, by imposing restrictions on him and his license. Why isn’t that enough in a case like this?

Why not suspend, restrict, or revoke Dr. Eckstein’s DEA Registration?

As a matter of public policy, why did those with decision-making authority prefer to indict Dr. Eckstein when they could have more efficiently and cost effectively suspended, restricted, or revoked his DEA Registration? A DEA Registration is necessary to prescribe controlled drugs, and it was the DEA that issued Dr. Eckstein’s DEA Registration in the first place. The DEA is similarly empowered to suspend, restrict and/or revoke Dr. Eckstein’s Registration for failure to meet the medical standard of care and, without DEA authority obtained via his DEA Registration, Dr. Eckstein can no longer prescribe controlled drugs. Why isn’t that enough in a case like this?

Could some deaths been prevented in Dr. Sylvia Hofstetter’s case?

Posted on December 12, 2015 by - DEA Prosecutions

The lengthy DEA investigation of doctor Sylvia Hofstetter

I earlier commented on the case involving doctor Sylvia Hofstetter and, as I explained then, I have no personal knowledge of Dr. Hofstetter or her case, having only read about Dr. Hofstsetter in the media. Nonetheless, any lawyer having any experience defending doctors against drug diversion charges will know that the government’s investigations can be quite thorough, and this is certainly true of the investigation into Dr. Sylvia Hofstetter. By one account, it was described as a “lengthy multi-year investigation” into Dr. Hofstetter’s move from Florida to Knoxville, Tennessee. It was further reported that “there were at least seven overdose deaths” due to controlled drugs prescribed by Dr. Hofstetter’s clinics, and that number does not include “dozens” of other potential deaths, as follows:

“In four years, the FBI said prescriptions for more than 12 million pills were written by Hofstetter’s clinics * * * [and] there were at least seven overdose deaths due entirely to opioid drugs that were prescribed by Hofstetter’s clinics. [The investigator] said seven deaths was a solid estimate because that number does not include dozens of other overdose deaths where other drugs may have been in the victims’ systems.”

See http://www.wbir.com/story/news/crime/2015/03/13/overdose-deaths–organized-crime-linked-to-pill-mill-operation/70285100/

The unasked questions

How many deaths could have been prevented had the government concluded its investigation of doctor Sylvia Hofstetter in two years instead of four? It does not appear that the government’s case against Dr. Hofstetter would have been compromised in any way that would have affected the government’s ability to pursue Dr. Hofstetter on criminal grounds after a two-year investigation. Alternatively, how many deaths would have been prevented had the DEA acted quickly after Dr. Hofstetter’s practice standards became suspect, by administratively suspending and then revoking Dr. Hofstetter’s DEA Registration, which would have ended her ability to prescribe controlled drugs all together?

A matter of public policy

These questions are public policy questions only, exploring the tip of the iceberg of social values, priorities, and the allocation of public resources. These questions are not intended to suggest a legal defense.

Drug diversion? Why “medical necessity” is not the standard

Posted on December 11, 2015 by - DEA Prosecutions

Last month two physicians, doctor John Couch and doctor Xiulu Ruan of Mobile, Alabama, pleaded not guilty to multiple charges of drug diversion. I have no personal knowledge of either Dr. John Couch or Dr. Xiulu Ruan, or of their case, having only read about the doctors in the media. What caught my attention was that the news report included a discussion of “medical necessity,” i.e., whether there was a “medical necessity for dispensing the controlled substance.” Medical necessity is not, however, the legal standard by which the crime is measured. Nor is malpractice. This is an issue I have devoted some time to while defending physicians charged with prescription drug crimes. Rather, “drug diversion” is a specific intent crime. To convict a doctor of drug diversion, the government must prove more than malpractice, and more than the absence of medical necessity.

The elements of the crime of drug diversion

Doctors Couch and Ruan had authority to prescribe controlled drugs by virtue of their DEA Registrations. Under 21 U.S.C. § 841(a)(1), it is generally agreed that the government must prove (1) that both doctors prescribed or dispensed a controlled substance, (2) that they acted knowingly and intentionally, and (3) that they did so other than for a legitimate medical purpose and in the usual course of his or her professional practice. See, e.g., United States v. Norris, 780 F2d 1207, 1209 (5th Cir. 1986); citing, U.S. v. Rosen, 582 F2d 1032, 1033 (5th Cir. 1978).

It is important to know, however, that the Controlled Substances Act (CSA), which is the statutory scheme passed by Congress, includes only the first two elements above. The third element,”legitimate medical purpose,” is rooted in an agency Rule promulgated by the Drug Enforcement Administration (DEA). See 21 C.F.R. 1306.04(a). That Rule provides that a controlled substance can be dispensed by a prescription “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 C.F.R. 1306.04(a); Norris, 780 F2d 1207,1209. Thus, lawyers defending doctors need to be careful that the agency’s Rule does not swallow the federal statute, watering down the criminal conviction standard.

Did the doctors “knowingly and intentionally” divert drugs?

Keeping the federal statute front and center, the question is whether Dr. John Couch or Dr. Xiulu Ruan intended to divert drugs, a specific intent crime. The DEA’s attorneys might very well prove that Dr. John Couch or Dr. Xiulu Ruan prescribed without medical necessity, or that they committed malpractice while prescribing, but more is required to prove the specific intent crime of drug diversion. The DEA’s attorneys must prove that doctors John Couch and Xiulu Ruan “knowingly and intentionally” diverted drugs to an illicit purpose. This is the burden of proof imposed upon the government, by the Congress, pursuant to 21 U.S.C. § 841(a)(1).

Dr. Lawrence Wean, of Media, Pennsylvania, sentenced to prison

Posted on December 10, 2015 by - Appellate, DEA Prosecutions

Yesterday it was reported that 61 year-old doctor Lawrence Wean, of Media, Pennsylvania, a suburb of Philadelphia, was sentenced to prison for 10 to 20 years, and that he had earlier rejected a plea agreement that would have required less prison time. Experienced lawyers will know that rejecting a plea agreement and proceeding to trial is something of a gamble, and if you lose that gamble, you can expect to serve more time than what might otherwise been ordered after a plea, so a longer sentence for doctor Lawrence Wean comes as no surprise.

I have no personal knowledge of Dr. Lawrence Wean, or of his case, having only read about Dr. Wean’s case in the media. As I understand it from news reports, Dr. Wean sold prescription drugs to undercover officers, was convicted in October of writing unlawful prescriptions and filing false insurance claims, has been ordered to pay over $40,000 in fines and $62,000 in restitution, and was just sentenced to 10 to 20 years.

Too much exposure for physicians?

One of the things I have learned as an appellate lawyer defending physicians on appeal is that the additional time imposed at sentencing, after losing at trial, is disproportionately more time than anyone expected when measured against earlier plea offers or negotiations. In other words, the gamble for physicians facing drug diversion charges for prescription drug crimes, may be a larger gamble than the typical defendant might face when rejecting a plea agreement. Physicians, family members, and lawyers defending physicians for the first time, are genuinely surprised, something I have witnessed first hand.

Is there a better approach for some physicians?

One of the opportunities I would like to explore when the right case presents itself, is the idea of negotiating a very early and favorable plea agreement, followed by an quick sentencing and an early self-report to serve time, before the typical two-or-more years have passed, and extensive financial resources have been depleted, which is common when taking drug diversion charges to trial. Some might recall that this type of efficient resolution was Martha Stewart’s solution to her legal woes a few years back. She quickly negotiated a plea agreement, was sentenced, surrendered, served her time, and then got on with her life.

A unique physician will be necessary

This approach will require the right type of individual, and I have no way of knowing whether doctor Lawrence Wean was such an individual. Most physicians, it seems, are willing to postpone the start of trial as often as will be permitted, and they appear further willing to spend all that they have to avoid serving time. These tendencies appear to be true even after conviction, if the case is on appeal (although “bond” is seldom allowed on appeal, I have helped physicians remain free pending appeal). Nonetheless, for the right physician, I find the idea of a quick resolution and sentence intriguing. In the right case, a physician could enter a plea and serve his or her time in three years, at little financial cost, relatively speaking. In sharp contrast, however, at the end of three years, all many physicians will have to show for their efforts is one of more convictions and financial ruin, with a sentencing hearing, a prison term, and an uncertain appeal, on the horizon.

When in doubt, protect your right to appeal

Posted on December 9, 2015 by - Appellate

Sometimes the decision to appeal a verdict or judgment is an easy decision. In anticipation of an appeal, trial lawyers will often make a “record” in the trial court proceeding. Other times, when the legal issues are novel or complicated, both the parties and the trial court understand that the losing party will likely appeal the loss. In these cases, the decision to file an appeal – or correctly stated, the decision to file a “Notice of Appeal” – is a relatively easy decision. Other times, however, the decision to appeal is more complicated, and the time remaining to make such a decision can run quickly.

When time is short – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally contacted days before the appeal period will run. In these cases, there is not enough time to evaluate the merits of the appeal. In order to protect your right to appeal, it is sometimes necessary to file the Notice of Appeal and then sort out the legal issues in soon afterward. If the decision to file a Notice of Appeal turns out to have been the wrong decision, the appeal may then be dismissed. In these cases, where the legal issues are sorted out after the Notice of Appeal has been filed, it is necessary to act quickly, to ensure you have a basis to appeal.

When “appealability” is uncertain – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally contacted because it is unknown whether a particular document or ruling may be appealed. In close-call cases, when time is short, it is often necessary to file what I sometimes refer to as a “precautionary Notice of Appeal,” to protect the potential right to appeal. Immediately thereafter, it is necessary to resolve any legal issues regarding whether the document or ruling is appealable, as these same issues will no doubt be spotted and raised by staff lawyers at the Court of Appeals, or by the opposing appellate lawyer. In those cases where the doubt cannot be satisfactorily resolved, the next step may be to file a motion to determine jurisdiction, to obtain the court’s determination as to whether the particular document or ruling may be appealed.

When the merits of an appeal are unknown – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally asked to provide an independent assessment as to the likelihood of success on appeal, before the period to file a Notice of Appeal expires. This is doable in some cases, where the issues (claims of error on appeal) are known in advance. In other cases, if the trial court record is large and the basis for the appeal uncertain, it will again be necessary to file a Notice of Appeal to protect the right to appeal. The independent assessment will follow soon after, after transcripts, exhibits, etc., are gathered and reviewed. In one such case, I had to advise a family that had lost at the Oregon Court of Appeals that I had no idea what I could do to help them, other than file the Notice of Appeal, gather the record, and start work – if we had a basis for the appeal, we would go forward; if not, we would dismiss the appeal. Indeed, we had a basis to appeal. Sometime later, in a unanimous 7-0 opinion, we won a reversal from the Oregon Supreme Court. The point is that occasionally it is necessary to file a Notice of Appeal, to protect the right to appeal, and then sort the issues immediately thereafter.

Reinstatement after surrender or revocation of your DEA Registration

Posted on December 7, 2015 by - Licensure

In a prior post (November 26, 2015) I wrote about reinstatement of medical licenses for physicians, pharmacists, and nurses after revocation by (or surrender to) the Oregon State Board of Nursing, the Oregon Board of Pharmacy, or the Oregon Medical Board. Today I want to add that in the right circumstances, reinstatement of your DEA Registration by the Drug Enforcement Administration (DEA), is also possible.

Key considerations that a DEA Registration lawyer can help you with

I have guided one physician through reinstatement of her DEA Registration after it was revoked and that experience was like most other reinstatement applications. There are numerous issues to consider before reapplying and a licensure lawyer with DEA Registration experience can guide you through the analysis. For example, reinstatement of a DEA Registration is more likely if the DEA Registration was surrendered or revoked through an administrative proceeding (which is a civil proceeding), as opposed to a criminal proceeding. This should come as no surprise.

Also, if your DEA Registration was revoked, it will be necessary to wait-out the proscribed period of time before reapplying, and if your DEA Registration was surrendered, it will be necessary to wait-out the agreed upon period of time (if such an agreement was reached) before applying for reinstatement, and whatever the circumstances that led to the surrender or revocation of your DEA Registration should be addressed too. If you are smart and plan ahead, the wait period can be used to address or correct whatever it was that led to the surrender or revocation of your DEA Registration in the first place.

Be aware that the online application to reinstate your DEA Registration is designed to solicit full disclosure, and you will be required to disclose the history that led to the surrender or revocation of your DEA registration. Explanations will be required too. Explanations should be carefully constructed, well in advance; the moment of your online application is no time for experimenting with answers, phrasings, etc.

Know that because you will have answered “yes” to the disclosure questions, a larger review will be triggered. Your answers and explanations will need to be complete and accurate (but without saying more) to withstand the heightened level of scrutiny that will be imposed. Finally, you should expect to be interviewed by drug diversion agents before your application to reinstate your DEA Registration will be granted or denied. Such interviews are in-person and recorded. These interviews require thoughtful and detailed preparations; this is not a time to casually “show up and see what the questions are.” An experienced DEA attorney will know what concerns the DEA and can help you anticipate the questions and provide complete, accurate, and helpful answers.

A second chance for a DEA Registration is rare – don’t waste it

A second chance to possess a DEA Registration is rare and the process is complex. You will be dealing with administrative law, DEA lawyers, and drug diversion investigators. Do not waste your opportunity for reinstatement. Plan ahead, obtain competent legal advice, and do not delay seeking competent legal advice until you know things are going badly. By then, the common mistakes will have been made and you will have lessened your odds of success.

 

What happened to the doctor “let go” by Dr. Sylvia Hofstetter?

Posted on December 5, 2015 by - DEA Prosecutions

The story of doctor Sylvia Hofstetter, in what has been characterized as “the largest drug network unearthed so far in East Tennessee,” is unfolding publicly this year, although the investigation certainly traces back several years. I have no personal knowledge of this case, or of Dr. Sylvia Hofstetter, having only read about Dr. Hofstsetter’s case in the media. As I understand it from news reports, Dr. Hofstetter was indicted earlier this year and is facing trial next year for prescription drug charges arising out of a large “pill mill operation” in Knowxville and Lenoir City. The facts as alleged certainly look bad for doctor Sylvia Hofstetter and her colleagues, but they always do, even in the cases that turn out better in the end.

At least one doctor was viewed favorably

What caught my eye was the testimony of an FBI Special Agent, who reportedly testified that Dr. Sylvia Hofstetter let one doctor “go” because that doctor spent more time with patients and wouldn’t always write a prescription for a narcotic. One implication from the Special Agent’s testimony is that this doctor was exercising clinical judgment, which suggests he was practicing medicine, and not intentionally dealing (i.e., diverting) drugs. Even if you assume the factual allegations are true with respect to Dr. Hofstetter and the others, this doctor is situated differently, even in the eyes of the FBI Special Agent. The doctor is not identified by name and I wonder what happened to him. Most often, every physician in the clinic is indicted, but was this doctor spared from indictment?

A “legitimate medical purpose,” or intentionally dealing drugs?

If this doctor was indicted, the issue for him will likely be whether he was practicing medicine or intentionally dealing drugs, and it is further likely his case will become entangled in the quarrel between what constitutes “prescribing without a legitimate medical purpose” (in my opinion, this agency rule is often misused by the DEA), and what constitutes the “knowing or intentional distribution of a controlled substance outside the course of professional practice,” which is the statutory crime legislated by Congress in the Controlled Substances Act, a quarrel I have discussed elsewhere on this website, and will not repeat again here today.

 

Against the DEA, lawyers mount vastly different defenses

Posted on December 1, 2015 by - Appellate, DEA Prosecutions

Part of my work requires that I review trial court records in order to prepare and file briefs on appeal. Consequently, I see the complete record, from beginning to end, prepared by different lawyers. One practice area that keeps me on my toes is defending physicians, pharmacists, and prescribing nurses from prescription drug charges by the DEA. Lawyers defending such cases can take vastly different approaches to their work. Some do a great deal of work to prepare, and do that work well in advance of trial. Others, not so much, saving preparations until close to trial, which can be unnerving to physicians, pharmacists and prescribing nurses, demanding professionals in their own right.

DEA lawyers present uniform prosecutions across the country

My experience includes directly defending or assisting physicians, pharmacists, and prescribing nurses in cases arising out of the Third, Fourth, Seventh, and Ninth Circuits and 13 states, including Indiana, South Carolina, Arizona, Oregon, Virginia, Georgia, Pennsylvania, Florida, Hawaii, Texas, Connecticut, California and Michigan. With this broad experience, I have seen first hand that the DEA lawyers take a similar if not uniform approach across the country when investigating and prosecuting physicians, pharmacists, and prescribing nurses, which should come as no surprise, since the DEA’s work is driven from the top down. I have also seen first hand that defense attorneys are far less uniform in their approach to their work, and the quality of each defense is dependent upon the individual firm and lawyer(s) responsible for preparing and delivering defense.

Working against the DEA, lawyer’s experience reveals common mistake

As a part of the work summarized above, I represented the physician and pharmacist before the United States Supreme Court in the case of Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006). I am also the lawyer that obtained the release from prison of doctors David and Randall Chube, on appeal to Seventh Circuit Court of Appeals, in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). Both these cases are discussed in detail elsewhere on this website, and that effort will not be repeated here, except one point bears repeating: If a case is not well-defended, the DEA will criminalize some aspects of the practice of medicine by confusing the civil standard of care with the criminal conviction standard. Don’t let this happen to you.

An adequate defense can be complicated and expensive

Drug diversion cases (i.e., prescribing or dispensing “without a legitimate medical purpose”) are complicated cases to defend, with each case presenting the intersection between law, medicine and, sometimes, politics, with the occasional involvement of the media. When mounting an adequate defense against the DEA, lawyers face divergent tasks, and it is difficult for one lawyer to do it all. This is not an uncommon problem in litigation generally. When I was a younger attorney, recruiting lawyers to help defend physicians in a small southern medical clinic, one senior attorney commented to me that “if we had four lawyers and $100,000 we could do something with this case,” and his comment is often spot on. The point I would stress to any physician, pharmacist, or prescribing nurse defending against prescription drug charges, is to ensure that your defense team is complete, and that your defense is prepared well in advance of trial.