If you are a physician, pharmacist, or prescribing nurse under investigation by the Drug Enforcement Administration (DEA) for prescription drug crimes, including unlawful prescribing (often called “prescribing without a legitimate medical purpose”), unlawful dispensing, or drug diversion, your liberty is at stake, and I encourage you to seek legal counsel immediately.
Against the DEA, my experience includes these lead cases:
- United States Supreme Court. I am the lawyer that 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). In this case, I sued former Attorney General John Ashcroft and the Drug Enforcement Administration (DEA) (see Complaint (1.24 MB)) in federal District Court on behalf of a physician and a pharmacist who were threatened with federal criminal investigations, prosecutions, fines, and imprisonment, for alleged prescription drug crimes. The Attorney General was wrong and lost at all three levels–in the trial court, in the Ninth Circuit Court of Appeals, and before the United States Supreme Court.
- Seventh Circuit Court of Appeals. I am also the lawyer that obtained the release from prison of doctors David Chube and Randall Chube, on appeal to Seventh Circuit Court of Appeals, in the case of U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008). Both physicians had been convicted of prescription drug crimes. Library Staff has included this case in its listing of “Notable Oral Arguments” heard before the Seventh Circuit over the past 15 years.
These are “lead cases,” important to physicians, pharmacists and prescribing nurses located anywhere in the country. If you desire this kind of legal experience when defending against prescription drug charges, call 503.274.4048, to learn more about my practice.
Against the DEA, I have worked across the country
Since 2004, I have defended or assisted 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. Although these cases were predominantly federal court practice involving prescription drug crimes on appeal, some included practice before state and federal agencies, involving physician practice standards and licensure. This issue has been covered in an article in the American Medical News website.
Prescription drug crimes: Malpractice liability vs. criminal liability
When you practice below the civil standard of care, you are exposed to malpractice liability, and you place your medical license and DEA Registration at risk of the various administrative sanctions discussed under Civil Violations. However, when you commit a prescription drug crime by diverting drugs to an illicit purpose (also known as unlawful prescribing, unlawful distribution, prescribing without a “legitimate medical purpose,” and/or drug diversion), you are exposed to criminal liability and criminal sanctions, including incarceration.
Prescription drug crimes: The civil standard of care vs. the criminal conviction standard
It is important that your attorney understands the interplay between the civil standard of care and the criminal conviction standard. These two legal standards are often confused, conflated, or substituted. This all-too-common mistake expands the scope of the trial unnecessarily, increasing the cost of the defense, while simultaneously enhancing the likelihood of conviction and the imposition of longer prison sentences.
Because a violation of the civil standard of care requires less evidence to prove, knowing the distinction between the civil standard of care and the criminal conviction standard is crucial to a successful defense. It gets tricky in a hurry because DEA attorneys, prosecutors, and the government’s expert witnesses, will often equate the phrase “legitimate medical purpose” with the civil standard of care. When this happens, a criminal drug prosecution begins to look and feel like a civil malpractice action, but with criminal sanctions if you lose. Does this sound familiar?
Another way to say it is that medical error has been criminalized. “Criminalization” occurs when there is an unchecked expansion of the law by over-aggressive law enforcement. Be aware whenever the DEA is using a civil standard of care expert to reach a conclusion about criminality – the DEA is likely criminalizing medical error.
Correctly understood, the phrase, “legitimate medical purpose,” is rooted in agency rule (see 21 C.F.R. § 1306.04), and this phrase does have a role in administrative (civil) and criminal proceedings. It is important to know, however, that the statutory crime of drug diversion is to “knowingly or intentionally” distribute or dispense a controlled substance unless “authorized” by the Controlled Substances Act (CSA). See, 21 U.S.C. § 841(a). Authorization is obtained by “registering” with the Attorney General. See, 21 U.S.C. § 822(a)(2). Persons registered with the Attorney General are authorized to possess, manufacture, distribute, or dispense controlled substances to the extent authorized by their registration. See, 21 U.S.C. § 822 (b). Physicians licensed by a state and registered with the Attorney General are “practitioners” and, as such, they are authorized to prescribe and dispense controlled substances (see, 21 U.S.C. § 829(a)&(b)) in “the course of [their] professional practice.” See, 21 U.S.C. § 802(21); see also, United States v. Moore, 423 U.S. 122, 140 (1975).
It is important that your attorney be familiar with these basic concepts. If you are a physician, pharmacist, or prescribing nurse facing a criminal investigation or prosecution involving prescription drug crimes, this discussion should sound familiar to you. If you would like to discuss these concepts further, call 503.274.4048, to learn more about my practice.
Against the DEA, my success has come in different forms:
- I have guided physicians and at least two dentists through the re-application process to have previously revoked DEA Registrations reinstated, allowing these practitioners to continue their careers practicing medicine and dentistry. I have also guided at least two practitioners with disciplinary history for using a banned substance through their initial application process for a DEA Registration.
- I have kept four physicians “free on bail” pending appeal. The legal presumption and practice is that physicians are taken into custody at the time of sentencing, if not earlier, at the time of conviction.
- I have secured the release from prison or significant reduction in sentence for several physicians. This work was accomplished on appeal, in the Third, Fourth, and Seventh Circuits. One such case is featured in the articles, “Doctors’ sentences overturned on appeal” and “Prosecuted doctors have suffered enough”.
- I have successfully sued former Attorney General John Ashcroft and the Drug Enforcement Administration (DEA) on behalf of an Oregon physician and pharmacist, and won an injunction, stopping the government’s threatened investigations for alleged prescription drug crimes, before those investigations got started. More details on this case can be read in the article, “Judge Blocks U.S. Bid to Ban Suicide Law” and in the Gonzales v. Oregon case description.
If you desire this kind of legal experience when defending against prescription drug charges, call 503.274.4048, to learn more about my practice.
Against the DEA, attorney’s services for physicians, pharmacists, and prescribing nurses facing prosecution for prescription drug crimes, include the following:
Pre-trial and Trial. If you have not yet retained local trial counsel, I can help you evaluate your needs and retain counsel. I have had good success recruiting local counsel in South Carolina, Indiana, Florida and Connecticut. I can also assist with the larger legal strategy and planning, the setting of defense priorities, and the delegation of limited resources throughout the litigation process. I can further provide subject matter expertise before, during, and after plea negotiations, or trial. The scope of the work will influence the fee and retainer agreement.
Subject Matter Expertise. If you have already retained trial counsel, I may still be able to assist your defense lawyers in a consulting capacity by providing subject matter expertise at any point before, during, or after trial. By way of example, I was recently retained by a doctor convicted of a prescription drug crime, to review his pre-sentence investigative report (PSR) and his lawyers’ draft objections, a small amount of work, but very important work. I also consulted multiple times with the physician and with his trial counsel. I did all this in less than ten hours total time. Given what is at stake, the physician greatly appreciated my contribution, and my private second opinion too. Again, the scope of the work will influence the fee and retainer agreement.
Sentencing, Bail, and Appeals. If your case has been lost, or if you expect it soon will be, I can assist with sentencing, bail motions, and offer a full array of appellate services. If you have been convicted of a prescription drug crime and are facing prison time, or you have a family member serving prison time, I know what it takes to devise and implement the type of litigation that is necessary to make a difference.
Please call to learn more about my practice, 503.274.4048.