Conflating the civil and criminal standards
The civil standard of care and the criminal conviction standard are two distinct legal standards, yet these two legal standards are often substituted, confused, and/or conflated. When this happens, the practice of medicine is “criminalized.” One way this occurs is by the misapplication of the DEA’s rule against prescribing without a legitimate medical purpose, which I discuss on the criminal violations page of this website. It was with this understanding of the law that I shaped the legal theory that won Drs. David and Randall Chube’s release from federal prison in US v. Chube II, 538 F3d 693 (7th Cir. 2008). The Chube case is also discussed on the appeals page of this website.
Criminalizing medical error
What I have learned defending or advising 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, is that the DEA relies heavily, and sometimes too heavily, on chart-reviewing standard of care experts. These chart-reviewing standard of care experts will first determine that the civil standard of care was not met based upon a chart review, and will then leap to a conclusion that the physician was engaged in criminal activity.
This appears to have occurred in Dr. Larry Eckstein’s case, where a chart-reviewing standard of care expert opined that several aspects of Dr. Eckstein’s treatment of an undercover 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.
I earlier discussed Dr. Eckstein’s case in more detail. As I said then, I have no personal knowledge Dr. Eckstein, or his case, having only read about the doctor in the media. If the allegations and expert opinion against Dr. Eckstein are true, Dr. Eckstein may have fallen short of the standard of care, but this is a properly addressed by restricting, suspending, or revoking Dr. Eckstein’s DEA Registration, or his state medical license, or both, in administrative proceedings. It appears, however, that the opinion of a chart-reviewing standard of care expert was instead used to “criminalize” Dr. Eckstein’s practice of medicine, leading to his indictment and arrest.
Malpractice is not a crime
A violation of the civil standard of care (which may amount to professional negligence, or medical malpractice, same thing) is not, without more, a drug crime. Indeed, a physician may commit malpractice when prescribing controlled substances, but that does not mean the physician committed the crime of drug diversion. Drug diversion requires more. Drug diversion requires the knowing or intentional distribution of a controlled substance outside the course of professional practice, i.e., intentional drug dealing. Beware: Whenever the DEA uses a civil standard of care expert, applying the malpractice standard to reach a conclusion about criminality, the DEA is criminalizing medical error. While medical errors do occur in the practice of medicine, adequate remedies are already in place. Criminalization occurs when there is an unchecked expansion of the law by over-aggressive law enforcement. This is what happened in Drs. David and Randall Chube’s case (discussed above), and it appears to have happened in Dr. Eckstein’s case too. Defense attorneys and courts everywhere must guard against this insidious perversion of the law.