There is an alarming trend towards aggressive investigations by state and federal authorities on physicians. Whether it is by the state medical boards, DEA or federal or state prosecutors, doctors’ practices are subjected to heightened scrutiny. While this may be traced to the war on drugs, recent deaths related to the abuse of prescription opioids, and the criticism the DEA has faced for its failure to develop measureable results in its enforcement efforts; the genesis is less important than the trend itself for those subjected to the harsh spotlight of scrutiny.
Under the standard that a physician is guilty of criminal conduct if he or she prescribes without “a legitimate medical purpose” and “outside the usual course of his or her professional practice,” many good, decent, over-worked physicians find themselves fighting to keep their licenses, DEA registrations and freedom. This is particularly true for those brave souls who continue to help patients with chronic, non-cancer pain.
The law enforcement climate surrounding prescribing opioids has resulted in many good physicians abandoning that aspect of their practice and patients. This has had the effect of reducing the number of physicians willing to treat those in chronic pain, while increasing the scrutiny on those who continue to do so. Those physicians now have become a limited pool of targets for law enforcement and regulatory agencies.
Most alarming is the increasing number of criminal investigations using undercover agents pretending to be patients with chronic pain. These covert operations may be run independently, or in conjunction with the medical board and DEA administrative authorities. These investigations may be initiated by a complaint from a pharmacy about the number of prescriptions by a particular doctor, a complaint by a patient or the patient’s insurer, a check with the Prescription Monitoring Program revealing a larger number of opioid prescriptions, or a motor vehicle stop of patients that are interviewed about their medications. With little more than a suspicion that the physician may be over-prescribing, a full-fledged undercover operation could be launched.
Should the undercover operation reveal certain conduct or actions that appear inconsistent with law enforcement’s view of normal medical practice, the physician and her office may be subjected to a search warrant, seizure of medical records and computers, administrative or grand jury subpoenas for medical records and testimony, and the entire staff may be interviewed and treated like co-conspirators. The devastating effects of such actions can result in severe economic and reputational losses to the medical practice.
The dangers faced by the physician require immediate retention of experienced, skilled defense counsel to represent and protect their interests. The dilemma faced by the physician may come down to fighting to keep her DEA registration and ability to prescribe Schedule II-V drugs, protecting her medical license or potentially waiving her Fifth Amendment right to remain silent in a criminal investigation. These “parallel investigations” – criminal and administrative at the same time – often present a Hobson’s choice of actively defending one’s medical license by producing documents and testimony, or protecting one’s freedom and not testifying until the full scope and breathe of the criminal investigation is known. Only experienced criminal defense counsel can competently analyze the situation and offer advice about how to proceed. Every licensed professional must worry about their ability to continue in their chosen field, however, the first and foremost concern must be for one’s liberty. Although the instinct is understandable, rushing to defend the administrative action, while a parallel criminal investigation is on-going, may lead to disastrous results.
The dichotomy is straightforward. Physicians are trained to listen to their patients, rely in great part on their self-reporting of their conditions and pain, and to establish a relationship of trust. Law enforcement and regulatory bodies turn that relationship on its head and undermine what is a “legitimate medical purpose.” They hold physicians to a heightened standard of verification and a view that pain patients lie and deceive to obtain the medications for their own addictions or for diversion. Given this dichotomy, is it any wonder that physicians face increasing peril in their practices?
The attorneys at Stahl Criminal Defense have decades of experience representing physicians, dentists and other medical professionals in federal and state criminal and administrative investigations. If retained early in the investigation, our goal is to prevent criminal charges from being pursued or filed, and to protect the license and registration of the healthcare professional.
Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at firstname.lastname@example.org.