Groundbreaking 4th Cir Opioid Decision: Physician Conviction Overturned
Ronald W. Chapman @RonChapmanAtty is a healthcare fraud defense attorney specializing in representing healthcare providers facing federal white collar crime allegations. He has successfully represented a significant number of physicians to acquittal on unlawful prescribing and healthcare fraud allegations and investigation dismissals. He is a highly regarded expert in the field and regularly speaks and writes nationally on the topic.
Finally some good news out of the 4th Circuit today. The United States Court of Appeals for the 4th Circuit overturned the conviction of a physician convicted of unlawful prescribing. The 4th Circuit ruled in United States v. Brizuela (order attached below) that patients whose treatment was not made at issue in an indictment cannot be called by the Government to prove the conduct in the indictment. This groundbreaking decision will have the impact of preventing the common Government tactic of indicting certain conduct and introducing other conduct at trial by surprise. When the Government issues an indictment, it's required to present a case to a grand jury and allow the grand jury to determine whether an offense has been committed. Typically, evidence of other crimes, acts or wrongs is not admissible at trial unless it's included in the indictment. See, Fed. R. Evid. 404(b). There are some exceptions where the conduct can show a motive, opportunity, method of operation, or common scheme or plan. In United States v. Brizuela, the 4th Circuit boldly held that evidence of other independent prescriptions was not evidence of a common scheme or plan because the decision to prescribe to a single patient is an isolated decision unless supported by some other evidence of a common scheme or plan (such as treatment of a recruiter's patients).
Dr. Brizuela was a physician operating a pain management and addiction medicine clinic in West Virginia. He was indicted by the U.S. Attorneys Office after an investigation by the Drug Enforcement Administration related to complaints of a patient death. The US Attorneys office indicted him for 21 prescriptions to five different patients. However, at trial, the Government filed a 404(b) notice that it intended to offer prescriptions for other patients. The Government argued that this testimony was relevant because it showed that Dr. Brizuela's prescribing was not a mistake but rather an intentional act and that he practiced in a similar to other patients. Quoting another 4th Circuit case, United States v. Alerre, 430 F.3d 681, 691 (4th Cir. 2005), it argued that uncharged prescriptions can be used to prove the "extent and severity of Brizuela's violation".
In ruling very favorable to physicians facing drug trafficking prosecutions in the future, the 4th Circuit Court of Appeals determined that evidence of prescriptions not charged in an indictment and the testimony of patients whose treatment was not charged by the Government is inadmissible to establish indicted conduct. Intrinsic to this ruling is that the distribution of a specific prescription to a specific patient is a singular act and not a continuing scheme. The court boldly stated:
"It is certainly true that in prosecuting doctors for unlawfully distributing controlled substances under § 841, the government must prove “beyond a reasonable doubt that the doctor was acting outside the bounds of professional medical practice.” Alerre, 430 F.3d at 690 (internal quotation marks omitted). And we have previously allowed “evidence that a physician consistently failed to follow generally recognized procedures  to show that in prescribing drugs he was not acting as a healer but as a seller of wares.” Id. at 691. But neither Alerre nor any other case identified by the government allow admitting the testimony of patients whose treatment was not the basis for a defendant’s § 841 charges, or permit admitting uncharged acts that are not necessary to the stories of the prescriptions cited in a § 841 charge.9 See Alerre, 430 F.3d at 691; United States v. McIver, 470 F.3d 550, 561 (4th Cir. 2006). As stated above, a doctor’s violation of § 841 is prescription specific, and writing a prescription only violates § 841 if, in doing so, the doctor strays from bounds of professional medical practices in treating that specific patient. See Tran Trong Cuong, 18 F.3d at 1142; United States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995). Therefore, the relevant “story” for a § 841 offense is whether in writing the cited prescription, the defendant doctor was treating the patient receiving the prescription within the bounds of professional medical practices.
Because the Government in the Brizuela case did not "connect the story" between the unindicted patient treatment and the indicted patient treatment, Dr. Brizuela's conviction was overturned and remanded for a new trial. The Government has the option of appealing to the United States Supreme Court, however the Court is unlikely to hear the issue.