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Require Expert Witness A doctor has been charged with

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Require Expert Witness A doctor has...
Require Expert Witness
A doctor has been charged with distribution of controlled substances.
The specific circumstances is that this doctor in NY affiliated with a telemedicine group in Florida in 2006. Patients would require refills & followups between their face-to-face visits to pain centers. Physician Assistants of this FL group would review recent medical records & speak to the patients to determine whether to give the patients refills on their controlled substances in the name of the doctor. The doctor would be available by phone for the PA & perform regular retrospective chart reviews.
Unfortunately, the doctor learned later that the PAs were NOT speaking to the patients and the Telemedicine group was actually a guise for an internet pharmacy.
We need an expert witness who believes that prescribing narcotics in his/her name to patients who a physician assistant in another state would speak to with the retrospective chart review method of supervision was okay back in '06
Submitted: 8 years ago.Category: Criminal Law
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Answered in 28 minutes by:
6/11/2010
Criminal Lawyer: tazechip,
 replied 8 years ago
tazechip
Category: Criminal Law
Satisfied Customers: 38,433
Verified

Are you saying that this physician was gullible enough to do this without ever physically seeing the patient? Is this a medical license problem or a criminal one?

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Customer reply replied 8 years ago
unfortunately he was. He looked at medical records of exams done by other physicians within 6-12months which supported the diagnosis. These patients also were already taking the meds. this is a criminal matter.
Criminal Lawyer: tazechip,
 replied 8 years ago
Well, unfortunately, this isn't a case for a medical expert witness. If it were a question of losing his medical license for improper prescribing, it'd be a difficult case for even the best of expert witnesses to help win, since the "standard of care" would have been violated--it's "out of the box" for a physician to prescribe for any patient (let alone for controlled substances) without physically seeing the patient at least once, although it often happens in the case of NP's and PA's. I've often wondered about any doctor doing on line or long-distance medical practicing, since, if anything untoward happened, all the prosecuting attorney would have to say is something like, "Doctor, you mean to say you diagnosed and treated this patient without even once laying eyes or hands on him/her?" This is obviously a criminal case that couldn't be helped by an expert medical examiner, since it's not a matter of poor medical judgement/practicing/malpractice.
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Customer reply replied 8 years ago
Relist: Incomplete answer.
We would only like an answer which includes suggestions of expert witnesses. Face-to-Face in-person examinations were not required until 2009 from the Ryan Haight act so we are talking about 2006.
Criminal Lawyer: tazechip,
 replied 8 years ago
OK--let me redirect your question to the legal sid of JA, because this is much more a legal than a medical question. I would appreciate your letting me know if anyone can give you an answer, because I still believe this is not an area where any medical expert could help with the criminal charges.
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Customer reply replied 8 years ago
The expert witness is needed to say that such a procedure (Supervision of PAs prescribing narcotics) can be for a legitimate medical purpose in the usual course of professional practice back in 2006. There is a difference between a malpractice/bad judgment versus a criminal intent/no exercise of medical judgment scenario. Thanks for your help.
Criminal Lawyer: tazechip,
 replied 8 years ago
In that case, you should be able to find multiple experts with the help of an attorney that would testify to same. However, you should know that, as a pain management physic***** *****censed in the state of Florida, PA's and NP's are not allowed to write for controlled substances, even under the direction of a licensed physician, unless, perhaps, the physician countersigns the prescriptions on site. But what I've been trying to tell you is that the problem is the scam your physician got wrapped up in. Sometimes, ignorance of the law is not considered an excuse for breaking it. If he's been charged with distribution, they're saying not that it isn't valid for him to prescribe, but that, in this circumstance, the prescription wasn't valid. I hope you can see what I mean by saying this isn't a medical situation. If he had been on site, there might not have been a problem, but it looks like he's being charged with involvement in distribution of controlled substances because his license wasn't valid in the state of Florida.
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Customer reply replied 8 years ago

How are PAs supervised?
All PA practice must be supervised, although the exact nature of that supervision depends on the physician-PA relationship (their formal or informal contract).

The actual supervision can vary from the relatively strict, with the patient having to be ‘reviewed’ by the physician before they can leave the facility, through to a looser arrangement where the supervising physician reviews case notes weeks retrospectively. Some PAs practice in a near autonomous manner, with supervision provided using telephone and telemedicine links with their supervising physician.

In simple terms, the relationship between the PA and the physician determines the PAs’ scope of practice.

Telemedicine—using technology to facilitate interactive consultations between physicians and physician assistants—also will expand the use of physician assistants. Job opportunities for PAs should be good, particularly in rural and inner city clinics, because those settings have difficulty attracting physicians.


Wanted to show you this link from New York:
http://www.health.state.ny.us/professionals/doctors/conduct/physician_assistant.htm

Countersignature of such orders may be required if deemed necessary and appropriate by the supervising physician or the long term care facility, but in no event shall countersignature be required prior to execution.

F. Prescriptions

In an outpatient setting, the PA may prescribe all medications, including Schedule II - V controlled substances, if delegated by the supervising physician.

H. Malpractice Insurance

Individual liability coverage for the physician assistant is advisable but not required. PAs share responsibility and liability with their supervising physicians and either or both may be named in a malpractice action. While PAs are considered "dependent professionals," they are still responsible to perform competently.


These are newer Florida requirements:
https://www.flrules.org/Gateway/View_notice.asp?id=8199524
https://www.flrules.org/gateway/RuleNo.asp?id=64B8-30.012
https://www.flrules.org/gateway/chapterhome.asp?chapter=64B8-30
Attached is the rules adopted 2003 which specifically allows Physician Assistants to prescribe on Physicians behalf under indirect supervision (the current one is more liberal). Furthermore as I stated before, it allows for retrospective chart reviews every 7 days (& after a 6month period the Physician is allowed to do chart reviews every 30 days). Recent rules for PAs are even more liberal in both NY & FL.
Criminal Lawyer: tazechip,
 replied 8 years ago
Sorry for the delay, and thanks for the above. Let me ask you this--can you tell me exactly why the charges of illegal distribution have been brought against this doctor, in other words, how do they say he has broken the law beyond the term illegal distribution?
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Customer reply replied 8 years ago
According to the law a controlled substance can only be prescribed for a legitimate medical purpose in the usual course of professional practice. So the most damaging part is the "usual" because as you stated a lot of doctors wouldn't prescribe to any patient who they didn't see personally.

However as is common in the military, prisons, long-term health facilities, and in weekend coverage situations, controlled substances are prescribed without seeing the patient often without speaking to the patient or looking at their chart.

A PA sees a patient in a prison & calls their supervising physician to convey the history & exam. The physician approves the controlled substance.

A physician is covering for another, a patient calls on the weekend saying they have run out of their narcotic for their back pain & they are a patient of such & such, the physic***** *****kely gives the patient a 3-4 day supply & tells the patient to reschedule a visit with the original doc.

So we don't feel that it is necessarily so cut & dry. Now of course you hear all about the internet pharmacies & their illegality but this was not common back in 2005-6. Basically it is necessary to combat the governments hindsight with the doctor's foresight.

We agree that from a liability issue it really is not wise but is it CRIMINAL??? if the pt had a valid diagnosis from another physician months ago & the PA spoke to the patient?
Criminal Lawyer: FamilyPhysician, Criminal Law Answer Team replied 8 years ago
FamilyPhysician
FamilyPhysician, Criminal Law Answer Team
Category: Criminal Law
Satisfied Customers: 12,816
Experience: Criminal Law Expert
Verified
The other expert if offline at this point.

One of the key points would be the fact that NOBODY seemed to have actually examined the patient. The example you gave of a PA in a prison is vastly different than somebody prescribing a controlled substance based on a medical record review. That PA theoretically saw the patient and was able to make some professional assessment based on the history and physical examination.

The DEA has long held the position that controlled substances can not be prescribed based on an internet (distance) review of some information - it requires a bona fide doctor-patient relationship.

For a prescription to be valid under federal and state law, there must be a bona fide doctor patient relationship, which is defined by most state laws to require a physical examination. “Completing a questionnaire that is then reviewed by a doctor hired by the internet pharmacy could not be considered the basis for a doctor/patient relationship.” Vol. 66 Federal Register 82, PP 21181-21184 (April 27, 2001)

Moreover, if the prescription drug is a controlled substance and the drug is being imported into the U.S. from a foreign country and being shipped to anyone other than a DEA-registered importer, such transaction is a felony in violation of Sections 957 and 960 of Title 21, United States Code.

http://www.justice.gov/dea/illegal_internet.html
(Please note that the portion in red was published in the Federal Register in 2001, long before this incident occurred)
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Customer reply replied 8 years ago
These are certainly good points. There are some differences.

First, with a doctor patient relationship a physical exam is not necessary. If someone calls your office & you give them medical advice, they follow it & have problems they can sue you & you can't say that you didn't establish a relationship with them.

Secondly your law talks about a "questionnaire." As stated previously, the PAs were actually (or were supposed to be) talking to the patients. The doctor reviewed the PAs notes, the medical examination performed by the other doctors who preceded him whom had establish the diagnosis, & the PA supposedly spoke to the patient. I know not the best of circumstances but certainly not in the same category as in your description.

For example, this is the 2003 Florida Telemedicine requirements:

64B8-9.014 Standards for Telemedicine Prescribing Practice.

(1) Prescribing medications based solely on an electronic medical questionnaire constitutes the failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent physicians as being acceptable under similar conditions and circumstances, as well as prescribing legend drugs other than in the course of a physician’s professional practice.

(2) Physicians and physician assistants shall not provide treatment recommendations, including issuing a prescription, via electronic or other means, unless the following elements have been met:

(a) A documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug is prescribed.

(b) Discussion between the physician or the physician assistant and the patient regarding treatment options and the risks and benefits of treatment.

(c) Maintenance of contemporaneous medical records meeting the requirements of Rule 64B8-9.003, F.A.C.

(3) The provisions of this rule are not applicable in an emergency situation. For purposes of this rule an emergency situation means those situations in which the prescribing physician or physician assistant determines that the immediate administration of the medication is necessary for the proper treatment of the patient, and that it is not reasonably possible for the prescribing physician or physician assistant to comply with the provision of this rule prior to providing such prescription.

(4) The provisions of this rule shall not be construed to prohibit patient care in consultation with another physician who has an ongoing relationship with the patient, and who has agreed to supervise the patient’s treatment, including the use of any prescribed medications, nor on-call or cross-coverage situations in which the physician has access to patient records.

(5) For purposes of this rule, the term “telemedicine” shall include, but is not limited to, prescribing legend drugs to patients through the following modes of communication:

(a) Internet;

(b) Telephone; and

(c) Facsimile.

Specific Authority 458.309, 458.331(1)(v) FS. Law Implemented 458.331(1)(q), (t), (v) FS. History–New 9-14-03.

The "documented physical examination" does not state that the PA/MD must examine the pt at each encounter or even be the same person who did the exam. Because of this vagueness, the Ryan Haight act in 2009 clarified this point but remember that we are talking about 2006.

Let's say that the PA did represent to the doc that they saw the patient face-to-face. Would that significantly change the circumstances? So basically the doc had trusted a PA across state lines who wrote notes documented they're personally examining the patient as well as having a previous documented exam (w/in 12months) by another MD establishing the diagnosis & need for controlled substances. But prescriptions were sent out in the doctor's name. Would that have been okay?
Criminal Lawyer: FamilyPhysician, Criminal Law Answer Team replied 8 years ago
I am a physician (as is the other expert who has been answering you), so my comments represent my professional opinions as a physician. They do not represent legal advice or opinions:

This practice of prescribing a controlled substance based on a "medical record" from some physician who is not party to the arrangement (not one physician in a group treating a partner's patient while they are on vacation) is inappropriate. While you may be able to find some attorney to argue that this is technically not a violation of a particular statute - this is NOT the standard of care.

Physicians have a legal and ethical responsibility to ensure strict compliance with local, state and federal laws. Prescribing controlled substances based on some records (which could have been fabricated by the patient), without personally speaking with the patient and verifying all the information is unethical.

I don't know of a single ethical physician who would contend that this was consistent with any standard of care. While you may find one or more individuals with a MD after their name that might be willing to sell their "expert" opinion that this was acceptable medical behavior, the prosecution would have no problem finding 10 times as many respected experts in the field who would provide more compelling testimony that this was unethical and illegal.
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Criminal Lawyer: tazechip,
 replied 8 years ago
I'm back--let's cut through all the discussion so far and get to the nitty-gritty. I'm still curious. Violating standard of care may subject a physician to malpractice suits, BUT IT"S NOT A CRIMINAL OFFENSE! I repeat my last question--how was this determined to be distribution, as in they're accusing the doctor of being a "pusher?"
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Customer reply replied 8 years ago
Correct. Based on the Title 21 statute, controlled substances MUST be given for a legitimate medical purpose in the usual course of professional practice. So they are saying that because the doctor didn't do something a bunch of other doctors would do, that it is illegal,
1. he should go to prison (mandatory 10 years),
2. lose his med license forever,
3. lose his DEA certificate for ever,
4. and of course have a felony record.

BTW, the government has no evidence that anyone who had been given the prescriptions:
1) was not the person who they claimed to be
2) that their records were false or inaccurate
3) that anyone was addicted to narcotics
4) that anyone sold or otherwise diverted the drugs
5) that anyone was hurt, overdosed, commited suicide, or otherwise harmed.
etc.

So basically solely on the basis of the word "usual" this doctor may be going to prison for a very long time. We agree that the doctor exercised poor judgment but criminal "knowingly & intentionally?"

And what of the last question in my last response? If he had thought that the PAs were seeing the pts in-person would that have made it okay?
Criminal Lawyer: tazechip,
 replied 8 years ago
But it seems the problem lies not in whether it was poor medical judgement, but in the fact, as I mentioned before, that the validity of his NY license was not transferrable to Florida. It would seem that, if the patients were in NY but a distance from his practice and not seen physically by him, there might not be any problem. Let me ask you this--if you yourself are not an attorney, has he retained one, and, if so, what has that attorney said about the way he plans to defend the case?
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Customer reply replied 8 years ago
They say that the key is to find an expert witness. Who can just say that they would have been comfortable trusting PAs to examine patients & rely on their examinations (as well as the documented medical exam of another physician which established the diagnosis & prescription) to prescribe controlled substances. Being in another state doesn't seem to be the most impt aspect. Just the trusting of a physician assistant to act on your behalf.
Criminal Lawyer: tazechip,
 replied 8 years ago
I'm wondering about this attorney's experience in this area--and he might be very experienced. We're not talking about the trusting of PA's--that's implicit in any M.D./PA relation. Again--the trust aspect is a medical malpractice question, and not a criminal one. If a law were broken here, it means that someone is accused of illegally distributing drugs and/or writing illegal/invalid prescriptions. I think the crux of the prosecution's case here is proving that the doctor's signature on whatever the prescription form involved constituted a forgery--in essence, an invalid prescription which was use to obtain medication. This wouldn't make the patient criminal, but it could be construed as the doctor's "pushing" drugs.
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Customer reply replied 8 years ago
Well I'm not sure about this forgery aspect but they are saying that the doc in trusting the PA did not really do his job & exercised no medical judgment in the prescribing of narcotics. To them it was criminal & for profiteering. Especially since it ended up that the PA didn't actually see the patient. I guess since the physician wasn't on site, that it was criminally irresponsible & thus "pushing" drugs.

The standard as stated is that all legal prescriptions must be issued for a legitimate medical purpose in the usual course of professional practice.
Criminal Lawyer: tazechip,
 replied 8 years ago
He's guilty of poor judgement and not doing his "due diligence" when he signed on for the job, but, again, to go back to your original question, medical expert witnesses are only used for trying to prove that the "standard of care" was applied or broached, but that's a term used only to determine medical liability, not criminal intent. As I said before, I don't think any medical expert witness's testimony could matter in a criminal trial. In fact, except for the PA's not actually seeing the patients and the patients being in Florida and the doc in NY, you could argue that the standard of care was met. That's why I'm saying if there is a crime involved here, it must be for the nonmedical reasons.
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Customer reply replied 8 years ago
We agree that ordinarily in a criminal case there is no issue about liability. However, this law puts a civil standard of proof on a criminal statute. The doctor is held (just like in Good Samaritan cases) to a higher standard. Thus the prosecution doesn't have to prove illegality just that the doc acted with wanton disregard & issuing illegal prescriptions. So the prosecution will be bringing in their experts to say that the doc acted way out of the realm of professional practice & we need our own experts to counter.
Criminal Lawyer: tazechip,
 replied 8 years ago
far, even with a lawyer involved, you haven't been able to locate said expert?
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Customer reply replied 8 years ago
Well the attorney doesn't usually handle medical cases. And this is an unusual case.
Criminal Lawyer: FamilyPhysician, Criminal Law Answer Team replied 8 years ago
With all due respect to this attorney, unless the doctor wants to spend the next 10 years in a prison cell - you need to immediately need to consult with a health care attorney who has experience dealing with such cases.
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Criminal Lawyer: tazechip,
 replied 8 years ago
I fully agree--but I think this is best served by a criminal defense attorney. not a health care/malpractice one.
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Criminal Lawyer: tazechip,
 replied 8 years ago
considering all the time I've spent with you, an accept by you would be appreciated.
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Customer reply replied 8 years ago
Although your dialogue is much appreciated. the end result is that we wanted an expert & you've offered none, nor any leads other than "to get a defense or medical malpractice/healthcare attorney." This did not answer our question ((Require Expert Witness A doctor has been charged with distribution) and certainly did not help us. We are at the same place before we submitted the question which is that the doc did something that was not wise but not criminal. But no expert witness. Sorry.
Criminal Lawyer: FamilyPhysician, Criminal Law Answer Team replied 8 years ago
I'm sorry that we were not able to provide you with such an expert. Based on the information that you have provided, I am concerned that the physician did indeed step over the line into criminal activity.

The issue would seem to be the "standard of care", which if violated, places the physician at risk of criminal prosecution. Attorneys who deal with medical malpractice defense, fraud and abuse, and medical board disciplinary actions would be the most appropriate for dealing with this type of problem.

These attorneys often have in their list of contacts, physicians who have testified on behalf of other clients who have been accused of similar misconduct (be it criminal or not).

I wish you (and/or the physician good luck).
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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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