Prescription and Medical-Purchase Fraud

Just as patients are prohibited from medical shopping, doctors are prohibited from writing prescriptions without a legitimate medical purpose; the idea is that doctors should not act as drug dealers and “divert” controlled substances for illegitimate uses. Law enforcement can come down hard in these cases.

California Health & Safety Code Section 11153 deals with this matter. Under the statute, a doctor may not issue a prescription:

• Outside the usual course of the doctor’s practice
  
  
• For a medical purpose that is not legitimate
  
  
• Including to an addict outside of professional treatment
  
  

Example I
Dr. Martínez is a Los Angeles doctor. He is working in an urgent care center when Maria enters. She complains of back pain caused by a car accident, as well as a stressful desk job. Dr. Martínez takes a careful oral history and performs a physical exam on Maria. It is determined that the pain is caused by a legitimate medical condition associated with orthopedic issues. Maria explains that her son is going to have a birthday party that weekend and she needs help because of the activities involving her ten-year-old child that intrude upon her home. The doctor asks Maria if she is already taking pain medication and Maria convincingly says no, “only Advil and Tylenol.” Dr. Martínez believes Maria is in pain and not an addict and gives Maria a one-week prescription for hydrocodone. Follow-up with a doctor again is recommended. It does not appear that Dr. Martínez wrote an illegal prescription. He conducted an exam on Maria and made a diagnosis in good faith consistent with pain. The prescription for hydrocodone is for a legitimate medical purpose.

Example II:
In the streets of Los Angeles Dr. Martínez is “Dr. White.” Pamela hears about Dr. White in an Internet chat room and tracks him down at his clinic. Pamela waits many hours to see Dr. White, as a long line of people enter and leave the office. Once White arrives in the examination room, there is no exam. Dr. White simply asks what she needs. Pamela says she needs something to “get to the limit” and Dr. White nods. He notes some details in a chart and writes a script for 90 hydrocodone pills. He tells Pamela to “come back” if the problem persists. Dr. White may have illegally written a prescription. He did not examine Pamela nor take a medical history. He did not ask Pamela about specific details related to diagnosis or treatment. There was no evident legitimate medical purpose to support the prescription.

Example III:
Let’s say that in the above example one of the patients sitting next to Pamela in Dr. White’s waiting room is a Los Angeles narcotics officer working undercover and goes by the name Pepe. He has been conducting surveillance on Dr. White and his prescription activity. Pepe’s appointment goes almost exactly like Pamela’s and leads to Dr. White being prosecuted for illegally writing a prescription. There may be a defense here, if it can be shown that Dr. White’s illegal conduct was actually planted in the mind of the doctor by Pepe. Dr. White may have difficulty succeeding with this defense under these circumstances, but there is a possibility of a defense in such “sting operations” or cases.

Example IV:
Two years ago, Andrea was injured in a car accident. She has suffered from back pain ever since. Her primary care doctor prescribes hydrocodone and Percocet for a year and then said that was it. He recommended Andrea consult a pain specialist, which she did without success. The pain has been worsening and, knowing her primary care physician will not write prescriptions for pain medication, for the last year Andrea has visited seven doctors in different offices and clinics around the city. She does not tell the new doctors about the other doctors or pain medications, even when asked. She goes to different pharmacies to fill prescriptions. Andrea is participating in medical shopping. She is trying to get as much hydrocodone and Percocet as possible without a single doctor or pharmacy filling prescriptions for the medication. The fines go up to $20,000. These statutes are not mentioned in the “Penal Code §1000 drug diversion statute or Penal Code § 1210 Proposition 36 probation statute.” This means there is a probability that they are not eligible for the more rehabilitation-oriented punishments established by those laws. One can always make a case for leniency and treatment, but courts so far have interpreted strictly the statutes that apply only to the specified offenses.

Nevertheless, there are mitigating circumstances that can be used in a defense, such as: Good faith. Section 11153 HS is not designed to frustrate legitimate prescriptions by doctors. A doctor may still prescribe medication in the usual course of the doctor’s professional practice for legitimate medical purposes. The doctor will be in the clear, so long as he or she acts in good faith when writing the prescription. If the doctor acts in good faith, he or she will have a valid legal defense, even if the doctor made a wrong diagnosis or if the prescribing was negligent or if the doctor’s standard of practice differs from that of other doctors.