Judge Rules DEA Had Probable Cause to Arrest Doctor for Overprescribing Despite His Acquittal (Part 3 of 5 Part Series)
Monday, March 25, 2019
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Please Note: This is part three of five in a blog series about opioid prescribing practices. Click here to read part one and part two.
On March 8, 2019, an Indiana federal district court judge ruled in a civil law suit that the Drug Enforcement Administration (DEA) had probable cause to arrest a doctor and his staff for allegedly overprescribing despite being acquitted at trial. The doctor and his staff at Living Life Clean, LLC, and Drug Opiate Recovery Network, Inc., were found not guilty in 2016, of misprescribing the opioid addiction treatment Suboxone.
The plaintiffs (the doctor and others) subsequently filed suit, bringing claims of false arrest, malicious prosecution, and civil conspiracy against the DEA and the Indiana police.
The Judge’s Ruling.
U.S. District Judge Richard L. Young said that the DEA had presented enough evidence that the prescriptions were being given out without medical examinations and at an incredibly high rate. The evidence pointed to the doctor and his employees prescribing Suboxone "without a legitimate medical purpose" and "outside the usual course of professional practice," which justified the DEA's arresting him and the members his staff. Judge Young granted summary judgment to the DEA and law enforcement defendants freeing them of liability. Click here to read the judge’s order in full.
Court States that Doctor’s Acquittal Doesn’t Mean Innocence.
In his decision, Judge Young stressed the fact that the state court's acquittal of the doctor of all charges is not proof that the initial warrants and arrest were incorrectly obtained and executed. The standard only requires the state to show that there “is a fair probability that a suspect has committed a crime,” which the “affidavit more than establishes,” he said.
To learn more on the case and the acquittal, click here.
Click here to read one of my recent blogs on prescribing controlled substances.
To read about another opioid DEA case in Indiana, click here to read my prior blog.
The Problem With Suing Government Officials.
This is the problem with suing federal and state officials, especially law enforcement officials, for the harm they have caused while executing their duties. The legal doctrine of "sovereign immunity" protects them from civil liability. There are exceptions to this, for example, when the individuals are acting outside the course and scope of their professional duties or when their misconduct is intentional or grossly negligent. However, this is difficult to prove hard to provide and most plaintiffs attorneys will not take such cases. In such situations you must also sue the individuals involved individually (in addition to suing the government or agency), and the individuals may have no assets to satisfy a judgment if you are successful. Because of such intricacies, you should always seek experienced litigation counsel with a track record of successfully suing the government.
Second Guessing Medical Necessity.
This story also highlights another issue we see over and over again; the government's and, especially, the DEA's second-guessing physicians after-the-fact. Even worse, they put unbearable pressure on pharmacists to second guess the medical judgment of physicians who write pain medication prescriptions for their patients. State boards of pharmacy claim that they are amazed that pharmacists are refusing to fill the prescriptions of legitimate pain patients, this is part of the reason why. State boards of medicine state that they receive so many patient complaints from patients that the patients are no longer able to obtain a prescription for a legitimately needed pain medication, this is part of the reason why. Just because a doctor has been treating a patient for pain for many years, whether for cancer, for a broken back, or for many other legitimate medical issues, does not mean that the DEA or other agencies cannot find a paid expert to come into court after-the-fact and testify that there was no medical necessity for such treatment. It apparently happens all the time
Contact Health Law Attorneys Experienced in Representing Pharmacies and Pharmacists.
The Health Law Firm represents physicians, pharmacists and pharmacies in Drug Enforcement Administration (DEA), Department of Health (DOH), medical board, and Food and Drug Administration (FDA) investigations, actions and litigation, including responding to DEA orders to show cause (OTSC). The Health Law Firm also represents physicians, pharmacists and pharmacies in qui tam and whistle-blower cases, regulatory matters, licensing issues, complex civil litigation, administrative hearings, inspections and audits. The Firm represents both plaintiffs (whistle blowers or relators) and defendants in False Claims Act (whistle blower or qui tam) cases. The firm’s attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.
To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Sikich, Chris. “Doctor cleared in charges from Carmel DEA raid.” Indy Star. (August 18, 2016). Web.
Moraff, Christopher. “Addiction Doctor: DEA Shut Me Down So Mayor Could Clean Up Town.” Daily Beat. (April 3, 2017).
Kass, Dani. “Doctor's Trial Win Doesn't Make DEA's Arrest Wrong: Judge.” Law360. (March 11, 2019). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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