Opinion
No. CR-288821.
Decided March 29, 1993.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and James A. Gutierrez, Assistant Prosecuting Attorney, for plaintiff.
Christopher Stanley, for defendant.
In this case, the court is called on to determine whether the state has proven beyond a reasonable doubt the defendant's guilt in seventy-six counts of drug law violations involving sale of controlled substances and making false prescriptions. After the state presented its case in chief, the court dismissed thirty-three counts and four additional counts were nolled by the state. The court is now called upon to resolve the principal issue presented in this case: Has the state proven to the requisite degree of proof that the defendant doctor acted outside the course and scope of professional medical practice in issuing prescriptions for controlled substances? The answer to this controlling question is gleaned from a thorough review of the evidence presented by the state to determine what the facts are in this case, and then careful analysis with other jurisdictions to aid the trier of fact in reaching a verdict as to defendant's conduct.
The state presented a series of witnesses, most of whom were former patients of defendant, Demetrius Pawlyszyn, M.D., who described as best they could what they recalled about various office visits with him. Most admitted lying to the defendant regarding the history they presented; most admitted they would have done or said anything to get a prescription from the defendant. Almost all stated the doctor kept records, determined what complaints were presented, and then would either write a prescription or do some cursory examination before writing the prescription.
It is the state's position that the defendant has used his medical office as a sham for the ability to charge $25 per office visit to patients who came to him for prescriptions on a regular basis because they were addicted to the medication. The evidence shows that the vast majority of the defendant's patients all received prescriptions for Vicodin, Valium, Tylenol with codeine and/or Hycodan cough syrup every time they came to the office. It is generally not disputed that the defendant has no office personnel whatsoever, and that prescriptions are only given to patients if they appear in the office, and usually only once per month.
The state's witnesses were all given full immunity from prosecution, in exchange for their testimony, but all were ill-prepared to testify. They could not recall specific dates or treatments. Many were scared and testified only because the prosecutor threatened to prosecute them if they refused to testify. Four patients who so refused were placed on the defense witness list as defense witnesses, but did not testify because they were subsequently indicted prior to commencement of this trial.
The state's case was further complicated by failure to obtain necessary waivers from testifying witnesses, failure to fully disclose to defense counsel the complete details of arrangements made to entice witness testimony, and the failure to fully obtain all medical records of all witnesses who testified. One witness was equipped by the state with "buy-money," but this money was never recovered from the defendant; another was "wired" on an undercover visit, but the tape was not offered into evidence.
The state believes that because the defendant has prescribed a large quantity of drugs — sixty gallons of Hycodan syrup; fifty-three thousand Valium tablets; and thirty-five thousand Vicodin pills over a seven-month period to all of his patients — he is guilty of dealing drugs. In addition, certain of the indictments contain a school-yard specification, because, as the state avers, the doctor's office is located within one thousand feet of a school, but this fact was not proven at trial.
Testimony was further presented at trial from one medical internist who testified for the state that, in his opinion, the defendant's conduct fell below standards set forth in R.C. 4731.22(B)(2), (3) and (6) in that the defendant failed to use reasonable care discrimination in the administration of drugs, failed to employ acceptable scientific methods in selection of drugs, prescribed drugs for other than legitimate therapeutic purposes, and departed from minimum standards of care of similar practitioners under similar circumstances. This expert reviewed records given to him by prosecutors, never examined any of the patients, admitted he was uncertain if the records were complete, and also believed waivers had been signed, but never reviewed or asked to review such. He did admit, however, that, in the last analysis, the decision of what drugs to prescribe and the frequency and quantity or strength of the medication are largely a matter of medical judgment.
In his defense, the doctor testified that he did write the prescriptions offered in evidence. He maintained these were written in his office and that they were given to patients who complained to him of back pain, bronchitis, and/or a variety of other pains or work-related injuries. His prescription pattern is medication to relieve the pain, cough syrup to relieve congestion and ease coughing, and a nighttime medication to promote sleeping.
The issue presented is whether this defendant can avail himself of the provisions of R.C. 2925.03(B), which exempt medical practitioners from drug trafficking if their conduct is in accord with R.C. Chapter 4731.
The court has reviewed a series of judicial opinions which assist the trier of fact in determining what response ought to be made to the facts as presented based on the law which applies to those facts. In State v. Sway (1984), 15 Ohio St.3d 112, 15 OBR 265, 472 N.E.2d 1065, the defendant physician, Daniel H. Sway, was indicted for seventeen counts of selling a controlled substance. The bill of particulars in that case suggested he delivered written prescriptions to a female patient in exchange for sexual relations. The defense was that the delivery of a prescription was not a sale of a controlled substance. The Ohio Supreme Court has concluded, albeit five to two, that, "[a] physician cannot insulate himself from criminal liability by arguing that he sold an unlawful prescription, instead of a narcotic drug." Id. at 115, 15 OBR at 267, 472 N.E.2d at 1068. The holding in the case is:
"A physician who unlawfully issues a prescription for a controlled substance not in the course of the bona fide treatment of a patient is guilty of selling a controlled substance in violation of R.C. 2925.03." Id. at the syllabus.
In State v. Silver (May 16, 1991), Cuyahoga App. No. 58446, unreported, 1991 WL 81518, the appellate court upheld drug convictions of Kenneth J. Silver, D.D.S., who, according to the evidence, treated Donald Parker for a tooth extraction in August 1988, and issued a prescription for Percodan to ease pain. Thereafter, defendant Silver met Parker over twenty times, frequently on the street near the office, and issued prescriptions for Percodan, Demerol and Valium. Parker received prescriptions in his wife's name and other names. Parker testified that, in exchange for these, he promised furniture and jewelry to the defendant. On September 20, 1988, Parker exchanged a $5,000 necklace and a VCR for drug prescriptions with defendant in a parked car outside defendant's office. The appellate court concluded this evidence demonstrated that defendant "[s]old drugs to the Parkers for other than legitimate therapeutic purposes."
In United States v. Kirk (C.A.6, 1978), 584 F.2d 773, defendant Phillip E. Kirk, M.D., was convicted of forty-eight counts alleging a conspiracy to enable distribution of Preludin, Desoxyn, and other drugs. Evidence at trial showed issuance of prescriptions with great frequency to the same individuals, one witness averaging three to four visits per week, and another patient, two days in a row. Payment was made to Kirk for the number of pills issued, not for office visits.
In State v. Gotsis (1984), 13 Ohio App.3d 282, 13 OBR 346, 469 N.E.2d 548, defendant George Gotsis was convicted of nine counts of violating R.C. 2925.23(B)(1), making, uttering, or selling false prescriptions. The record in that case revealed that, "on at least nine occasions, [Metropolitan Enforcement Group] agents requested prescriptions for controlled substances indicating to Gotsis that they had no medical problems and wanted the drugs for resale and/or for their own personal use to `get high.' In each case, Gotsis did not elicit a chief complaint; did, at best, a cursory physical examination; and failed to take any patient history." Id. at 285, 13 OBR at 349, 469 N.E.2d at 553.
In State v. Williams (1992), 76 Ohio App.3d 806, 603 N.E.2d 383, the defendant, Robert A. Williams, M.D., pre-signed prescription blanks for periods of his absence from his practice. The appellate court reversed defendant's convictions for writing false prescriptions, finding no evidence of illegal drugs.
Reported cases catalog what a medical practitioner ought to do in treating patients prior to prescribing a controlled substance: elicit a chief complaint, perform a minimal physical examination, and take a patient history. State v. Gotsis, supra. Other considerations include regulation of dosage, frequency of prescription, and the basis for determining the professional fee. United States v. Moore (1975), 423 U.S. 122, 143, 96 S.Ct. 335, 345, 46 L.Ed.2d 333, 348.
Applying these tests and reviewing all the evidence, the court finds the evidence proves this defendant met patients only in his medical office; he kept records of all visits, and charged a $25 fee for office visits. He performed minimal exams on some occasions, and had medical histories on all patients. Only a one-month supply of a controlled substance was prescribed for a given patient. Clearly, breaches of medical standards as alleged by the prosecution in this case do not reach the flagrant factual situations presented in Sway, Silver, Kirk, or Gotsis. Here, the court is invited to find by evidence beyond a reasonable doubt that the medical judgment of the state's expert, Dr. Stephen A. Rudolph, who reviewed records, is superior to the judgment of the defendant, who met the patients and prescribed medication for them on a regular basis.
The state wants the court to reach inside medical practice and determine that this defendant-medical practitioner either sold drugs or issued false prescriptions for patients rather than prescribed controlled substances for patient-described symptoms — based upon the personal opinion of one other internist who admitted in the last analysis the matter is largely one of medical judgment. The reality is that the same state has licensed this defendant to exercise his judgment to prescribe these controlled substances and thus far the State Medical Board has not instituted proceedings to revoke that license.
Proof beyond a reasonable doubt requires evidence more credible than the patient-witnesses who testified and who admitted lying to the doctor to get drugs, and who were pawns of the state because of grants of immunity given to them and other special considerations offered to them for their testimony; it requires evidence more persuasive than the casual opinion of one of defendant's peers who testified that defendant's conduct fell below statutory minimums. This evidence hardly forms the basis of a verdict of guilt beyond a reasonable doubt for conduct which is less egregious than that presented in Sway, Silver, Gotsis, or Kirk, especially where the defendant, as in this case, has maintained at least the appearance of a medical practice. Whether the State Medical Board can find, or will find, by clear and convincing evidence that defendant's conduct of his medical practice falls below the standards of R.C. 4731.22, which could result in a revocation of his medical license, this court, based on the evidence presented and applicable case law, cannot find that the state has proven his guilt of the sale of drugs or issuing false prescriptions beyond a reasonable doubt.
Judgment for defendant.