Wed 19 Jul 2006
Below is a good article we got on the sentencing hearing of Dr. Tom Merrill in Florida.
John Flannery, who works closely with PRN and is now handling the lion's share of the cases we are supporting, does a masterful job of asserting his client's innocence and the doctor's abuse at the hands of a system which can only be characterized as conducting witch trials of physicians who treat pain.
Dr. Merrill is a wonderful man who has been railroaded. He was poorly represented at trial.
There are many things wrong with what happens in addition to poor representation. The judges allow any and all prejudicial testimony in, regardless of its lack of relevance. The prosecutors are experts at conjuring up the specter of evil opioids being delivered into the clean communities by the evil doctor.
We are proud of John's excellent work and suggest you look more closely into the case. I have attached the briefing in this email.
Family Member of a Chronic Pain Patient
Pain Relief Network
'Standing up for patients in pain and the doctors who treat them'
(505) 989-3929 Home/Office
(505) 995-6201 Fax
(505) 603-8875 Cell
Pain Relief Network's 800 Number
Doctor gets life sentence
07/17/2006 (Pensacola, Florida)- Dr. Thomas Merrill knew his fate well before he was sentenced Monday: life behind bars.
But that did not stop his attorney from fighting all day for probation.
U.S. District Judge M. Casey Rodgers sentenced Merrill, 70, of Apalachicola, to life in prison for 98 counts, including illegally dispensing controlled substances with five cases in which a death resulted, defrauding health-care benefit programs and wire fraud.
His lawyer, John P. Flannery II of Leesburg, Va., filed motions last week asking Rodgers to give Merrill probation, even though he expected the life sentence and asked the judge to release Merrill on bond pending appeal.
"We make this appeal at the time of sentencing in light of the pending motions relating to sentencing, the prosecutor?s overweening influence on the court's decisions and the anticipated outcome at sentencing; the likely imposition of a life sentence that the defendant hotly contests as undeserved but nevertheless signaled by the court's past decisions in this case," Flannery wrote in a motion filed Friday.
Ten witnesses were called, five each by the defense and prosecution, to testify at Monday's sentencing. The hearing went well into the afternoon.
Flannery also argued several issues he detailed in filings last week.
He wrote that the trial was a 'sham' and Merrill was railroaded by a government 'that disapproves of opioids', the drug found in the powerful and addictive painkillers oxycodone and hydrocodone.
"The government has led this court and other federal courts into error and thus has compromised the treatment of chronic pain patients across Florida and across the nation," Flannery wrote. "We have a pandemic of untreated pain patients because the government disapproves of opioids."
He wrote that Rodgers was in 'error right from the start' in this case "with the wrongful and prejudicial transfer of this trial from the community where the defendant lived and made his living to Pensacola."
Flannery said the change of venue, which trial defense attorney Jim Appleman protested, was done for the judge's convenience in handling the rest of her docket and placed the trial in a jury pool that would "favor the prosecution." Juries from the Pensacola area have put more state defendants on death row than any other area in Northwest Florida.
Flannery also objected to the prosecution seeking to claim Merrill's retirement benefits as a part of sentencing.
"Not only does the government seek to impose a life sentence for the questionable findings at the trial herein it seeks to seize the modest retirement that is the defendant's entitlement," he wrote, "and in the corrupt bargain to compromise his spouse's right to those needed funds".
While most of us observe the maxim that quality of mercy is not strain, for the Justice Department heartlessness comes more easily."
Jurors deliberated for three days before convicting Merrill of 98 of the 100 charges against him, including 18 counts of wire fraud, five counts of defrauding health-care benefit programs including two counts that charged a death resulted from the violation and 75 counts of dispensing controlled substances.
Prosecutor Stephen Kunz told jurors that Merrill's practice became a destination for drug seekers throughout Florida.
Kunz said Merrill wrote 33,000 prescriptions from January 2001 to May 2004 and 81 percent of those were for controlled substances.
"This defendant is accountable for the drugs he prescribed and for these patients' deaths" Kunz said.
He called Merrill "a drug dealer with an osteopathic license."
Merrill had worked at the Magnolia Clinic in Apalachicola since 1994. The state suspended his license in May 2004 after the Florida Department of Law Enforcement began an investigation of the clinic in early 2003. A federal grand jury indicted him in August.
Jurors found Merrill's actions led to the deaths of Bridgette Persinger, 53, in Panama City on July 10, 2002; Leslie Dyer, 39, in Gulf County on June 14, 2003; Deanna Hayes, 58, in Franklin County on July 29, 2003; Kenneth Noles, 38, in Panama City on Aug. 30, 2003; and Katharine Seay, 47, in Franklin County on Nov. 3, 2003.
The jury heard from 70 witnesses and received 544 exhibits in evidence.
The following is Mr. Flannery's info:
John P. Flannery II
Campbell Miller Zimmerman PC
19 East Market St., Leesburg, VA 20176
Desperate Florida Gubernatorial Candidate
Tom Gallagher Strikes Out Unjustly at
Dr. Merrill to Distract from Crippled Campaign
Florida State's CFO, Tom Gallagher, tilting right in a hotly contested Republican Primary for Governor, trailing his primary opponent, and embarrassed by his own admissions of an extramarital affair, of dog theft and of drug-taking, tried to change the political subject by unfairly attacking Dr. Thomas Merrill, who did no more than treat chronic pain patients when other physicians refused to help.
John P. Flannery, II, a former federal prosecutor from NY, and defense counsel for Dr. Merrill, said that "Gallagher is so busy trying to salvage his phoney baloney political career, and win this primary for Governor, that he is desperate to have the public talk about anything else than what he did wrong himself."
Days ago, Florida's CFO Gallagher released an attack on Dr. Merrill, equating Dr. Merrill's prescription of pain medicine to chronic pain patients with drug dealing, and insisting that the deaths of his patients were a result of his prescriptions, rather than suicides prompted by the patients' excruciating pain, or the patients' personal misconduct.
"Gallagher is a proponent," Flannery said, "of Florida's wrong-headed no-tolerance policy when it comes to treating chronic pain patients with opioids, although these powerful medicines are both legal and necessary, that is, if the patient is going to have anything like an ordinary life."
"The State of Florida," Flannery said, "has a policy of intimidating any doctor who would dare to help chronic pain patients and, as a result, a doctor who prescribes medicine, and the patients he treats is criminalized. CFO Gallagher makes great pretense at having 'family values' and yet he has thrown his political weight against those families who value a loved one suffering from chronic pain."
A "chronic pain patient", according to the medical literature, is a person who has had ongoing, unremitting and excruciating pain, without remission for 6 months. It is pain that has not responded to surgery or to alternative therapies. Physicians must administer opioids if the person is going to have any relief, and function normally.
Florida criminalizes physicians and patients alike. On appeal is the 25 year mandatory sentence of a patient, Richard Paey, featured on 60 minutes, who did nothing more than take pain medication for his chronic pain condition; ironically, Mr. Paey is receiving more pain medicine in prison, than he was charged with possessing for his chronic pain condition; that appeal, argued on February 7, 2006, awaits the appellate court's decision. "Apparently," Flannery said, "when it comes to treating chronic pain, the Florida prison doctor gets it, but the state prosecutor does not."
"What's really tragic," said Flannery, "is that if a chronic pain patient is not treated, the patient may commit suicide - as the pain is unbearable. One patient told me that it was like his legs were in a furnace and on fire. Can you imagine such pain?"
"We have raised serious challenges to this prosecution," Flannery said, "that we will pursue on appeal, among other things, whether this prosecution is a re-run of past misconduct by the government, and of course, we will scrutinize the questionable testimony of the medical examiner."
"As for CFO Gallagher," Flannery said, "Gallagher's drive-by political media attack against Dr. Merrill signals the free fall of his primary campaign."
As for where anyone could learn more about chronic pain, Flannery said, "you should really try the Pain Relief Network's web site as your first and most reliable resource." http://www.painreliefnetwork.org/.
Fla. doctor guilty in pain pill case
Jan. 30, 2006 PENSACOLA, Fla. - A former Air Force doctor was convicted Monday of causing the deaths of five patients by overprescribing highly potent painkillers, including morphine and OxyContin.
Dr. Thomas G. Merrill, 70, was convicted on 98 of 100 counts, including illegally dispensing controlled substances and health care fraud. He faces up to life in prison.
Prosecutor Stephen Kunz called Merrill "a drug dealer with an osteopathic license." He said Merrill's practice became a destination for drug seekers throughout Florida.
Kunz said Merrill wrote 33,000 prescriptions from January 2001 to May 2004 and 81 percent were for controlled substances.
Merrill was taken into custody after verdict. His attorney, Jim Appleman, planned to appeal.
Appleman said Merrill tried to help patients manage their pain, but he was "conned" by those who exaggerated their suffering to obtain drugs and then mixed their prescriptions with cocaine, marijuana and other illegal substances.
Since 1994, Merrill had worked at the Magnolia Clinic in Apalachicola, 80 miles southwest of Tallahassee. The state began investigating the clinic in early 2003. In May 2004, authorities suspended his license.
Sentencing was set for April 21
Apalachicola doctor's federal trial begins
Jan. 10, 2006 - A Florida Panhandle doctor's zeal for prescribing highly addictive pain killers such as OxyContin caused six of his patients to overdose and die, a federal prosecutor told jurors Tuesday.
But Dr. Thomas G. Merrill's lawyers said his mistake was in placing too much trust in patients who exaggerated their pain to obtain prescriptions.
"The evidence will show that this may, may, make a good malpractice case, but not a criminal charge," Appleman told jurors.
Merrill, 70, faces a 100-count indictment including charges of illegally dispensing controlled substances, defrauding health care benefits and distributing controlled substances resulting in death. He faces life in prison if convicted as charged.
Prosecutor Stephen Kunz said Merrill's practice at the Magnolia Clinic in Apalachicola became a destination for drug seekers throughout Florida.
"The defendant was in essence a drug dealer with an osteopathic license," Kunz said. "He prescribed in quantities and doses that would allow patients to abuse or misuse and in some cases caused their deaths. His patients came from near and far. This is about a physician peddling highly addictive substances in exchange for money."
Merrill, a former military doctor stationed for at time at Tyndall Air Force Base, had worked at the Apalachicola clinic since 1994. The state suspended his license in May 2004 after the Florida Department of Law Enforcement began its investigation in early 2003. A federal grand jury indicted him in August.
Merrill wrote 33,000 prescriptions from January 2001 to May 2004 and 81 percent of those were for controlled substances, Kunz said.
"The testimony will show that this is a phenomenal figure," he said.
Kunz said numerous pharmacists and pharmacy employees will testify about their concerns for Kunz's patients and how calls to his office questioning his prescriptions were ignored. Instead, he said, Merrill instructed patients to go to pharmacies where they would be less likely to be questioned.
Merrill also ignored warnings from a hospital emergency room about a patient who had overdosed on prescription and illegal drugs, continuing to prescribe pain killers, which the woman later used when she overdosed and died, Kunz said.
But Appleman said there was no way Merrill could have foreseen the deaths of patients who did not follow proper dosing instructions.
"One woman told everyone in her family she was going to commit suicide and she did, and the government wants to hold Dr. Merrill responsible for her death," Appleman said.
He told jurors Merrill wanted to help the many laborers in what he called one of the poorest areas of Florida.
"There are 10,000 people in Apalachicola, many of them harvest oysters for a living, they use their muscles for a living, they need those muscles in their backs to earn a living," Appleman said.
"Dr. Merrill had a plan to ease their pain for the short term, for the long term, to help them sleep, to ease their depression so that they could earn a living," Appleman said.
Among the 100 federal charges against him, Merrill faces four counts of distributing controlled substances resulting in death and two counts of committing health care fraud, which are linked to patient deaths. He faces a minimum of 20 years in prison for each count of distributing a controlled substance resulting in death.
His trial is expected to last a month.
Panhandle doctor - trial on drug charges
August 11, 2005 Panama City, Fla -
A doctor charged with over-prescribing painkillers allegedly linked to at least six deaths has been released from the Bay County Jail pending a Sept. 12 trial in U.S. District Court.
Dr. Thomas G. Merrill, 69, of Apalachicola was released following a first court appearance Wednesday. He was arrested Tuesday on 76 federal counts of wrongly dispensing controlled substances, 18 of wire fraud and six of defrauding health care benefit programs.
His lawyer, former State Attorney Jim Appleman, said he was working quickly with only a month to get ready for trial but may have to ask for a delay.
Appleman said he was confident the former military doctor would be acquitted, citing his meticulous record-keeping and long medical career that included a tour of duty at nearby Tyndall Air Force Base.
"It's obvious to me that he is not the person the government needs to set an example of," Appleman said, noting he had been practicing for 10 years in Apalachicola until the state suspended his license last year.
"It seems highly unusual that that time period would take place before somebody would be charged with the crime that's indicated in the indictment," Appleman said.
If convicted of distributing controlled substances resulting in death, Merrill would face a minimum of 20 years in prison and a maximum of life on each count.
His license was suspended after state investigators said they had linked the overdose deaths to drugs he had prescribed, including OxyContin, a painkiller blamed for more than 100 deaths nationally.
Apalachicola Physician Indicted On Drug And Fraud Charges Arising Out Of Improper Dispensing Of Controlled Substances
August 9, 2005 -
Gregory R. Miller, United States Attorney for the Northern District of Florida; Charlie Crist, Florida Attorney General; Tom Gallagher, Chief Financial Officer, Florida Department of Financial Services; Mark R. Trouville, Special Agent In Charge, Drug Enforcement Administration - Miami Division; Guy Tunnell, Commissioner of the Florida Department of Law Enforcement; Robert Cromwell, Special Agent In Charge, Federal Bureau of Investigation - Jacksonville Division; Spencer Levine, Director, Florida Attorney General’s Office Medicaid Fraud Unit; and Mike Mock, Franklin County Sheriff, today announced that a Federal Grand Jury has returned an Indictment charging an Apalachicola osteopathic physician with wire fraud, health care fraud, and distribution of controlled substances.
In a one hundred count Indictment, the Federal Grand Jury in Tallahassee charged Dr. Thomas G. Merrill, age 69, of Panama City, Florida, with:
eighteen counts of wire fraud,
six counts of defrauding health care benefit programs, including four counts that charge that death resulted from the violation and
seventy-six counts of dispensing or distributing controlled substances including oxycodone, commonly known as OxyContin, Percocet, and Percodan; morphine, commonly known as Kadian or Avinza; hydrocodone, commonly known as Lorcet, Lortab, and Vicodin; fentanyl, commonly known as Duragesic; alprazolam, commonly known as Xanax, and diazepam, commonly known as valium; including four counts that charge that death resulted from the use of the drugs distributed - oxycodone, morphine, and fentanyl.
The Indictment charges that:
MERRILL, a licensed osteopathic physician practicing at Magnolia Medical Clinic in Apalachicola, prescribed controlled substances to patients without performing a physical examination and without determining a sufficient medical necessity for the prescription of controlled substances.
MERRILL prescribed excessive and inappropriate quantities of controlled substances to patients outside the usual course of professional practice, and caused his patients to fill prescriptions at various pharmacies, thereby causing payment for those prescriptions from Medicaid, Tricare, and other health care benefits programs to pharmacies filling the prescriptions issued by MERRILL.
MERRILL prescribed quantities and combinations of controlled substances to patients but failed to monitor the use and abuse of the prescribed controlled substances by the patients.
MERRILL prescribed controlled substances in quantities and dosages that would cause patients to abuse and misuse the controlled substances.
MERRILL prescribed controlled substances to patients knowing that the patients were addicted to the controlled substances or misusing the controlled substances and wanted additional quantities of controlled substances for the patient’s drug habit.
MERRILL continued to prescribe addictive controlled substances notwithstanding prior overdoses by the patients on the prescribed drugs and the receipt of information that particular patients were abusing their controlled substances, were selling their controlled substances, were addicted, or were “doctor shopping”.
MERRILL prescribed controlled substances to patients that resulted in the deaths of six patients from the use of the prescribed controlled substances.
MERRILL caused Gulf Pines Hospital to submit false and fraudulent claims for medical services and procedures allegedly provided by MERRILL at Magnolia Medical Clinic to various health care benefit programs, including Medicaid, Tricare, and Blue Cross and Blue Shield, for payment and reimbursement, and that MERRILL caused pharmacies that filled prescriptions for controlled substances issued by MERRILL to submit claims to various health care benefit programs for payment and reimbursement.
The Indictment also seeks the forfeiture of property of defendant MERRILL.
The defendant was arrested by federal and state agents this morning on a federal warrant based upon the charges of the Indictment. The defendant will make his initial appearance before a United States Magistrate Judge on the charges this afternoon in Panama City. If convicted on Counts 39, 65, 69 and 78, the counts charging the distribution of oxycodone, morphine, and fentanyl with death resulting from the use of those controlled substances, defendant MERRILL faces a mandatory minimum term of 20 years imprisonment, a maximum of life imprisonment, and a fine of $1,000,000, on each count. If convicted on the five health care fraud counts that charge the violation resulted in deaths of the patients, Counts 20-24, MERRILL faces a maximum term of life imprisonment, and a fine of $250,000 on each count.
This indictment and arrest are the result of a law enforcement initiative assembled last year by Governor Jeb Bush in conjunction with the United States Attorneys in the three federal judicial districts in Florida to target pharmaceutical drug-related crimes across the state. The initiative consists of Diversion Response Teams (DRTs), which are comprised of agents and investigators from the Florida Department of Law Enforcement (FDLE), Medicaid Fraud Control Unit (MFCU) of the Florida Attorney General’s Office, and the U.S. Drug Enforcement Administration (DEA). Additionally, law enforcement agencies involved in health care fraud task forces such as the Federal Bureau of Investigation and other interested state, local and federal agencies participate on an ad hoc basis in the DRTs.
The DRTs are tasked with investigating state and federal violations of practitioners and providers which result in the fraudulent prescribing and dispensing of controlled substances. The DRTs focus on diversion of prescription drugs from lawful channels of distribution; the filing of fraudulent claims with the Florida Medicaid program to pay for the cost of filling unlawfully acquired prescriptions; and the filling and distribution of these prescription drugs by pharmacies.
Since July 2004, four regionally-based DRTs have been located in Miami, Fort Lauderdale, Orlando and Tallahassee. Currently, DRTs are being established in Tampa, Ft. Myers, Jacksonville, and Pensacola.
United States Attorney Miller commended the tireless efforts of investigators of the agencies involved in this complex investigation, and praised the cooperation of citizens and pharmacists who alerted investigators to excessive prescribing of highly addictive controlled substances by MERRILL.
Florida Attorney General Charlie Crist stated: “Medical doctors take an oath to ‘first do no harm.’” Attorney General Crist added, “this indictment charges that Dr. Merrill provided dangerous drugs to patients who have no medical need for the drugs and, in some situations, contributed to the death of patients. Team work by all of the agencies involved has lead to this critical arrest.”
"This indictment is the result of the hard work of many federal, state and local law enforcement officials over a period of a few years," noted FDLE Commissioner Guy Tunnell. "We extend our thanks and appreciation to our law enforcement partners, and we pledge to work with them on the equally difficult cases that will confront us in the future," Tunnell said.
Drug Enforcement Administration Special Agent in Charge Mark Trouville stated: “The indictment unsealed today shows that a doctor who illegally prescribes narcotics from the confines of his office can be prosecuted the same as a drug dealer selling narcotics from any street corner in America.” SAC Trouville added, “ Federal, state, and local agencies working together made a difference today.”
An indictment is merely a formal charge that a defendant has committed a violation of federal criminal law, and every defendant is presumed innocent until, and unless, proven guilty beyond a reasonable doubt.
A copy of the indictment can be found online at: http://myfloridalegal.com/webfiles.nsf/WF/KGRG-6F4NQM/$file/TMerrillindict.pdf