Doctor in drugs-for-sex case
seeks new trial
September 14, 2006 -
A Plum doctor accused of trading powerful painkillers for sex but who was later convicted of providing prescriptions outside normal medical standards has filed a second request for a new trial.
Dr. Bernard Rottschaefer, 63, claims to have new evidence that proves the former patients who testified against him during his 2003 trial were lying. Rottschaefer was convicted of 153 counts of illegally prescribing prescription painkillers, such as OxyContin, to five drug-addicted female patients.
He was sentenced to 6 1/2 years in prison, but has remained free pending the outcome of his first appeal, which is now filed with the U.S. Supreme Court.
Following his criminal trial, the five complaining witnesses each sued Rottschaefer for malpractice. During the trial, all five told jurors that they were drug addicts who were prescribed painkillers for no medical reason. Four of the five women testified that Rottschaefer wrote the prescriptions after they performed oral sex.
Depositions provided by the former patients in their civil suit prove Rottschaefer was treating the women for legitimate medical reasons, the doctor's lawyers claim.
They say two witnesses -- Jennifer Riggle and Amy Vivio -- lied under oath during trial that they were not receiving leniency from the government in other criminal cases in exchange for their testimony against Rottschaefer. His lawyers say a new trial is warranted because prosecutors knowingly allowed the witnesses to give false testimony.
Federal prosecutors focused their case on trying to show that Rottschaefer broke the law by knowingly prescribing controlled substances outside the course of normal medical treatment. They believe the women traded sex for drugs, but said it was not necessary to prove motive in order to get a conviction.
More than a year after the trial, Rottschaefer's lawyers were given 183 letters written by Riggle to her then-boyfriend, who was in jail. In the letters, Riggle repeatedly wrote that she never had sex with Rottschaefer and was lying in order to curry favor with prosecutors in hopes of getting reduced or no jail time for drug charges.
Case Tries Top Court
August 2006 -
The United States Supreme Court will announce Oct. 2 whether it plans to hear the appeal of a Plum doctor, Dr. Bernard Rottschaefer, convicted two years ago of distributing narcotics to his patients in exchange for sex.
The court is Rottschaefer’s last chance to overturn his March 2004 conviction, in which a federal court found him guilty of 153 counts of illegally issuing prescription painkillers to five women. Rottschaefer was sentenced to more than six years in prison, though he has been free pending appeal.
Rottschaefer’s case has garnered national attention because after the trial, evidence surfaced that a key witness against him lied so she could make a deal on her own criminal drug case. All but one of the five patients testifying against Rottschaefer got breaks on their own drug cases.
Both the trial judge and the Third Circuit Court of Appeals have denied Rottschaefer’s request for a new trial. (The appeals court did, however, refer the doctor’s case back for re-sentencing: Rottschaefer was originally sentenced under mandatory federal sentencing guidelines, which the Supreme Court later deemed unconstitutional.)
According to the Supreme Court clerk’s office, the justices are scheduled to discuss whether to hear Rottschaefer’s appeal on Sept. 25.
Rottschaefer’s attorney, Eli Stutsman, recently filed his request to have the case heard; the U.S. Attorney’s office waived its right to file a brief in response, according to a court spokesperson. U.S. Attorney Mary Beth Buchanan was unavailable to explain her decision by press time.
Stutsman’s brief repeats arguments he’s been making in appeals since Rottschaefer’s conviction. Because the women allegedly fabricated injuries to get pain medication, Stutsman contends, Rottschaefer is guilty, at worst, of malpractice — and that isn’t a criminal offense. In his brief, Stutsman writes:
“Although the government ostensibly brought a sex for drugs criminal prosecution against Dr. Rottschaefer, the government in fact prosecuted a malpractice-type theory of criminal liability” — something that “Congress did not criminalize.”
The alleged perjury of Jennifer Riggle, one of Rottschaefer’s former patients, warrants a new trial by itself, Stutsman claims. After Rottschaefer’s conviction, Riggle’s estranged boyfriend gave defense attorneys hundreds of pages of letters Riggle wrote before the trial. In those letters, Riggle outlines plans to lie about the doctor in exchange for a lighter sentence for herself.
In Rottschaefer’s case and several others nationwide, doctors have received lengthy prison sentences for prescribing painkillers to patients claiming to be in severe chronic pain. Convictions in such cases, Stutsman writes, deserve review by the Supreme Court.
“Dr. Rottschaefer and other physicians face prosecutions … that may rest on substandard medical practices rather than drug dealing,” Stutsman argues in his brief. “This case presents the court with an opportunity to announce that a criminal conviction cannot be based on substandard medical practices.”
A Tale of Sex, Drugs and Deception
It’s safe to say that medicine is in Bernard Rottschaefer’s blood. His great-grandfather was a country doctor in rural Wrightsville, Pa. An uncle and several cousins were also in practice, while an aunt spent her life as a medical missionary in India.
Rottschaefer too was always fascinated by medicine. After graduating in 1971 from the University of Pittsburgh School of Medicine, he spent nearly 35 years working as a doctor, 30 of which he spent building a practice in Oakmont. All of this despite being “deathly afraid” of needles as a child, he says.
Perhaps it was the pills he should have worried about.
One day in 2000, Rottschaefer’s practice — his world — was rocked. Federal agents raided his office, seized his files and, later, accused him of trading prescriptions for powerful narcotics for sex.
Rottschaefer was buried under 208 counts of illegally distributing prescription drugs. The charges were based on the testimony of five women, four of whom said Rottschaefer gave them unnecessary prescriptions for painkillers in exchange for sex in his office. In March 2004, Rottschaefer was convicted on 153 counts, and sentenced to more than six years in federal prison.
And then came a turn of events straight out of a made-for-TV movie. Mountains of evidence suddenly appeared that strongly suggest a key witness in the trial, Jennifer Riggle, lied on the stand … and confessed to it repeatedly in 528 pages’ worth of letters she wrote to an ex-boyfriend. At the very least, Rottschaefer expected a new trial.
Imagine his relief.
And then imagine his horror when it didn’t seem to make any difference. No one seemed to give a damn — not the prosecutors, not the appeals court, no one. No one gave a damn that a key witness admitted lying on the stand to get a lighter sentence for herself.
Rottschaefer is 63 today. For a man that age, six-and-a-half years in prison could be a life sentence. For the past two years, Rottschaefer has been living at his Plum Borough home, out on bail as he appeals his conviction. But now all that stands between him and a prison cell is the U.S. Supreme Court … and the hope that someone will care that something with his case just isn’t right.
Because in this drama of drug use, it’s not entirely clear who was using whom.
“I loved practicing medicine,” Rottschaefer wrote in an e-mail interview — the only method permitted by his attorney. (Rottschaefer would not answer specific questions about the case because of the ongoing appeal.) “I was as fond of it in the early days as I was up until the last day of my trial when I closed my practice of 30 years."
“I miss practicing very much.”
The federal Drug Enforcement Agency began investigating Rottschaefer in 2000 when his then-office manager Diane Wisniewski called the DEA. As she would later testify in court, Wisniewski became suspicious of Rottschaefer’s interaction with a few of his female patients: He would be in the exam room — behind a locked door — with certain patients for as long as 30 minutes, instead of what she described as the standard quarter-hour. While Wisniewski never caught the doctor in a sex act with a patient, she testified that she heard ruffling of the paper on the exam table, and a belt buckle being unclasped.
Rottschaefer diagnosed the women who later testified against him with bad backs. He provided them with prescriptions for drugs like Oxycontin, Xanax, and Duragesic. Xanax is a sedative that is prescribed to deal with depression and anxiety. Oxycontin and Duragesic (also known as fentanyl) are opiod painkillers that can be addictive; Oxycontin gained notoriety after conservative radio talk-show host Rush Limbaugh confessed his own addiction to the medication.
U.S. Attorney Mary Beth Buchanan, whose office prosecuted Rottschaefer’s case, says Rottschaefer flagrantly broke the law — and that his records confirm it.
A review of the charts, Buchanan says, showed no legitimate medical reason for the high number of prescriptions. During Rottschaefer’s 2004 trial, Douglas Clough, whom the prosecution called on as a standard-of-care expert, testified that nothing in the women’s charts indicated a need for the powerful narcotics. In his testimony about Rottschaefer’s treatment of one patient, for example, Clough said records showed “no legitimate reason to continue her on the Oxycontin and later the Duragesic without attempting to determine whether or not the pain medication … was needed for her pain. Especially in view of the fact that she exhibited drug-seeking behavior and was later found to be a known alcohol abuser with an addictive personality.”
DEA agent Louis Colosimo, meanwhile, testified that files showed the women often claimed they lost or misplaced pills only to receive new prescriptions. Colosimo described that as “drug-seeking behavior,” court records show.
Rottschaefer’s Oregon-based attorney, Eli Stutsman, specializes in defending doctors in criminal cases. He and his client maintain that there was no sex involved, that Rottschaefer was treating the pain of his patients, and that he’s being punished because he didn’t know they were addicts trying to get narcotics. Even if Rottschaefer should have conducted different tests or prescribed different medications, Stutsman says, that’s a question of medical malpractice — a matter that should be decided in a civil suit rather than with a federal drug charge.
“The bottom line is, Dr. Rottschaefer was judged under a civil standard and not a [criminal] standard,” Stutsman says. “That standard combined with a case where the doctor is accused of trading sex for drugs, there’s not going to be a lot of sympathy for him.”
There certainly isn’t much sympathy on Buchanan’s part.
“Instead of this doctor performing appropriate medical diagnostic testing, he engaged in sexual activity and then prescribed narcotics,” Buchanan says. “This has nothing to do with malpractice or medical standards. To prescribe narcotics without a legitimate medical purpose is against the law. Once a doctor does that, they’re no different than a drug dealer, no different [than] someone selling drugs on the street.
“This isn’t a case of a doctor who exercised poor judgment or made a wrong decision,” she adds. “This is a case of a doctor who prescribed for no medical reason dangerous narcotics which caused his patients to become addicted. This wasn’t a close call at all.”
Arguably, though, it might have a closer call — if the jury had seen letters in which a key witness confessed:
* “I think they want to subpened (sic) me to a grand jury about the doctor I was seeing. They’re saying he was bribing patients with sex for pills, but that never happened to me. DEA said they will cut me a deal for good testimony. Everyone else is testifying against him. Please don’t let nobody see this.”
* “They’ll give me a copy of my last statement I made, which is good. … As long as I get a copy of my old statement, I can look at it and go over it. … I just feel so guilty, you know.”
* “You know that big secret I told you about the doctor? Well my dumb ass told someone about it way back and I’m scared to death that she will reveal it and I’d never go home. … That was dumber than selling those drugs and I kick myself every fucking day about it. If anyone finds out my secret I will fucking murder someone and if I’m locked up I will put a hit out on them. I fucking swear, babe. I know it would never be you to reveal anything, so don’t think I’m referring to you. Babe, maybe you should burn this letter to be on the safe side, please do that for me.”
Former Rottschaefer patient and accuser Jennifer Riggle wrote the letters between August 2001 and February 2004 to her then-boyfriend, Barron Shelton. At the time, Shelton was incarcerated on a four-and-a-half to nine-and-a-half year prison sentence for aggravated assault with a deadly weapon. For some of that period, Riggle herself was incarcerated in the Westmoreland County Jail for selling Oxycontin.
Repeatedly in the correspondence, Riggle admits to lying, professes her guilt about it, and asks Shelton to destroy the letters. But she also maintains that Rottschaefer deserved prosecution because, she believed, he was handing out the drugs improperly.
“The doctor is still in the wrong for not wanting to see X-rays of my back before prescribing those pills,” Riggle wrote on Dec. 2, 2002. “All he did was have me bend over, feel my back and decide I was in a lot of pain.” In an earlier letter, she charged, “He has ruined many lives.”
Despite Riggle’s repeated entreaties, Shelton didn’t destroy her letters. And in 2004, Riggle began a relationship with another man. She dumped Shelton seven months before he was due to be released from prison … and when Shelton was paroled in September 2004, he turned the letters over to Rottschaefer’s attorneys.
Attempts to reach Riggle through calls to her civil attorney, Catherine Conley, were not returned. (Riggle and the other witnesses are suing Rottschaefer, and the various drug companies, for allegedly making them addicts.)
Repeated attempts to reach Shelton also failed. Calls to a number related to him in New Kensington were answered by an elderly woman identifying herself as Shelton’s mother. She said she hadn’t seen her son in some time and he usually stopped by frequently. In a final call shortly before publication, she informed City Paper that she learned her son’s parole had been violated; he had been returned to prison, where he could not be reached for comment by press time.
But Rottschaefer is using the letters in a bid to stay out of prison himself. In June, he is due to file a request to have his case heard before the U.S. Supreme Court. It will be the last chance he has to avoid prison: Two weeks ago, the Third Circuit Court of Appeals in Philadelphia denied Rottschaefer’s appeal.
“The prosecution acted well within the law when it defined Rottschaefer’s crimes in terms of prescribing narcotics for ‘no legitimate medical reason,’” the justices wrote. “The crime for which Rottschaefer was convicted was not, as he claims, trading drugs for sex. Rather, he was convicted of unlawfully distributing controlled substances outside the course of professional practice.
“If anything, Riggle’s letters reinforce other evidence that Rottschaefer’s prescription practices fell outside of the bounds of ordinary professional practice. Furthermore, … we note that [the letters] would not ‘probably produce an acquittal.’”
Key to the ruling was the fact that the jury at his criminal trial had some clue Riggle might have been lying. During the original trial, the defense produced a jailhouse informant who testified that Riggle admitted to lying about having sex with Rottschaefer. The judges held that the letters, then, were merely “cumulative” — additional support for a contention already made at trial.
But hearing such an argument from a jailhouse witness, Stutsman contends, is a lot different from hearing an admission in a person’s own words. “We have the most extensive evidence of perjury that any lawyer will ever see,” he says.
And his questions about the case go beyond Riggle.
“Four of the five women had priors and were facing their own prosecutions, convictions and incarceration. They all reached plea agreements and they also changed their testimony, at first denying sex for drugs and then changing their testimony to help the government and get the agreements they wanted.” (One witness in the case, Corey Schlemmer, never testified that sex ever took place between her and the doctor.)
And Stutsman notes Riggle knew two of the other women who testified against Rottschaefer: Pam Miller and Sue Leskovic. Riggle was introduced to the doctor by Miller, and testified that she shared her pills with Miller after Miller coached her on a false story to justify the pain medication.
If such lies were intended to fool Rottschaefer, as his attorney claims, he may have been the only one they deceived. According to a 2003 Post-Gazette article, local pharmacists told investigators that they refused to fill Rottschaefer’s prescriptions because they suspected the women were addicts. During the trial, Wisniewski, Rottschaefer’s office assistant, testified that office staff often referred to some patients as Rottschaefer’s “little playmates and druggies.”
But was Rottschaefer preying on these druggies, or were they preying on him? Or both?
According to news coverage of Rottschaefer’s original trial, attorney Irving Green got Riggle to acknowledge that she initially pledged to testify in Rottschaefer’s defense. (She did it, she told the court, to protect her drug supply.) For her part, Miller had previously told a grand jury that, while she and Rottschaefer had sex, drugs weren’t involved. She also acknowledged hatching a blackmail plot to ensure a steady supply of prescriptions, though she testified that she abandoned the scheme.
And in the wake of Riggle’s letters, some have asked whether the feds themselves were being used. In a January 2006 piece about the Riggle letters, New York Times columnist John Tierney argued that law-enforcement officials must have been duped, just as Rottschaefer claimed to have been. (Unless, Tierney speculated, the feds wanted Riggle to commit perjury.) The feds, Tierney wrote, “are supposed to be experts at detecting liars. … Yet they apparently weren’t careful enough or shrewd enough to see through Riggle’s story. If they don’t deserve prison time for that mistake, neither does her doctor.”
In any case, making deals for testimony is the government’s bread and butter, says Steven B. Duke, a law professor at Yale University and an expert on federal criminal law.
“Much of the testimony against defendants in federal criminal prosecutions is purchased by the government — or if you prefer, extorted — by exchanging prison terms, money and other consideration with criminals in return for their testimony,” Duke says. “It is not limited to drug cases. It is a major source of convictions of the innocent.”
When told about Rottschaefer’s conviction and Riggle’s letters, Duke says the government’s unwillingness to reconsider its position isn’t surprising.
“That is the common prosecutorial position: to protect a verdict or other decision earlier made and to resist reconsideration,” Duke says. “In this case, if the witness says she lied, that her testimony against the doctor was knowingly false, the government should reconsider or allow the court to hold a hearing on the issue.”
Buchanan contends that the appellate court’s ruling has provided all the hearing that’s needed; since the Third Appeals Court soundly dismissed Rottschaefer’s argument, she says, the case isn’t worth the Supreme Court’s time.
Not surprisingly, Stutsman sees things differently:
“I went over this case with a colleague who is a former prosecutor and she told me, ‘I can’t tell you if he did it or he didn’t do it, based on the evidence.’ She’s right, and that’s why this case deserves to be done over.”
Rottschaefer’s case has attracted attention for another reason: Some see the prosecution as evidence that the “War on Drugs” has gone awry. As Tierney wrote in his January column, “[I]t shouldn’t be the job of federal law enforcement officials to decide what constitutes proper medical practice.”
“Clearly, some doctors are drug dealers — prescribing drugs to make money rather than to treat illnesses,” says Duke. “But many others are hounded and abused by narcs, and many, many more are deterred from legitimately treating their patients for pain by the fear of criminal prosecution.
“Drug agents are interfering with the practice of medicine in their zeal to discourage or punish doctors who are abusing their licenses to prescribe.”
Siobhan Reynolds, the founder of the Internet-based Pain Relief Network (painreliefnetwork.org), contends the government is cruelly targeting doctors and people in pain. That’s why she has posted a full-page tribute to Rottschaefer, whom she calls “an angel,” on her Web site.
“They are putting good medicine and good doctors on trial,” says Reynolds, who is a family member of a chronic pain sufferer. “It’s a pretty sad state that the government is setting medical standards instead of the doctors.
“And it takes a toll on the patients, many of whom have either learned to live with the pain, or end their own lives because relief is not an option. … It’s a shame that trying to find someone to relieve your severe pain or the severe pain of someone you love has become an illicit transaction in this country.”
Dr. Jane Orient, executive director of the Association of American Physicians and Surgeons, says the prosecution of these doctors has created a class of desperate individuals living in constant pain. Because doctors are afraid of prosecution, Orient says, they are increasingly reluctant to prescribe the powerful narcotics to patients who need them. They become even more cautious, she adds, with patients whose previous doctors have already been prosecuted.
“Doctors are very suspicious of these patients that try and come over from a doctor who has been convicted,” Orient says. “They don’t want to inherit the legal problems that they know could come along with them. So what we have are patients in severe chronic pain and doctors that are afraid to treat them.”
Orient says there is no set standard in diagnosing and treating pain, because it is a subjective ailment. Without an objective test for evaluating pain, doctors must typically use their subjective judgment, combined with trust in the patient, to determine the course of treatment. Sometimes patients lie, Orient says, and it’s unrealistic for the government to prosecute doctors for not realizing it.
“You’re supposed to have a lie detector in the exam room, I guess,” she says.
It was the threat of such government intrusion that drove New York City-based Dr. Alexander DeLuca out of private practice. An addiction specialist and believer in pain treatment, DeLuca is now an activist for doctors whom he says are being targeted and hounded by prosecutors and DEA agents.
DeLuca says the cases are nearly impossible to win because, in the courtroom, prosecutors can dictate the standard of appropriate care. With more charges being filed, he says, 2006 “could be a very bad year for us.”
It’s hard to track the number of cases precisely. DEA spokesman Steve Robertson says the DEA does not discuss ongoing investigations and so current numbers are not available. He did say, however, that 62 doctors were arrested in 2005, 49 in 2004 and 34 in 2003. That’s out of one million practitioners, Robertson notes. Those numbers include only DEA arrests and do not include state arrests and prosecutions
On its Web site, Orient’s group lists about 30 doctors who have been convicted, indicted or targeted by authorities in drug crimes. Among them:
Dr. William Hurwitz, 59, of Alexandria, Va., sentenced to 25 years in federal prison on multiple charges of conspiracy to traffic in controlled substances and drug trafficking resulting in death.
- Harry Meyer Katz, 79, of St. Louis was given 16 months in federal prison after being convicted on 176 felony counts of illegal distribution of controlled substances.
- William Nucklos was sentenced to 20 years in prison earlier this year after convictions for drug trafficking. Nucklos’ cause gained the support of the Rev. Jesse Jackson, who asked the court to grant the doctor bail pending the outcome of his appeal.
Freddie Williams, who received life in prison after prescriptions of Oxycontin resulted in the death of two patients.
- Deborah Bordeaux, who was sentenced to eight years in prison after working in a Myrtle Beach pain clinic for just 57 days. Several other doctors in the clinic were also convicted and sentenced to prison. One committed suicide after pleading guilty.
- In Erie, another doctor, Paul Heberle, faces prison time for charges surrounding his treatment of chronic-pain cases. His trial is ongoing and was expected to wrap up this week.
But such prosecutions aren’t always necessary to have a chilling effect, DeLuca says. The government’s M.O., he says, it to have agents raid doctors’ offices and send them target letters. Some doctors stop prescribing the drugs at that point, and the investigations sometimes go away. Others decide, as DeLuca says he did, that they can’t operate under the fear and still treat patients correctly.
“I get e-mails every week, from people begging for my help in finding a doctor,” DeLuca explains. “I got out of my practice because I couldn’t sit across from someone in extreme pain, have the ability to ease their pain [and] do nothing because I was afraid of the government.
“I can’t practice medicine like that and if I’d have stayed in it, I would have been a sitting duck, just like Dr. Rottschaefer.”
Today, Dr. Rottschaefer isn’t practicing medicine either. At age 63, he now works in construction as a heavy-equipment operator. His family life has suffered along with his career prospects.
“My youngest summed it up the other day very concisely when he said he lost his parents and gained a case,” he says. “My life is changed and I find it very difficult to keep anger out of my psyche. Because of this conviction, I lost my legacy.”
Buchanan says she’s merely holding a doctor who prescribes narcotics illegally to the same standard as a heroin dealer — and that Rottschaefer’s case isn’t worth the high court’s time.
Still, arguably, it’s at least as worthy of a court’s attention as the testimony of someone who wrote:
“I had just prayed to and asked God to give me the confidence to be able to lie about the Dr. just this once. I am not a good liar and I am scared. The only reason I’m doing this is because he’s pretty much already had and he doesn’t deserve to be practicing. Do you think it could come back to haunt me and that was a stupid question to ask God?
“Is there any exception to telling a lie?”
Perhaps. So far, at least, Riggle has not been charged with perjury.
Oakmont doctor loses appeal in drug conviction
April 29, 2006 - In a case that has garnered national attention, an Oakmont doctor convicted in federal court here of illegally doling out painkillers to addicts has lost an appeal.
The 3rd U.S. Circuit Court of Appeals, based in Philadelphia, ruled Thursday that Dr. Bernard Rottschaefer will not get a new trial.
His Oregon attorney, Eli D. Stutsman, didn't return a message yesterday seeking comment on whether he will appeal to the U.S. Supreme Court.
U.S. Attorney Mary Beth Buchanan said her office was pleased with the decision.
After a high-profile trial in U.S. District Court, Dr. Rottschaefer, 63, of Plum, was found guilty of 153 counts of illegally prescribing painkillers to female addicts, often in exchange for sex. He was acquitted on 55 other counts.
U.S. District Judge Gary Lancaster sentenced him in 2004 to more than six years in prison, although the doctor has remained free pending appeal.
At trial, the government presented a series of female addicts who said they performed oral sex on Dr. Rottschaefer in his office in exchange for OxyContin.
After the conviction, however, the defense produced letters that one of the women, Jennifer Riggle, wrote to her former boyfriend in which she said she planned to lie about the sex in hopes of getting a reduced sentence in her own drug case.
Mr. Stutsman argued that those letters constituted grounds for a new trial because he said they prove Ms. Riggle committed perjury.
The lawyer also argued for a new trial on the grounds of "prosecutorial misconduct and ineffective counsel," saying his client was improperly tried using a civil medical malpractice standard rather than the higher standard of proof required in a criminal case.
The government countered that the judge instructed the jury on the necessary legal standards for a criminal conviction. Prosecutors also said that while Dr. Rottschaefer was accused of trading prescriptions for sex, they didn't have to prove the sex, only that the doctor prescribed the drugs for "no legitimate medical reason."
Ms. Buchanan said the government's evidence, which included patient charts and testimony from a medical expert, was overwhelming even without the testimony about sex.
The 3rd Circuit agreed and indicated the jurors understood the nature of the case because they acquitted Dr. Rottschaefer on some counts involving alleged sexual favors but convicted him on others in which there was no evidence of sexual contact.
"The crime for which Rottschaefer was convicted was not, as he claims, trading drugs for sex," wrote Judge Marjorie Rendell. "Rather, he was convicted of unlawfully distributing controlled substances outside the course of professional practice."
The judges also agreed with U.S. District Judge Gary Lancaster, who in denying Dr. Rottschaefer's motion for a new trial last year said that Ms. Riggle's letters were not exculpatory.
Judge Lancaster made that ruling because the jury heard a defense witness, Deborah Peterson, say that Ms. Riggle told her she lied and also because the letters were not written under oath.
The circuit judges also said that Ms. Riggle's letters, while undermining her testimony about the sex, actually reinforced the government's position that Dr. Rottschaefer was prescribing drugs for no medical reason.
"See, the doctor is still in the wrong for not wanting to see X-rays of my back before prescribing those pills," she wrote in one letter. "All he did was have me bend over to feel my spine and just by that he decided I was in a lot of pain."
The circuit judges said that while Judge Lancaster "could have engaged in a more thorough analysis" of Dr. Rottschaefer's claims, the judge did not abuse his discretion in denying the motion for a new trial.
Oakmont doctor appealing drugs-for-sex conviction
March 03, 2006 -
An Oakmont doctor who was found guilty of 153 counts of illegally distributing OxyContin and other drugs in exchange for sex argues that his conviction should be overturned because the government based its case on the civil standard of medical malpractice and not on a criminal standard.
That argument will be presented on behalf of Dr. Bernard Rottschaefer today before the 3rd U.S. Circuit Court of Appeals in Philadelphia.
Eli D. Stutsman, an Oregon attorney who specializes in appellate work, will argue that the U.S. attorney's office prosecuted Dr. Rottschaefer using the wrong legal standard, and therefore his conviction should be reversed.
"Malpractice is not a crime," Mr. Stutsman said. "The government has substituted the civil standard for the criminal standard."
To prove that a doctor unlawfully distributed a controlled substance, the government must show that the drugs were prescribed "outside the course of professional practice," Mr. Stutsman said.
Instead, the prosecution proved that Dr. Rottschaefer knowingly dispensed a controlled substance and that when he did so, "he did not act in good faith ... for legitimate medical purpose," he said.
The prosecution's case was based on the testimony of four women who said they received prescriptions from Dr. Rottschaefer for OxyContin, Xanax and Duragesic. In exchange for the drugs, they performed sex acts.
The prosecution has said the sexual favors Dr. Rottschaefer received served as his motive in the case, but they were not an actual element of the crime.
"That was not a requirement of the government's proof," said U.S. Attorney Mary Beth Buchanan. "It was, however, further evidence of the violation."
Mr. Stutsman plans to use a Jan. 17 Supreme Court decision regarding Oregon's Death With Dignity Act to back his argument. In that case, Gonzales v. Oregon, a 6-3 majority found that the U.S. attorney general does not decide what are legally accepted medical practices.
That ruling allowed physicians in Oregon to continue to prescribe medications to terminally ill patients who want to end their lives.
Though the two cases don't seem factually similar, the issue of federal prosecutors determining legitimate medical practice links them, Mr. Stutsman said.
Dr. Rottschaefer was sentenced in September 2004 to 61/2 years in prison, but he has remained free pending appeal.
Shortly after his conviction, defense lawyers received hundreds of pages of letters written by Jennifer Riggle, one of the women who testified against Dr. Rottschaefer.
While she was incarcerated on her own charges, Ms. Riggle wrote to her then-boyfriend claiming that she never had sex with Dr. Rottschaefer and that she was lying to get a reduced sentence.
Claiming those letters were newly discovered evidence, Dr. Rottschaefer asked the district court in December 2004 for a new trial. U.S. District Judge Gary L. Lancaster denied the request, saying the evidence was merely cumulative, because another witness during the trial testified that Ms. Riggle lied.
The prosecution discounts Ms. Riggle's letters, saying that even if she did lie on the stand -- and they don't believe she did -- they still had enough to convict Dr. Rottschaefer.
Dr. Rottschaefer is no longer licensed to practice medicine in Pennsylvania.
Doctor's Drug Verdict Fought
An appeal by an Allegheny County doctor convicted of trading prescription drugs for sex could be bolstered by the federal government's loss in a legal battle over assisted suicide.
The U.S. Department of Justice in 2001 challenged an Oregon law legalizing physician-assisted suicide, saying the practice was without "legitimate medical purpose." But the U.S. Supreme Court disagreed this year, saying the Justice Department and the U.S. Drug Enforcement Administration have no authority to determine "generally accepted standards of medical practice."
Lawyer Eli D. Stutsman won the case and hopes for a repeat performance Friday when he appears before a federal appeals court to represent Dr. Bernard Rottschaefer, who was convicted in March 2004 of illegally prescribing painkillers - namely OxyContin - to five drug-addicted female patients he treated at his Oakmont office.
"The same rule and statute that the attorney general was interpreting wrong in Oregon is the same rule and standard that is being interpreted wrong in Pennsylvania," said Stutsman, who filed documents last week informing the 3rd U.S. Circuit Court of Appeals in Philadelphia that he plans to use the Oregon ruling in arguing Rottschaefer's case.
Rottschaefer, 63, of Plum, was sentenced to 6 1/2 years in prison, but remains free on appeal.
His attorneys claim:
• Prosecutors mixed laws, presenting a case of civil malpractice instead of a sex-for-drugs criminal case;
• A key government witness lied on the stand;
• The recent Supreme Court decision addresses the tactics used by prosecutors in this case.
Doctors violate federal law when they intentionally prescribe a controlled substance outside accepted medical practice -- in other words, when they act as drug dealers, not doctors.
Rottschaefer was accused of trading prescriptions for sex, but it wasn't necessary to prove that, said U.S. Attorney Mary Beth Buchanan.
"Even without sex, the evidence was overwhelming," she said.
Five former patients -- whether they claimed to have performed sex acts or not -- testified the doctor wrote prescriptions in cases where narcotic painkillers weren't necessary and without performing adequate examinations, tests or follow-ups, according to testimony presented by prosecutors at trial.
Patient charts provided ample evidence that Rottschaefer prescribed drugs for no legitimate medical reason, said Assistant U.S. Attorney Mary Houghton, who prosecuted the case. A medical expert testified he saw no reason to prescribe OxyContin to the five patients who testified against Rottschaefer.
That the expert reviewed medical charts shows Rottschaefer acted as a doctor, not a drug dealer, Stutsman said. Whether the medical standard of care had been met or not is a civil matter, not a criminal one, he said.
Rottschaefer's case was about prescribing drugs for sex, not practicing the best medicine, Stutsman said.
"The sex-for-drugs allegations is like asking, 'When did you stop beating your wife?' How do you answer that? It almost works as if it's a smear tactic, then they put on a case of good and bad medicine," he said. "If the government says this is a case of sex for drugs, then they need to put that on."
Buchanan said Rottschaefer's appeal is without merit.
"The jury found there was no legitimate reason to prescribe the drugs, and that's what they convicted him of," she said.
Some believe the DEA's crackdown on doctors is politically motivated.
"It's self-serving for them. Bureaucrats have to do things that defend their existence," said U.S. Rep. Ron Paul, R-Texas, a physician and Green Tree native. "The unsuccessful war on drugs led to the war on doctors so they could show some sort of success."
Doctors and law enforcement worked together when the modern war on drugs began in the early 1970s, Paul said. Now they appear to be pitted against each other, he said.
"It looks like the doctors are more vulnerable under these laws and prosecution than some of the street drug dealers and gangs," Paul said.
Others speculate the DEA focused on doctors in recent years that federal reviews gave the agency a zero rating for results and criticized it for not doing enough to combat prescription drug abuse.
"They've spent billions of dollars on the war on drugs, and they haven't won the war," said David Brushwood, a lawyer and pharmacy professor at the University of Florida. "In fact, they haven't even won many battles. They need success, and one way to get success is to redefine what is success. Instead of counting arrests like they used to do, now they're counting doctors prosecuted."
DEA spokesman Rusty Payne said the agency does not have a campaign against doctors.
"The idea that we're doing anything different just isn't the case," he said. "We're doing what we've always done."
Prescription drug abuse is an exploding problem, Payne said, and the DEA is responsible for investigating claims against doctors.
But "we don't review every prescription written for pain medications, and we don't walk into every doctor's office," he said.
Of the 600,000 physicians registered to prescribe controlled substances, a minuscule number are investigated, and even fewer charged and convicted, Payne said. Last year, 39 doctors were convicted of violating the Controlled Substances Act, up from 24 in 2004.
Five women with multiple drug addictions testified for the government during Rottschaefer's trial.
Four said they performed oral sex in exchange OxyContin prescriptions. All four also testified as part of plea bargains, Stutsman said.
Jennifer Riggle -- a witness who'd been arrested 11 times -- wrote to her boyfriend in prison that she was lying about the sex-for-drugs scheme in hopes of getting state charges reduced or dropped for selling OxyContin to undercover agents. After the trial, Rottschaefer's attorneys received 183 letters in which Riggle discusses her plan to lie more than 30 times.
"I had just prayed and asked God to give me the confidence to be able to lie about (Rottschaefer) just this once," Riggle wrote in October 2002. "I am not a good liar. I am scared. The only reason I'm doing this is 'cause he's pretty much already had and he doesn't deserve to be practicing. He has ruined many lives and some people have even O.D.'d on the Oxy's. Do you think it could come back to haunt me and that was a stupid question to ask God? Is there an exception at all to telling a lie?"
U.S. District Judge Gary Lancaster declined to grant a new trial based on the letters, which Stutsman called an unprecedented amount of evidence.
"It's a once-in-a-lifetime thing to see this kind of handwritten perjury," Stutsman said.
Buchanan doesn't believe the letters prove perjury.
"When is the witness more credible -- under oath in a federal trial, or trying to convince a boyfriend she wasn't having sex outside their relationship?" Buchanan said.
Even if Riggle did lie about the sex, "there was more-than-ample evidence for the jury to find that the government proved its case beyond a reasonable doubt," Buchanan said. "The government proved at trial that Dr. Rottschaefer on 153 occasions prescribed OxyContin and other drugs for no legitimate medical reason."
Stutsman argues that falls short of what needed to be proven, and he wants the 3rd Circuit to fix it.
"Dr. Rottschaefer is entitled to a fair and clean prosecution," he said.
In addition to demonstrating how the persecution of pain-treating physicians
is the source of the public health disaster that is undertreated chronic
pain, Mr. Tierney's piece reveals the open sewer of corruption that runs
through the heart of the criminal "justice" system. In my own experience it
is unusual to find a case against a physician where this sort of misconduct
This just won't do. The time is rapidly approaching when we will have to
reconsider, as a society, the manner in which we regulate both medications
and the practice of medicine.
Sex, Lies and OxyContin
By JOHN TIERNEY
January 24, 2006 PITTSBURGH - Jennifer Riggle, a drug addict, was a star witness in the trial
of her doctor, Dr. Bernard Rottschaefer. She testified that he had fondled her
breasts in the examination room and then given her prescriptions for
OxyContin and Xanax in return for sex.
In testimony in federal court two years ago, Riggle quoted the doctor as
saying, "You satisfy my needs and I'll satisfy yours."
Rottschaefer denied the allegations but was convicted and sentenced to six
and a half years in prison. The "drugs for sex" trial in Pittsburgh
appeared to be a triumph for the Drug Enforcement Administration, which had
helped investigate the doctor. But now it looks more like a frightening
example of what's wrong with the D.E.A.'s war against doctors.
The drugs-for-sex case was based on the testimony of Riggle and three other
women. All were in trouble with the law and had something to gain by
cooperating with the D.E.A. agents who interviewed them. During the trial,
Rottschaefer's attorneys pointed out problems with the women's stories --
one was unable to say whether the doctor was circumcised -- but it wasn't
until later that the most damning evidence appeared.
Riggle's former boyfriend, angry at her for dumping him, produced a batch of
letters he had received in prison from her; in them, she said she had never
had sex with the doctor. You might suspect that she just didn't want to
admit infidelity to her boyfriend, but in one letter she volunteered the
information that she'd had sex with another man for $50.
She explained to her boyfriend that she was committing perjury because she
faced drug charges that could have sent her to prison for six years.
"They're saying he was bribing patients with sex for pills," she wrote,
referring to the doctor, "but it never happened to me. D.E.A. said they
will cut my time for good testimony. I don't want to be a snitch but what
should I do?" After she cooperated, she received probation instead of
prison time for the drug charges.
In the letters to her boyfriend, she fretted about being caught for perjury
and urged him to destroy the incriminating letters. She worried she might
have to take a polygraph test. She berated herself for having told another
inmate about her perjury:
"See babe, the reason why I've been so down is cause you know that big
secret I told you about the doctor? Well, [I] told someone about it way back
and I am scared to death that she will reveal it and I'd never go home."
Later that inmate would indeed come forward and say that Riggle had
confessed to making up the story about sex with the doctor.
Rottschaefer's lawyers are now appealing his conviction, arguing that it
should be overturned because of the new evidence of perjury, but the federal
prosecutors show no signs of remorse. (Neither they nor Riggle's attorney
responded to my inquiries about the case.) So far Riggle has not been
charged with perjury.
Instead, the prosecutors are still focused on punishing Rottschaefer.
They've argued that even if he didn't trade drugs for sex, he still deserves
prison because he should have examined patients like Riggle more carefully
and realized that she was an addict who was lying to him in order to abuse
That's the same legal argument that has been used to convict other doctors.
But it shouldn't be the job of federal law enforcement officials to decide
what constitutes proper medical practice. Inept doctors can be sued for
malpractice or lose their state medical licenses, but they shouldn't go to
It's especially unfair for the D.E.A. to go after doctors who treat pain,
because they're dealing with symptoms that are notoriously difficult to
measure. Doctors can do tests, but they also have to make judgments based on
what patients tell them -- and the Rottschaefer case ought to show the
federal drug warriors how tricky those judgments can be.
If you believe Riggle's letters, as I do, there are two possible conclusions
about the behavior of the D.E.A. agents and prosecutors. At worst, some of
them illegally encouraged a witness to commit perjury. At best, they were
The agents and prosecutors are supposed to be experts at detecting liars,
and they had far better investigative tools available to them than
Rottschaefer did. Yet they apparently weren't careful enough or shrewd
enough to see through Riggle's story. If they don't deserve prison time for
that mistake, neither does her doctor.
The Outrageous Case of Dr. Bernard Rottschaefer
September 2005 - Over the last few months, we've been following the case of Bernard Rottschaefer, the Pennsylvania physician convicted of trading sex for OxyContin prescriptions. The prosecution's star witness was a prostitute named Jennifer Riggle, who testified she'd given Rottschaefer oral sex several times in exchange for opiate painkillers. Under cross-examination, Rottschaefer's attorney asked another woman making the same claims whether or not the doctor was circumcised. She couldn't answer. For reasons I can't fathom, Rottschaefer was still convicted.
As for Riggle, after the trial her boyfriend -- who had been in prison throughout the trial -- released a series of letters she'd written to him in which she admitted to lying under oath. She told her boyfriend in the letters that she'd made up the stories about oral sex in exchange for leniency from the U.S. Attorney's office on her own drug charges. The letters were stamped and dated, the handwriting was determined to be authentically Riggle's, and the boyfriend has signed sworn affidavits. The release of those letters should have at least won Rottschaefer a new trial, if not a judge-ordered acquittal. Neither happened.
Not only that, but the U.S. Attorney in charge of the case -- a law-and-order Republican and "rising star" named Mary Beth Buchanan -- has since steadfastly refused to press perjury charges against Riggle. It's a particularly glaring omission of duty, given that Buchanan has agressively pursued a slate of Democratic officials on perjury charges. In fact, not only has Buchanan's office not prosecuted Riggle, they're rewarding her. In may 2004, the U.S. Attorney's office requested leniency for Riggle in her own drug charges, writing:
"The defendant was fully cooperative and appeared to be truthful and candid. The defendant's cooperation significantly strengthened the government's case against Dr. Bernard Rottschaefer."
Of course, backing down from the plea would amount to an admission of wrongful prosecution on Buchanan's part. Better to let an innocent man go to jail and the lying dope dealer who put him there go free than admit to a mistaken, overly aggressive, politically damaging prosecution.
This case is an outrage.
Radley Balko; Not a War on Doctors; The Agitator; 2005-08-30
Convicted physician seeking new trial in sex-for-pills case
3/2005 - Dr. Bernard Rottschaefer, a doctor convicted of giving drugs to addicts in exchange for sex in his Oakmont examination room, has insisted all along that the women who testified against him were lying.
Now he says he has evidence in writing that at least one of them was. And if he wins the new trial he wants, he'll have the woman's jilted lover to thank.
Rottschaefer's attorneys have received 183 love letters that one of the government's chief witnesses, Jennifer Riggle, 27, wrote to her boyfriend, Barron Shelton, from Aug. 13, 2001, to Feb. 3, 2004, while he was in prison.
In some of them, Riggle stated plainly that she planned to lie to the grand jury and at trial by saying she had sex with Rottschaefer. She hoped her testimony would get her a reduced sentence for selling OxyContin, a narcotic pain reliever.
She ended up with five years of probation in a plea bargain with the U.S. attorney's office.
Shelton turned the letters over to the doctor's attorneys Nov. 10, two days after he got out of prison, apparently because Riggle had taken up with another man while he was behind bars.
Neither Shelton nor Riggle, both of New Kensington, could be reached last week.
But one of Rottschaefer's attorneys, Irving Green, said Shelton's motive was to get back at Riggle for betraying him by showing she was a liar. Shelton also told Green's partner, John Ceraso, that he had followed the Rottschaefer case in the newspaper and didn't want to see a man go to prison for something he didn't do.
Either way, the letters were certainly welcomed by Rottschaefer's legal team in its efforts to keep him out of jail.
"We never knew anything about these letters," said Green, the trial attorney. "I've been practicing law for a long time, and I've never seen anything like this."
The correspondence is part of a motion for a new trial and an appeal by Eli Stutsman, a Portland, Ore., lawyer who defends doctors investigated by the U.S. Drug Enforcement Administration for writing illegal painkiller prescriptions.
The legal team recently suffered a setback, but they say this battle is only beginning.
On Jan. 11, U.S. District Judge Gary Lancaster ruled that the Riggle letters weren't grounds for a new trial because the jury heard a defense witness say that Riggle told her that she lied. Riggle made the admission while the two were in jail in Westmoreland County.
Under the law, the new evidence is considered merely "cumulative," the judge said. Lancaster said the letters were not given under oath, so they can be used "for impeachment purposes only, not for their substance." In other words, they don't count as justification for a new trial. But Green, Ceraso and Stutsman say they should.
"I think the issue is one of fundamental fairness," Green said.
The lawyers have appealed Lancaster's ruling to the 3rd U.S. Circuit Court of Appeals. Stutsman has also appealed the conviction itself, essentially arguing that the government improperly pursued criminal charges when the case is, at best, a medical malpractice claim.
The U.S. attorney's office is preparing a response, which is due by the end of March.
Prosecutors aren't allowed to comment on their strategy. But they are expected to argue that Riggle lied in the letters, not on the stand, because she didn't want Shelton to think she was having sex with someone else. In one letter, she addresses that suspicion directly.
"Honey," she wrote Nov. 14, 2002, "I hope you believe that I didn't do anything with that doctor cause I didn't."
Green acknowledged that possibility and said prosecutors are likely to suggest it in their appellate briefs. The lawyer who handled Riggle's plea bargain, federal public defender Penn Hackney, said he couldn't comment.
Sex and drugs
After a high-profile trial in U.S. District Court in 2003, Rottschaefer, 62, of New Kensington, was found guilty of 153 counts of illegally prescribing painkillers to female addicts, often in exchange for oral sex. He was acquitted on 55 other counts.
In September, Lancaster sentenced him to 6 1/2 years in federal prison, but stayed the sentence pending the appeals.
At the trial, Rottschaefer testified in his own defense that he didn't realize his patients were drug addicts and denied he had sex with any of them. The women all testified that they had sex with him behind the locked door of his exam room, and Rottschaefer's former medical assistant, Diane Wisniewski, said she knew he was having sex with his "little playmates and druggies." She had informed on him to DEA from 2000 until he fired her in August 2003.
Assistant U.S. Attorney Mary Houghton also presented medical files showing Rottschaefer had made no attempt to diagnose or treat the women for their medical complaints other than to write more prescriptions. The women said they returned to the doctor again and again, telling repeated tales of losing their prescriptions, and each time he wrote them new ones.
Riggle testified that she first visited the doctor in the spring of 2001 on the advice of another addict, Pammy Miller. After a few visits, she said, he began fondling her breasts. Eventually, she said, he propositioned her by saying: "You satisfy my needs and I'll satisfy yours." She said she performed oral sex. Afterward, he wrote prescriptions for OxyContin and Xanax.
Three other women -- Miller, Amy Vivio and Sue Ann Leskovic -- told similar tales. A fifth, Corey Schlemmer, said she got drugs from Rottschaefer but didn't have sex with him.
According to Rottschaefer's attorneys, Riggle's cooperation resulted in the dismissal of state charges of selling OxyContin.
She later pleaded guilty in federal court to delivery of the drug and agreed to cooperate against Rottschaefer. In a standard plea letter, signed by U.S. Attorney Mary Beth Buchanan, prosecutors said if she didn't tell the truth, her plea would still stand but the government would not be obligated to request a lenient sentence for her.
"The government may also prosecute Jennifer Riggle for perjury or obstruction of justice," Buchanan wrote.
In May, Buchanan's office filed a motion to reward Riggle for "substantial assistance" against Rottschaefer.
"The defendant was fully cooperative and appeared to be truthful and candid," wrote Houghton, the prosecutor. "The defendant's cooperation significantly strengthened the government's case against Dr. Bernard Rottschaefer."
Lies and letters
One curious aspect of the case is that while the government's investigation is built on the drugs-for-sex allegations, prosecutors said they didn't have to prove Rottschaefer was having sex with anyone.
In court filings and in front of the judge, Houghton said the government had to prove only that Rottschaefer was illegally providing prescriptions for no medical purpose. The drugs-for-sex scenario was the legal "theory" of the case Houghton used to show motive, so it was necessary for her to present the lurid details to the jury.
At the time, though, no one knew anything about Riggle's letters to her boyfriend, many of which she wrote from jail.
In 20 of them, according to Rottschaefer's attorneys, she admits to planning perjury or carrying it out.
"They're saying he was bribing patients with sex for pills, but it never happened to me," she wrote in a Sept. 2, 2002, letter. "DEA said they will cut my time for a good testimony."
Shelton has given a sworn statement that the letters, all handwritten, are authentic. He also included the envelopes, stamped with dates, to prove they weren't written after the fact.
"During the time I was in prison," he wrote, "Ms. Riggle confirmed to me in writing that she was planning on testifying falsely during Dr. Rottschaefer's trial. Ms. Riggle wrote to me that she did not exchange sex for drugs with Dr. Rottschaefer and was only testifying to trading sex for drugs because she did not want to serve time in prison."
Shelton said he tried to persuade her not to lie, but "she wrote to me that Dr. Rottschaefer was a bad doctor and that the other patients were going to testify against him anyway."
Riggle, whom prosecutors said had suffered a near-fatal overdose March 9, 2002, because of Rottschaefer, said she wanted to get out of jail so she could be with Shelton and her young daughter, Casey.
She was released in summer 2003, according to Rottschaefer's attorneys, but by the fall, her relationship with Shelton was on the rocks. In her last letter to him Feb. 3, 2004, she said she had become involved with another man, Dave Cook.
Nine months later, Shelton got out of prison, apparently intent on revenge. He called Ceraso, whom he knew, and promptly delivered the letters.
In addition to Riggle, the defense says, the other women who said they were having sex with Rottschaefer conspired to lie because all were in trouble with the law and wanted to cut deals of one kind or another.
"Once the story was set in place," Green wrote, "each woman had an opportunity to use the system to obtain a lighter sentence by committing perjury."
What's more, Green said, they all knew each other from the streets. The only one who wasn't in the clique was Schlemmer, who was also the one who said she didn't have sex.
The other four, Rottschaefer's attorneys say, simply told DEA and federal prosecutors what they wanted to hear.
"The government," Green said, "created the perfect storm to convict Dr. Rottschaefer."