OXYCONTIN CASE

3 doctors fight jail time amid appeals

By Kenneth A. Gailliard
The Sun News
Thu, Jul. 15, 2004



FLORENCE -
Three former doctors from the defunct Comprehensive Care and Pain Management Center in Myrtle Beach should remain free on bond because they may have been convicted and sentenced improperly, their lawyers said Wednesday.

"That's not a technicality," said attorney Eli D. Stutsman, who has appealed the convictions based on the legal standard used. "That is huge."

The doctors' lawyers also plan to appeal their sentences based on a recent U.S. Supreme Court decision regarding information juries should consider before sentencing, Stutsman said. Lawyers want the doctors free while the appeals are pending.

Federal Magistrate Judge Thomas E. Rogers was expected to decide Wednesday whether doctors Deborah Bordeaux, Ricardo Alerre and Michael Jackson should begin serving the prison sentences they received in February. Instead, Rogers allowed defense lawyers and prosecutors time to research the Supreme Court ruling, which could lead to reduced sentences for the doctors.

The three have orders to report to prison within a month, but it is not likely they will report before the next hearing before Rogers is scheduled, said Assistant U.S. Attorney Bill Day.

Jackson, Alerre and Bordeaux are among seven doctors sentenced in what prosecutors said was their largest case involving doctors charged with overprescribing narcotics, including the potent painkiller OxyContin.

On Wednesday, Stutsman said appeals have been filed asserting that prosecutors convicted the doctors with a case based about 70 percent on whether the drugs prescribed at the pain clinic were medically necessary.

He said prosecutors stressed throughout the trial that the drugs distributed were not medically necessary, instead of saying the drugs were prescribed outside normal medical practice.

Stutsman told Rogers that, by arguing medical necessity, prosecutors used a civil standard in a criminal case, which was improper. The civil standard could be used to prove negligence but not a criminal violation, he said.

Day said prosecutors used the correct standard by proving the doctors acted outside their the course of their professional practice.

"You would expect a doctor to examine a patient before prescribing drugs," he said. "And I would think they would ask if they took all the medicine from the month before before prescribing more."

Stutsman said lawyers also will challenge the doctors' sentences citing a Supreme Court decision last month - Blakely v. Washington. A judge cannot set a sentence using information a jury did not consider, according to the Blakely ruling, Stutsman said.

Bordeaux, Jackson and Alerre's sentences were improperly tied to the total amount of narcotics distributed at the clinic and not the quantity each prescribed.

Bordeaux, for example, was specifically charged with writing four prescriptions to two patients but was assigned a share of responsibility for the entire amount of drugs prescribed at the clinic.

Day said although the indictment didn't link doctors to specific quantities of drugs, jurors heard during trial about specific prescriptions each was accused of writing.

An appellate court must decide both issues. Stutsman said it could take as long as 15 months for the appeal to be heard.

Jackson, Alerre and Bordeaux received sentences of 24 years and four months, 19 years and seven months, and eight years and one month, respectively.

The clinic's owner, Michael Woodward, pleaded guilty in exchange for lighter sentences.





OxyContin sentencing today



Posted on Tue, Feb. 17, 2004

Five doctors guilty of illegal activities at pain center
By Kenneth A. Gailliard
The Sun News

Five doctors from the former Comprehensive Care and Pain Management Center will be sentenced today in federal court in Florence, nearly three years after the clinic closed and its doctors were charged with illegally distributing narcotics, including the painkiller OxyContin.

Drs. Michael Jackson, Ricardo Alerre, Deborah Bordeaux, Deborah Sutherland and Thomas Devlin are among eight doctors named in a 93-count indictment alleging illegal activities at the clinic between 1997 and 2001.

At trial last year for Alerre, Bordeaux and Jackson, authorities said the clinic's practices attracted clients from as far as Lancaster.

Since the clinic closed, OxyContin arrests have declined slightly, Myrtle Beach police said, but it's still a problem.

Pharmacy break-ins and cases of patients shopping for doctors - looking for ones willing to prescribe the drug - also have been down, said Myrtle Beach police narcotics Officer Amy Prock.

"Doctor shopping was really prevalent down here before," Prock said. Area pharmacists also said they have noticed a slight decline in the number of prescriptions for the drug since the clinic closed.

OxyContin is a popular painkiller prescribed by several doctors, said Jon Howell, a pharmacist at Northside Pharmacy in Myrtle Beach. "Many pharmacists are trying to control the use of it better than theywere," he said. Howell said he no longer stocks high doses of OxyContin in an attempt to control misuse.

Under the leadership of its owner Dr. Michael Woodward, the pain clinic gained a reputation as a pill mill where drugs such as OxyContin, Lortab and others were easily prescribed, prosecutors said. Woodward pleaded guilty to money laundering and conspiracy to distribute oxycodone, the primary ingredient in OxyContin, and health care fraud. He was sentenced in September to 15 years in prison. Another doctor, Venkata Pulivarthi, also pleaded guilty and was sentenced to three years probation.

Jackson, Bordeaux and Alerre, were found guilty of conspiracy to unlawfully distribute and dispense controlled substances, conspiracy to launder money and varied charges of distribution of oxycodone. Sutherland and Devlin pleaded guilty to lesser charges.

About the trial

Federal indictment | Included charges against eight doctors and three employees from the former Myrtle Beach Comprehensive Care and Pain Management Center.

What was done | Illegal activities, including overprescribing narcotics, involving hundreds of pain center patients while the accused were associated with the center from 1997 to 2001.

The charged | All but three of those named in the indictment pleaded guilty to lesser charges. One doctor, Benjamin Moore, committed suicide.




South Carolina



All charges against physicians relate to a clinic located in Myrtle Beach, SC called 'Comprehensive Care and Pain Management Centers'.



Indictment June 25, 2002

  • 21 U.S.C. 846 CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCE
  • 21 U.S.C. 841(a)(1) CONTROLLED SUBSTANCE - SELL, DISTRIBUTE, OR DISPENSE
  • 21 U.S.C. 843(a)(3) CONTROLLED SUBSTANCE - POSSESSION
  • 18 U.S.C. 2 AID AND ABET; with forfeiture allegations
  • 18 U.S.C. 1956(a) MONEY LAUNDERING - CONTROLLED SUBSTANCE - SELL/DISTR/DISP
  • 18 U.S.C. 1956(h) MONEY LAUNDERING - CONTROLLED SUBSTANCE - SELL/DISTR/DISP
  • 21 U.S.C. 853 forfeiture allegations
  • 18 U.S.C. 982 forfeiture allegations


Superseding Indictment August 28, 2002

  • 21 U.S.C. 846 CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCE
  • 21 U.S.C. 841(a)(1) CONTROLLED SUBSTANCE - SELL, DISTRIBUTE, OR DISPENSE
  • 21 U.S.C. 843(a)(3) CONTROLLED SUBSTANCE - POSSESSION
  • 18 U.S.C. 2 AID AND ABET; with forfeiture allegations
  • 18 U.S.C. 1956(a) MONEY LAUNDERING - CONTROLLED SUBSTANCE - SELL/DISTR/DISP
  • 18 U.S.C. 1956(h) MONEY LAUNDERING - CONTROLLED SUBSTANCE - SELL/DISTR/DISP
  • 21 U.S.C. 853 forfeiture allegations
  • 18 U.S.C. 982 forfeiture allegations
  • 18 U.S.C. 1347 HEALTH CARE FRAUD






David Von Vandergriff

Vandergriff is still a free man, even though he was sentenced to 15 months in prison.


Dr. Venkata Pulivarthi

In a six-page plea agreement signed on October 15, 2002, Dr. Venkata Pulivarthi pleaded guilty to the lesser charge of conspiracy to distribute Schedule IV controlled substances such as Valium, Xanax and Ambien. Assistant U.S. Attorney William E. Day II of the Florence office said the more serious charges of conspiracy to distribute drugs such as OxyContin, Lorcet, Lortab and Vicodin will be dismissed after Pulivarthi cooperates with authorities. (Pulivarthi has agreed to testify against the other defendants, even though he was the last to be hired at the clinic and has never met several of the other doctors. Instead of facing 20 years to life in prison, Pulivarthi will be facing up to a maximum of three years in prison.


Dr. David Michael Woodward


Dr. Woodward was the owner of Comprehensive Care and Pain Management Center. Woodward was denied bond and has been in jail since his arrest on June 26, 2002.
http://www.mapinc.org/drugnews/v02/n1444/a04.html?186


Dr. Deborah Sutherland


Dr. Sutherland was arrested in New Zealand on October 21, 2002 and is fighting extradition.
http://www.mapinc.org/drugnews/v02/n1444/a04.html?186


The following physicians are free on bond and awaiting trial scheduled for January 6, 2003.


Dr. Deborah Bordeaux

Attorney Mary Baluss comments on Bordeaux's arrest:
http://www.cpmission.com/main/deborah.html



Dr. Michael Jackson


Dr. Thomas P. Devlin


Dr. Ricardo Alerre









STRUCTURE



One thing that was of considerable interest to me in the Federal trial in South Carolina was the role "structure" played in the trial. The clinic in question routinely fired patients from the practice, maintained a policy of some urine and blood screens (which were done by Quest Diagnostics, the company which shared interior space with this supposed "pill mill") and otherwise employed a staff of people, one trained counselor to address issues of possible bad behavior who referred such people either to a local psychologist or who fired them outright if the infractions were repeated.

Some people had stickers on their charts reflecting that they were always to be dealt with at length and were not to be assumed to be utterly on the up and up. Still, the doctors and others there thought, we're doing what we should be doing, no one can fault us for it.

One poignant moment was when Dr. Alirre, a 73 year old Air Force surgeon was testifying about his impressions about legality/illegality. The clinic was almost always being investigated, they were sending in undercover agents all the time. He said that he asked Dr. Woodward, the supposed mastermind of this "pill mill" if it were legal to give medicine to people like this. In his experience it had been so unpopular to treat pain almost at all that he was concerned that simply treating it might be illegal. Woodward showed him all the scientific literature (Portenoy, et al) and pointed out that they would have to be awfully stupid to be doing something illegal when the authorities were always watching.

Allire, believing in the civilized notion that police would only go after people who were intending to do criminal actions, thought that this argument was very convincing. He followed Woodward around and was trained by him for several months. Turns out that the police were able to arrest and incarcerate (and hence elicit testimony from) several patients who were Dr. Allire's patients and this is why he has the lion's share of the convictions now. He didn't do any more wrong than anybody else (and as far as I can tell there was only a conspiracy, and it was between Woodward, Vandergriff, and the office manager Windy Suggs to do Medicare Fraud, nothing to do with the legitimate practice of medicine or controlled substances)

But the DEA was determined to bust a "pill mill" and so, with the full power to incarcerate, extradite, spend money and manipulate the media, the Federal Government of the most powerful country in the world was able to succeed in it.

My point regarding "structure" is that it is an illusion. The pain contracts did no good. The urine and blood tests were used against the doctors because why, if there was a negative screen for oxycodone (which of course has a large margin for error and many people's oxy doesn't show up properly , nay even in the PDR, Oxycontin says not to rely on screens because of their inherent inaccuracy) did you ever give that person, who had documented extreme pain, ever give them one more pill?

All of the gray areas were portrayed by the prosecutors as smoke screens behind which the doctors pretended to practice medicine as they really just operated a pill mill. Sure it was ludicrous, but it worked. I am praying we can reverse it, at least regards Dr. Bordeaux.

But back to structure. As those of you who have been reading me know, I think that it is demeaning and horrendous and goes against the basic and most primary medical precept of maintaining the patient's dignity and autonomy. I believe that all this focus on abuse has no place in a legitimate doctor-patient relationship. I think that the pain community made its fatal error when it adopted this police duty demanded of it by the authorities (back then we still thought opioids were being abused a lot and were inherently dangerous, I know) and we are all now paying the price because the prosecution I witnessed was for the doctor's failure to be good cops, not for failure to be good doctors.

Once you allowed your role to be fundamentally changed as it was, you left yourselves open to this nightmare. You can't restrict patients enough to satisfy the DEA. They hate pain patients, think they' re lying scum, and insist you treat them that way or be thrown in jail for the rest of your life.

You can't assume a major part of your opponent's rationale into your behavior and then oppose your opponent successfully on any other front. Once you have done this (and structure is the DEA ugliness made real in the lives of your patients) you have lost it all. Doctors are not cops and ought never be cops. Never.

The doctor's capitulation on this fundamental part of medical practice appears to be the real reason why we haven't been able to get anywhere. It's the profession's dirty little secret.

What good will it do if we can get the Feds out of the Meds or the Cops off the Docs if you guys haven't given this part of the nightmare a good long look and renounced your role as officers of the law? Mistakes get made when people are under pressure but we need to own our mistakes and try to correct them.

Just a thought.

All the Best,
Siobhan Reynolds
On Beyond Films, Inc.




One last lesson


If the protective measures Ms. Reynolds has enumerated are necessary to survive as a doctor treating pain (and I think they are), then the spirit of pain medicine has been deformed. Paranoia replaces compassion as the guide to treatment. How things look to interested third parties governs clinical decisions, not patient response.

To borrow a phrase from the current war on terrorism, we (physicians) are all soft targets. Our disposition to trust our patients is our weakness, as well as our virtue. Yet the freedom to engage our patients in relationships predicated on mutual trust is the necessary basis for ethical and effective pain practice, even given the risk of patient deception and dishonesty. Like the country at large, we are sacrificing this freedom for the illusion of security. Until we establish a mechanism that provides the security to trust our patients, we will not be really free to practice medicine.


William E. Hurwitz, MD



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