Legal Services for Anesthesiologists and Pain Management Clinics
The Health Law Group has represented anesthesiologists and pain management clinics in connection with all types of business transactions, government investigations, and criminal charges to great success.
Our attorneys have spent years representing anesthesiologists in all types of cases including charges of healthcare fraud, insurance fraud, medical malpractice, and more. Anesthesiologists can face a wide range of charges, and penalties can be steep.
Below, we will discuss some of the pertinent criminal and civil statutes, regulations, penalties, and examples of how they specifically relate to anesthesiologists and their practice:
- Prohibited Acts – 21 U.S. Code § 841
- The Controlled Substances Act (“CSA”) – 21 U.S. Code § 801
- CSA Guidelines to Prescribing Controlled Substances
- Sentencing for Controlled Substance Act Violations
- Prescribing Power of Anesthesiologists
- Defenses to Charges of Health Care Fraud
- Recent Health Care Fraud Cases Involving Anesthesiologists
- What Should You Do If You Are Charged or Put Under Investigation?
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Prohibited Acts – 21 U.S. Code § 841
21 U.S. Code § 841 makes it illegal to knowingly or intentionally:
- Manufacture;
- Distribute;
- Dispense; or
- Possess a controlled substance with the intent to manufacture, distribute, or dispense;
- in violation of the procedures set forth in the CSA.
So, while licensed physicians are permitted to prescribe controlled substances, they must do so in accordance with specific guidelines. Any deviation can give rise to criminal liability.
The Controlled Substances Act (CSA) – 21 U.S. Code § 801
Cases involving the power to prescribe medications most commonly give rise to charges under the Controlled Substances Act (CSA).
The CSA is a federal statute regulating the:
- Manufacture;
- Importation;
- Possession;
- Use; and
- Distribution of certain substances.
Under the CSA, drugs are classified into five (5) different schedules. These classifications are determined by the substances:
- potential for abuse;
- accepted medical purpose; and
- their likelihood to cause addiction.
Classification Schedules
Below is a general overview of the Controlled Substance Act classification schedules:
| Schedule Number | Abuse Potential | Medical Purpose | Addiction Potential | Common Examples |
|---|---|---|---|---|
| 1 | High | None | Severe Physical and Mental | Heroin, LSD |
| 2 | High | Severely Restricted | Severe Physical and Mental | Cocain, Metadone |
| 3 | Medium | Yes | Severe Mental, Moderate Physical | Ketamine, Steroids |
| 4 | Low | Yes | Mild Mental or Physical | Xanax, Barbituates |
| 5 | Lowest | Yes | Mild Mental or Physical | Cough Supressants |
CSA Guidelines to Prescribing Controlled Substances
Practitioners Must Prescribe for a Legitimate Medical Need. The CSA requires that prescriptions for controlled substances be issued only in response to legitimate medical need.
Make Sure That Your Assessment of Your Patients is Complete. Failure to spend an appropriate length of time with a patient, or to ask concrete questions to assess the patient’s pain level, could constitute a violation. The accusation would be that you issued the prescription or administered a drug without gathering enough information to determine its necessity.
Sentencing for Controlled Substance Act Violations
Harm Caused by Your Conduct. Sentencing for CSA violations will depend on the harm caused by your conduct, as we touched on above. If a patient is killed or injured as a result of your deviation from CSA standards, that will be considered in determining your sentence.
Extent of Your Deviation. The extent of your deviation will also have a tremendous impact on your sentencing. An anesthesiologist who slightly failed to comply with diagnostic protocol will be treated far more favorably than one who knowingly issued cash prescriptions to drug addicts, for example.
Our attorneys will explain the relevant laws in detail during your risk-free consultation so that you understand the full extent of the charges you are facing. After our consultation, you will be able to make an informed decision regarding what steps to take and how to move forward.
Prescribing Power of Anesthesiologists
Healthcare fraud committed by anesthesiologists can involve a wide variety of conduct, from submitting claims for services not rendered, to the illegal receipt of kickbacks, to unbundling services in order to receive more reimbursement than you are entitled to.
However, the most aggressively prosecuted cases of healthcare fraud committed by anesthesiologists involve the abuse of their prescribing power.
Indeed, due to your role in administering medication to ease pain and discomfort, you are under exceptional scrutiny as an anesthesiologist. The opioid epidemic has claimed countless lives and resulted in a dramatic intensification of law enforcement efforts to uncover all potential sources of unlawful and/or unsafe opioid distribution.
Our clients have ranged from anesthesiologists who believed they were lawfully issuing prescriptions for pain relief, to those knowingly profiting off of addicts. The trouble with any type of unlawful behavior involving pain prescriptions is that opioid abuse is deadly, with fatalities demanding a high degree of investigative urgency.
As a result, penalties faced by anesthesiologists convicted of healthcare fraud tend to be more severe than those imposed on other types of providers. Since the impact of your conduct is a factor in sentencing, prescribing pain medication to an addict can be incredibly dangerous when that addict ends up injured or killed as a result of opioid abuse. Even relatively minor forms of fraud can result in severe penalties when patient safety is jeopardized.
Defenses to Charges of Health Care Fraud
Intent is a necessary element in most healthcare fraud statutes. Because of this, generally, the most effective defense is to establish that the prosecution has failed to present enough evidence that you knowingly committed the fraudulent acts.
The particular form of this defense will vary according to the statute you are charged with violating as well as your individual circumstances.
However, the common theme is that while many criminal defense attorneys are simply showing up for court appearances and buying time, we seek to demonstrate weaknesses in the prosecution’s evidence from the start of the case. This sets us, and you, apart from in the prosecution’s eyes, because it demonstrates that we are paying close attention and that succeeding against us will not be an easy task.
At the same time, we get to know your story, both as it relates to the charges you face and to your life outside of your criminal case. By doing so, we are armed with the information we need to gently but effectively persuade the prosecution that you are the type of person who deserves a second chance.
Sometimes this results in the prosecution dropping all charges. Other times it results in a more favorable plea deal than you could have imagined. Many times our clients were facing decades behind bars, only to be offered a jail free plea deal in the end.
However, the final decision to go to trial is always up to you. While we will seek to provide you with all of the information you need to understand your chances of success, we will put all of our resources behind whatever decision you make.
Recent Healthcare Fraud Cases Involving Anesthesiologists
As the cases below demonstrate, penalties imposed on anesthesiologists convicted of healthcare fraud can vary widely depending on the breadth and impact of the relevant conduct.
Example #1
A Kentucky anesthesiologist, Jaime Guerrero, was charged with:
- unlawful distribution of
- controlled substances,
- health care fraud,
- conspiracy, and
- money-laundering.
- Unlawful Distribution of Controlled Substances
The unlawful distribution of controlled substances charge involved a conspiracy to distribute Schedule II and III controlled substances to patients, without a legitimate medical purpose, and beyond the bounds of professional medical practice. Guerrero routinely prescribed controlled substances after spending mere minutes with patients. The scheme lasted nearly five years and resulted in the death of one patient. - Health Care Fraud
The three counts of healthcare fraud stemmed from Guerrero’s practice of billing for sessions provided by a nurse practitioner as if he had provided them himself. While he was on vacation, he directed non licensed staff members to conduct group sessions, which he billed as individual sessions provided by him. For the sessions he provided himself, he frequently upcoded visits and billed for medically unnecessary services. - Money Laundering
Finally, the money laundering charge arose because Guerrero hid his unlawful earnings by paying nearly $90,000 in taxes on a building he purchased in cash.
Conclusion – Guerrero Took a Plea
Guerrero eventually agreed to a plea deal in 2016 which imposed an 8-year prison sentence. As part of the deal, he agreed to forfeit property owned by his real estate company as well as his medical license. He also paid over $800,000 in victim restitution to healthcare benefit programs he defrauded.
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Example #2
A similar story involves a Washington anesthesiologist who was charged with issuing illegal oxycodone prescriptions. The anesthesiologist had spent over a year issuing cash prescriptions out of the parking lot of his medical clinic.
The anesthesiologist also filled prescriptions himself and sold the pills directly to consumers, knowing that purchasers were reselling to addicts. His crime was detected by DEA agents investigating the opioid crisis.
As a result, the anesthesiologist accepted a plea agreement which involved forfeiting his car as well as various brokerage and bank accounts. He received a five-year prison sentence and three years of supervised release.
Example #3
An exceptionally egregious example occurred in 2015 when a jury convicted anesthesiologist Theodore Okechuku and three others of running a pill mill operation in Texas. Each member of the operation pled guilty to one count of conspiracy to unlawfully distribute a controlled substance.
In addition, Okechuku was charged with using, carrying, and brandishing a firearm in the commission of a drug trafficking crime.
Okechuku owned and operated a Medical Rehabilitation Clinic which served as the front for a “pill mill.” Office visits essentially involved the exchange of cash for prescriptions. Co-conspirators were in charge of recruiting new patients, often driving individuals from homeless shelters in pursuit of opioid prescriptions. Patients were routinely given a 30-day prescription and diagnosed with back pain after brief visits.
The anesthesiologist was sentenced to 25 years in federal prison in connection with the scheme.
What Should You Do If You Are Charged or Put Under Investigation?
If you have been charged with any kind of healthcare fraud as an anesthesiologist, our attorneys are available to assist you. Our collective years defending healthcare professionals afford us the necessary skills to generate the best outcome possible in your case.
We believe there is no substitute for effort, and you can rest assured that we will work tirelessly for your freedom. We know that our clients are facing the potential of years behind bars, the loss of their medical licenses, millions in fines, and permanent damage to their reputations.
Please do not hesitate to contact us for a risk-free consultation today. The sooner you understand the full nature of your circumstances, the sooner you can get to work on creating better ones. We are available to provide 100% confidential guidance regarding your criminal liability, and should you choose to retain us, we will tirelessly advocate for your best interests.