Physicians can face criminal charges in state or federal court and risk the revocation of their medical license by the Department of Health with little notice and justification. Those who work with pain management programs are more vulnerable to criminal charges than most physicians, but any doctor can be charged with crimes arising from their medical practice.
Department of Health
A patient brings a complaint regarding unlicensed medical treatment, a medical procedure, or the dispensation of medication to the Department of Health. When it receives a complaint, the Department of Health will investigate to determine if the care the physician provided was consistent with the standard of care within the state. There are no federal guidelines for what constitutes medical standard of care so it varies from state to state.
Upon the conclusion of its investigation, the Department of Health may find that the physician followed standards of care practices or that he/she did not. If it is determined that the physician violated the standards of care, they may take several actions including:
- Restriction of practice
- Remedial education
- Administrative cost
- License suspension
- License revocation
The Department of Health cannot impose criminal penalties, though criminal charges may also be filed by state or federal law enforcement personnel. It should also be noted that in 2009, the Florida legislature created a prescription drug monitoring program to track the dispensation of narcotic medications by physicians and allow physicians to track patient prescriptions written by other doctors. http://flboardofmedicine.gov/latest-news/prescription-drug-monitoring-program-2/ While the information on prescription dispensing and utilization is collected by the Florida Department of Health, it can be accessed and utilized by state and federal law enforcement agencies.
A patient can also file charges related to the medical treatment they received or the dispensation of medications to state and federal law enforcement agencies who will investigate those charges. Once this occurs, it is critical that the doctor hire a certified state and federal criminal defense attorney who also has experience with the Department of Health. There are two important reasons for this:
- Investigators will not review all of the physician’s medical records for a specific time period, but instead will “cherry pick” the charts and records of those patients who either lied to the doctor to receive unnecessary medication or who are seeking to file malpractice claims against the physician. The investigators are not required to present fair and objective findings to the prosecutor so this practice is quite common.
- Arrests, not convictions, are what law enforcement management considers when promoting law enforcement agents. It is in the officers’ best interests to make arrests regardless of whether those arrests are reasonable under the entire facts of the cases.
Most criminal charges stem from a physician issuing prescriptions for narcotics. Federal charges are filed under 21 U.S. Code § 841 – Prohibited acts A, which is used to prosecute illegal drug manufacturing and distribution. https://www.law.cornell.edu/uscode/text/21/841. Physicians will face the same minimum mandatory sentencing guidelines as other drug defendants.
There are several defenses to criminal charges arising from medical treatment cases. The focus of the defense is whether the:
- The physician acted within the state’s Standard of Care
- The care provided served a legitimate medical need
The focus is on what the physician believed to be true on the day and time that the treatment/prescription was given. A physician cannot be held accountable if a patient lied if the doctor had no reason to suspect or believe that their patient lied. If a complaint had also been filed with the Department of Health, their findings can also be used as part of the defense if those findings were favorable to the physician.
When complaints are filed against a doctor, their license, and potentially their freedom, is at risk. Hiring a certified state and federal criminal defense attorney with experience working with the Department of Health is the physician’s best defense.