EVIDENCE ISSUES IN DRUG DIVERSION CASES:

The elements of a 21/841(a)(1) illegal distribution or dispensation case are: (1) the defendant knowingly or intentionally, (2) distributed
or dispensed, (3) a controlled substance. While the indictment does not have to state, the government must prove the illegality of the
physician’s or pharmacist’s conduct by showing that (4) there was no legitimate medical purpose for the prescription (or order) for the
controlled substan ce, and (5) the do ctor/pharm acist issued /filled the pres cription ou tside the co urse of pro fessional p ractice. See the
Quick Reference Card for case law an d more detailed explanations here . The table below contains several facts that prove knowledge
and intent, and lack of legitimate medical purpose and outside the scope of professional practice. Remember that the government can
use evide nce of w illful blindne ss to me et its burden on the in tent elem ent for this o ffense. See Federal Jury Practice & Instructions, 5 th
Edition, W est (200 0), Section 17.09 . The tab le focuse s on doc tors, but m any facts apply e qually to a target pha rmacist’s in tent.

IF THE PATIENT: THEN THE DOCTOR: ADDITIONAL REMARKS

Was an intravenous drug user
knew of or should have detected track Get testimony from patients, their family
marks members, and other physicians or pharmacists
about their intravenous drug use. Check drug
treatment centers; Get patient release. Have
your expert cover signs exhibited by
intravenous drug user.

Snorted drugs knew of or should have detected damage Same as above.

to nasal passages.

Going to multiple doctors
knew about this based on information in
patient files or daily log sheet (staff notes
of pharmacy calls re: patient and
multiple doctors) or should have known
based on reasonable practice of checking
with pharmacies when other facts lead to
suspicion of multiple docs.
Remember: Private plans often send “frequent
flyer” letters to doctors, stating the plan is
concerned about the patient getting controlled
substances from so many doctors. Make sure
to look for these in your search warrants, get
these if you have a private plan involved, and
ask office staff about them.

Has seen an expert should have reviewed information from
referrals and followed the expert’s advice
(particularly on opioid maintenance
issues and contemporaneous treatment
plans).
Remember to ask your expert about this.
Remember to subpoena files of referral
doctors to learn extent of treatment and that
doctor’s experience with the patient and
target physician/office.

Visited the doctor’s home to get knew of or should have known outside Expert can talk about answering services, on-
prescription the course of professional practice. call issues. If your doctor does not have such
a service or no one to back him up, this may
serve as circumstantial evidence of outside
the course . . . Also, look for evidence of
trading stuff/services for prescriptions.

Traveled a long distance to see the Same. Files should show out of state/county/area
doctor addresses or no addresses. Ask patients about
parking lot parties. Check with nearby
stores/businesses about whether they saw out
of state license plates.

Waited for more than four hours to Same. Question patient-handling policies,
see doctor appointment scheduling, etc.

Told the doctor he or she was a Same. Does the file contain this information? Did the
drug addict doctor try to treat the patient’s addiction?
Was he licensed to do so? Check state and
federal regulations. Did the doc prescribe the
problem drugs anyway?

Had insurance, but paid cash for
visits and prescriptions
Same. All cash is a big problem. Check to see if
patient paid cash at the pharmacy. Check to
see if your pharmacist inflated price of drugs
for which patient paid cash. May show a cut
for the pharmacist.

EVIDENCE POINTS FOR D R U G D I V E R S IO N C A S E S (A U T H O R S : B O L E N , R A M S E Y E R & W O O D – J U L Y 2002) PAGE – 1

 IF THE PATIENT:
Quality of life did not improve
Failed a urine or blood screen,
meaning the drugs the physician
prescribed to the patient were not
showing up in urine or blood
screens
Failed pill counts, meaning the
patient brings in empty pill bottles
on subsequent office visits
Has a criminal history for drug
offenses
IF TA RGE T’S EM PLO YEE ’S
TOLD HIM/HER:
The patient was a drug addict or
dealer
The patient was convicted of a
crime
The patient was a “frequent flyer”
The patient keeps coming back
early or calling in for prescriptions.
That several members of the same
family are getting drugs.
The patient appeared to be “under
the influence” of alcohol or drugs
during visits or “drop bys” to get
prescriptions.
EVIDENCE POINTS FOR D R U G D I V E R S IO N C A S E S (A U T H O R S : B O L E N , R A M S E Y E R & W O O D – J U L Y 2002)
THEN DOCTOR: ADDITIONAL REMARKS
Same. In the pain world, if drug therapy is not
helping the patient get better, new drug
combinations are tried and new non-
pharmacologic therapies are used.
knew of or should have known patient The real pain doctors use these screens
was diverting drugs. regularly.
knew of or should have known patient The real pain doctors will schedule follow-up
was seeking drugs for abuse or diversion. visits at appropriate intervals, timing them to
ensure patient should still have pills left. This
is because true chronic pain patients and the
physicians treating them do not wait until the
patient is completely out of pain meds before
sched. a follow-up.
Same. Sometimes there is direct evidence in the file
that the doctor knew that the defendant had
convictions for prior drug offenses. For
instance, determine whether the doctor ever
contacted the patient’s probation officer while
the patient was on probation for a drug
offense. Find out why the doctor called the
probation officer and determine whether the
doctor continued to prescribe drugs to
patient.
THEN PHYSICIAN: ADDITIONAL COM MENTS
knew of or should have known patient This happens a lot. Make sure your
was seeking drugs for abuse or diversion. interview/testimony questions cover this point.
Look in daily journals, phone messages,
“catch files” (miscellaneous files with notes to
doctor), computer files.
Same. Same.
Same. Frequently, staff gets a phone call from a
pharmacist who is concerned about the
patient getting drugs from several doctors.
Many honest staff members will make calls to
other pharmacies to confirm the concern and
then report it to the doc.
Same. Check for notes in medical files.
Same. Make a summary chart showing the existence
of the “Lortab Family” or the “Morphine
Family.” This happens A LOT!
Same. Make sure this is part of your
interview/testimony outline. Also ask about
behaviors suggesting addiction, i.e.,
scratching face or body repeatedly (it is a
side-effect of hydrocodone products and
addicts often have big scabs on their face and
sores on their bodies).
PAGE – 2
 IF TA RGE T’S EM PLO YEE ’S THEN PHYSICIAN: ADDITIONAL COM MENTS
TOLD HIM/HER:

Someone keeps leaving anonymous
messages or making calls about a
particular patient or about the
practice overall for being a “drug
store.”
Same. Amazingly, the physician and his staff often
save this information, even if they are true!
ALSO, ask whether anyone ever taped an
anonymous message to the clinic’s door or
windows.

Family members called and asked
the doctor not to prescribe any
more drugs for the patient.
Same. Applies especially where there is evidence of a
non-lethal overdose. We know of one father
who took his son’s picture to the doctor and
begged him to stop prescribing OxyContin,
Soma, and Hydrocodone. This was before the
son overdosed and died.

OTHER STUFF THEN THE DOCTOR ADDITIONAL COM MENTS

The doctor used a device to detect Has a big problem. Obviously, the doctor is concerned about
if the patient was wearing a wire. undercover agents.

The patient’s family told the doctor Knew of or should have known patient This happens quite a bit. Make sure it is part
the patient was a drug abuser. was seeking drugs for abuse or diversion. of your interview and testimony strategy.

The patient used a Medicaid taxi
service to go to the doctor, but the
patient pays large cash sums for
office visits, prescriptions, and the
drugs themselves.
May have had someone on office staff
call taxi for return trip, or someone saw
the taxi waiting (interesting for pain
patients, whose visits usually take
longer), etc. Knew of or should have
known patient was seeking drugs for
abuse or diversion.
Certain Medicaid Beneficiaries are allowed to
contract with taxi services, who in turn bill
their services to the program. In rural areas
this can be a mom and pop operation.
Medicaid taxi information varies from state to
state, but should include patient name, pick
up point and destination, mileage, and
amount charged. Contact your Medicaid
provider to get a database showing the above
information.

GRAND JURY ISSUES :

Using the grand jury aggressively in drug diversion cases is important because of the blended drug and fraud issues. Consider putting the
following people before the grand ju ry: (1) mo st, if not all, of the physician ’s staff; (2) all pa tients who received p rescriptions y ou plan to
use in your indictment; (3) any patient family members who have good information; (4) pharmacists you do not plan on charging (get
them committed to the pharmacist’s corresponding liability); (5) State Board Investigators – medical and pharmacy; (6) adjacent
busine ss own ers wh o were in posit ions to see the physic ian’s p ractice , espec ially tho se bus iness o wners who a re sha ky abo ut their
situation; a nd (7) no n-pharm acist, pha rmacy emplo yees (they see and deal with a great de al, espec ially the ph armac y technic ians).

Prepared and presented by:

Jennife r Bolen , Assista nt U.S . Attorn ey, US AO-E DTN ; jennifer.bolen@usdoj.gov

Rand y Ram seyer, A ssistan t U.S. A ttorney , USA O-W DVA ; randy.ramseyer@usdoj.gov
Gregg Woo d, Hea lth Car e Frau d Inves tigator, U SAO -WD VA; gregory.wood@usdoj.gov

Health Care Fraud Special Issues Symposium

National Advocacy Center, U.S. Department of Justice, Office of Legal Education
July 16-18, 2002

Any opinions set forth herein are those of the authors’ and do not necessarily reflect the opinion of the Department of Justice. Nothing contained herein is intended to create any
substantive or p rocedural rights, privilege s, or benefits enfo rceable in any ad ministrative, civil, or criminal m atter by any pro spective or ac tual witnesses o r parties. U. S . v. Ca ce r e s, 4 4 0
U.S. 741 (1 979).

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