Alexander DeLuca, M.D.
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.
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