The latest battle in the war on drugs is being waged at the doctor's office. California authorities are cracking down on RX fraud, prescription forgery and doctor shopping.
These practices made headlines when talk-radio host Rush Limbaugh turned himself into authorities on prescription drug abuse charges. Celebrity deaths, including that of actor Cory Haim, also have been linked to prescribed narcotics.
Misuse in taking or prescribing controlled substances can have severe consequences. But at the same time prescription drug cases are often complicated. Patients need treatment for pain and doctors want to alleviate suffering.
We represent doctors and patients accused of prescription insurance fraud, prescription forgery and "doctor shopping." Our California Criminal Defense Lawyers1 bring years of experience to your case. We've been cops and prosecutors...including drug crimes prosecutors...and we've logged countless hours in the courtroom as criminal defense attorneys.
This article provides an introduction to California Health & Safety Code Sections 11173 and 11153 hs. If you have questions after reading it, please give us a call at Shouse Law Group.
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The legal definition of "doctor shopping" is using multiple providers and pharmacies to get multiple prescriptions for controlled substances, without the providers and pharmacies knowing about the other prescriptions.2 The practice is also referred to as "prescription fraud" or "RX fraud."
Example: Two years ago, Andrea was injured in an auto accident. She has since suffered from back pain. Her primary care physician prescribed hydrocodone and percocet for a year and then said that was it. He recommended that Andrea consult a pain specialist, which she did without success. The pain has been getting worse and, knowing her primary care physician won't write scripts for pain meds, for the past year Andrea has visited seven doctors at different offices and clinics around town. She does not tell the new doctors about the other doctors or pain meds, even when they ask her. She goes to different pharmacies to fill the prescriptions.
Andrea is engaging in doctor shopping. She is trying to get as much hydrocodone and percocet as possible without any single doctor or pharmacy finding out about it.
Doctor shopping is one of a number of possible drug-related offenses involving California Drug Laws. These range from HS 11350 Possession of a Controlled Substance to DUI Vicodin to DUI Ambien or Lunesta to large-scale narcotics trafficking.
Any drug charge is serious. It can impact your reputation, your livelihood and your physical and emotional health. If you have been accused of prescription drug fraud, we invite you to call our California Criminal Defense Lawyers to discuss your case.
California's primary doctor shopping law is Health & Safety Code Section 11173(a).3 This statute prohibits a person from obtaining a prescription by fraud or by concealing a material fact. It is illegal to
- obtain or attempt to obtain4
- a prescription for controlled substances
- by fraud or by concealing important information5
Controlled substances are listed on the five classification schedules of California and federal drug crime laws.6 They include:
- opiates (hydrocodone, morphine, oxycodone, etc.)
- depressants (xanax, valium, ambien, etc.)
- stimulants (adderall, ritalin, etc.)
Section 11173 hs is broad. It includes attempts to obtain prescriptions for controlled substances by
- concealment of material fact
If we return to our example, Andrea is probably concealing a material fact from doctors when she does not tell them that she is already on pain meds and under another doctor's care.
Prescription drug addiction
One of the saddest aspects of prescription fraud cases is that they often involve people who are not your typical lawbreakers. They are people like Andrea...who suffer from real pain and may have gotten addicted to pills in the first place because of negligent physicians.
Drug addiction can spiral out of control. Doctor shopping may lead to forgery of prescriptions, purchasing or sale of controlled substances on the street, or even burglary of pharmacies. Someone who started with physical pain may soon face multiple felony charges and jail time.
Further, as we discuss below, this person may not be eligible for drug diversion or Proposition 36 probation.
Just as patients are prohibited from doctor shopping, doctors are prohibited from writing prescriptions without a legitimate medical purpose.
The idea is that physicians should not act like drug dealers and "divert" controlled substances to illegitimate uses. Law enforcement can come down hard in these cases. The Los Angeles District Attorney's Office recently convicted a doctor who was among the largest prescriber of certain medications in the country.7
California Health & Safety Code Section 11153 hs deals with this issue.8 According to the statute, a doctor cannot issue a prescription
- outside the usual course of the doctor's practice
- for a medical purpose that is not legitimate9
- including to an addict outside of professional treatment
Good faith defense
Section 11153 hs is not designed to thwart legitimate prescriptions by doctors. A physician can still prescribe medications in the usual course of the doctor's professional practice for legitimate medical purposes. The doctor will be ok so long as he or she acts in good faith in writing the prescription.10
If the doctor acts in good faith he or she will have a valid legal defense...even if the doctor made an incorrect diagnosis, or if the doctor's prescription writing was negligent or if the doctor's manner of practice differs from that of other doctors.11
Example: Doctor Highman is a Los Angeles physician. He is working at an urgent care facility when Andrea comes in. She complains of back pain caused by an auto accident, as well as a stressful desk job. Doctor Highman carefully takes an oral history and makes a physical examination of Andrea. He determines that her pain is caused by a legitimate medical condition associated with orthopedic issues. Andrea explains that her son will be having a birthday party that weekend and she needs help making it through...what with a flurry of rowdy 10-year-olds overrunning her home. Doctor Highman asks Andrea if she's already taking pain meds and Andrea convincingly says no...only advil and tylenol. Doctor Highman believes Andrea is in pain and not an addict and gives Andrea a prescription for a week's worth of hydrocodone. He recommends that she follow-up with a back doctor.
It does not appear that Doctor Highman has unlawfully written a prescription. He conducted an examination of Andrea and made a good faith diagnosis consistent with pain. The prescription for hydrocodone is for a legitimate medical purpose.
Change the facts: Word on the Los Angeles streets is that Doctor Highman is "Dr. High." Andrea hears about Dr. High on an internet chat room and tracks him down at his clinic. Andrea waits several hours to see Dr. High, as a long line of people file in and out of the office. Once Andrea makes it to the consultation room, there is no examination whatsoever. Doctor Highman simply asks her what she needs. Andrea says she needs something to "take the edge off" and Dr. High nods. He jots a few notes on an index card and writes a script for 90 hydrocodone pills. He tells Andrea to "be sure to come back" if the problem persists.
Doctor Highman may well have unlawfully written a prescription. He did not examine Andrea or take a medical history. He did not ask Andrea about any specifics related to diagnosis or treatment. There was no apparent legitimate medical purpose underlying the prescription.12
Possible entrapment defense
Sometimes narcotics cases involve sting operations where cops pretend they are patients in order to get medicine in order to "get" the doctor.
Let's say in the above example that one of the patients sitting next to Andrea in "Dr. High's" waiting room is an LAPD undercover narcotics detective calling himself Jimbo.
Jimbo has been conducting surveillance of Doctor Highman and is onto his prescription activity. Jimbo's appointment goes almost exactly like Andrea's...and leads to prosecution of Doctor Highman on charges of unlawfully writing a prescription.
There may be an entrapment defense here, if it can be shown that Doctor Highman's illegal conduct was actually planted in the doctor's mind by Jimbo. Doctor Highman may well have difficulty succeeding with this defense under these circumstances, but the possibility of such a defense exists in "covert operations" cases.
We discuss the concept of entrapment in our related article California rules of entrapment.13
The penalties for doctor shopping and prescription fraud in California are serious
Health & Safety Code 11173 and 11153 hs are wobblers, which means that they can be treated as felonies or misdemeanors. If you are convicted of Section 11173 doctor shopping you could potentially be sent to California State Prison for up to three years, or to county jail for a period not exceeding one year.14
Violation of Section 11153 relating to doctor conduct is punishable by
- state prison or county jail for not more than a year,
- a fine not exceeding $20,00015
These statutes are not mentioned in the Penal Code 1000 pc drug diversion statute or the PC 1210 Proposition 36 probation statute. This means that they are likely ineligible for the more rehabilitation-oriented punishments provided for by those laws.
One can always make a case for leniency and treatment, but so far courts have strictly construed those statutes as applying only to specified offences.16
Our California Criminal Defense Lawyers Can Help...
If you have been accused of doctor shopping, unlawfully prescribing medicine or another prescription fraud offense, we invite you to contact our California Criminal Defense Lawyers to discuss your case.
If you have questions about related laws in Nevada, please visit our related article at Nevada doctor shopping and prescription fraud laws.
These cases have so much at stake...they call more than ever for guidance by a seasoned narcotics attorney.
1Our California Criminal Defense Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
2See Amy Cadwell, In the War on Prescription Drug Abuse, E-Pharmacies are Making Doctor Shopping Irrelevant, 7 Hous. J. Health L. & Policy 85 (2007) ("The goal in doctor shopping is to obtain the maximum amount of pills without the medical community becoming wise to the scheme." Id at 90). See also U.S. Department of Justice, Office of Community Oriented Policing Services, Prescription Fraud, by Julie Wartell and Nancy G. La Vigne, Updated July 2006. ("Those who doctor shop often go to multiple doctors, emergency rooms, and pharmacies and feign symptoms or gain sympathy to obtain prescriptions. Common feigned ailments include migraine headaches, toothaches, cancer, psychiatric disorders, and attention deficit disorder. In addition, offenders may deliberately injure themselves to get a prescription from an emergency room. Another approach is to claim to be from out of town and to have forgotten to pack prescription drugs, or to claim to have lost the drugs from a legitimate prescription.") See also California Attorney General's Office News Release, April 6, 2010 ("Prescription-drug abuse is a growing problem. Brown's office has investigated and filed charges in more than 200 cases-both against physicians who have abused their trust and against patients who go from doctor to doctor in search of drugs.") Note that California has a prescription monitoring system called Controlled Substance Utilization Review and Evaluations System (or CURES) to track prescriptions in an effort to combat doctor shopping and fraud. See also http://www.drug-addiction.com/doctor_shopping.htm, and, for a discussion of prescription drug abuse generally, see Beth Finnerty, UCLA Integrated Substance Abuse Programs, Abuse of Prescription Drugs: Prevalence, Consequences and Indications (2005).
3California Health & Safety Code Section 11173. "((a) No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact. (b) No person shall make a false statement in any prescription, order, report, or record, required by this division. (c) No person shall, for the purpose of obtaining controlled substances, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician's assistant, or other authorized person. (d) No person shall affix any false or forged label to a package or receptacle containing controlled substances.") The comparable federal law is 21 U.S.C. Section 843(a)(3), which makes it unlawful for a person "to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge."
4The penalty statute for the doctor shopping and prescription by fraud statute is Section 111371.1, cited in footnote 13 below. This statute adds the qualification that violation of the statute must be done "knowingly."
5Related California statutes dealing with prescriptions are California Health & Safety Code Section 11157 - issuing a false prescription ("No person shall issue a prescription that is false or fictitious in any respect"); California Health & Safety Code Section 11172 - changing the date of a prescription ("No person shall antedate or postdate a prescription"); California Health & Safety Code Section 11174 - using false name in obtaining a prescription ("No person shall, in connection with the prescribing, furnishing, administering, or dispensing of a controlled substance, give a false name or false address"); California Health & Safety Code Section 11175 - obtaining a non-complying prescription ("No person shall obtain or possess a prescription that does not comply with this division, nor shall any person obtain a controlled substance by means of a prescription which does not comply with this division or possess a controlled substance obtained by such a prescription"); California Health & Safety Code Section 11368 - forgery of a prescription ("Every person who forges or alters a prescription or who issues or utters an altered prescription, or who issues or utters a prescription bearing a forged or fictitious signature for any narcotic drug, or who obtains any narcotic drug by any forged, fictitious, or altered prescription, or who has in possession any narcotic drug secured by a forged, fictitious, or altered prescription, shall be punished by imprisonment in the county jail for not less than six months nor more than one year, or in the state prison"); and California Business & Professions Code Section 4060 - possession of controlled substance ("No person shall possess any controlled substance, except that furnished to a person upon the prescription of a physician, dentist, podiatrist, optometrist, veterinarian, or naturopathic doctor.... This section shall not apply to the possession of any controlled substance by a manufacturer, wholesaler, pharmacy, pharmacist, physician, podiatrist, dentist, optometrist, veterinarian, naturopathic doctor, certified nurse-midwife, nurse practitioner, or physician assistant, when in stock in containers correctly labeled with the name and address of the supplier or producer. Nothing in this section authorizes a certified nurse-midwife, a nurse practitioner, a physician assistant, or a naturopathic doctor, to order his or her own stock of dangerous drugs and devices.") See also People v. Kennedy (2001) 91 Cal.App.4th 288 [simple possession of valium punishable as misdemeanor under BP Section 4060] and People v. Oviedo (1951) 106 C.A.2d 690 [use of false name by patient in connection with prescription]
6California Health & Safety Code Section 11007 ("Controlled substance," unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.") See also federal Controlled Substances Act of 1970, 21 U.S.C. 801 et seq.
7Federal drug charges were just brought against a West Hollywood, California psychiatrist who allegedly ran a "pill mill" involving addictive prescription drugs. See also Bureau of Narcotic Enforcement Diversion Program webpage.
8California Health & Safety Code Section 11153 "((a) A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. Except as authorized by this division, the following are not legal prescriptions: (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled substances, which is issued not in the course of professional treatment or as part of an authorized narcotic treatment program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use. (b) Any person who knowingly violates this section shall be punished by imprisonment in the state prison or in the county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both a fine and imprisonment. (c) No provision of the amendments to this section enacted during the second year of the 1981-82 Regular Session shall be construed as expanding the scope of practice of a pharmacist.") See California Health & Safety Code Section 11150, for who can write prescriptions. For additional laws targeting pharmacies, see California Business & Professions Code Section 4000 et seq. See also People v. Gandotra (1992) 11 C.A.4th 1355 [doctor liable for aiding and abetting unlicensed assistant in violating Section 11153] and Vermont & 110th Medical Arts Pharmacy v. Board of Pharmacy (1981) 125 Cal.App.3d 19 [statutory scheme requires pharmacists to use common sense and professional judgment in filling prescriptions]
9See also California Health & Safety Code Section 11154 - prescribing to person not under treatment ("(a) Except in the regular practice of his or her profession, no person shall knowingly prescribe, administer, dispense, or furnish a controlled substance to or for any person or animal which is not under his or her treatment for a pathology or condition other than addiction to a controlled substance, except as provided in this division. (b) No person shall knowingly solicit, direct, induce, aid, or encourage a practitioner authorized to write a prescription to unlawfully prescribe, administer, dispense, or furnish a controlled substance.")
10See California Health & Safety Code Section 111210. ("The physician...shall prescribe, furnish, or administer controlled substances only when in good faith he or she believes the disease, ailment, injury, or infirmity requires the treatment....[and] only in the quantity and for the length of time as are reasonably necessary." See B.E. Witkin & Norman Epstein, California Criminal Law (3rd 200) Vol. 2 (Crimes Against Public Peace and Welfare) � 119. See also People v. Lonergan (1990) 219 Cal.App.3d 82 ("Good faith is the state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation...It is the opposite of fraud and bad faith" internal quotes omitted, but quoting People v. Nunn (1956) 46 Cal.2d 460 and People v. Bowman (1958) 156 Cal.App.2d 784)
11See People v. Lonergan, infra, 219 Cal.App.3d 82.
12See People v. Demery (1980) 104 Cal.App.3d 548 regarding use of expert testimony in establishing minimal standard of practice in medical community ("[Expert witness] declared that he was familiar with the standard of practice in the medical community; that a minimal standard involved communication with the patient concerning physical complaints, an attempt to find the cause of the symptoms by taking a medical history, and a physical examination directed toward finding a cause for the symptoms and ruling out contraindications for the use of certain drugs.")
13Narcotics cases also present issues in regard to search and seizure of evidence in light of Fourth Amendment constitutional rights.
14California Health & Safety Code Section 11371.1 ("Any person who shall knowingly violate any of the provisions of Section 11173 or 11174 with respect to (1) a controlled substance specified in subdivision (b), (c), or (d) of Section 11055, or (2) a controlled substance specified in paragraph (1) of subdivision (b) of Section 11056, or (3) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V, or who in any voluntary manner solicits, induces, encourages or intimidates any minor with the intent that such minor shall commit any such offense, shall be punished by imprisonment in the state prison, or in a county jail not exceeding one year.")
15See footnote 8, infra. See also California Health & Safety Code Section 11371 "(Any person who shall knowingly violate any of the provisions of Section 11153, 11154, 11155, or 11156 with respect to (1) a controlled substance specified in subdivision (b), (c), or (d) of Section 11055, or (2) a controlled substance specified in paragraph (1) of subdivision (b) of Section 11056, or (3) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V, or who in any voluntary manner solicits, induces, encourages or intimidates any minor with the intent that such minor shall commit any such offense, shall be punished by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both such fine and imprisonment."
16See People v. Koester (1975) 53 C.A.3d 631 [strictly construing diversion statute in context of Section 11368] and People v. Wheeler (2005) 127 Cal.App.4th 873 [strictly construing Prop 36 in context of Section 11368]. But see Laurie Levenson and Alex Ricciardulli, California Criminal Law (2008-2009 Ed.) �11:20 (Prescription offenses) ("These offenses are ripe for diversion and deferred entry of judgment, even though they are not included in the letter of the diversion statute.") See also Dana Grimes, "Prescription Drugs: Criminal Side Effects" in Trial Bar News (2009) [noting a "harsh aspect" of charging similar conduct under different statutes is that certain Section 11368 defendants can get diversion while Section 11173 defendants can not and further noting that "There is case law to support the proposition that prosecution under a general statute may be barred when the facts of the alleged offense parallel the act prohibited by a special statute."]