Law enforcement is cracking down on prescription pill abuse in Nevada.
We represent doctors and patients accused of prescription fraud and doctor shopping in the state of Nevada. Our Las Vegas NV Criminal Defense Lawyers1 bring decades of experience to your case.
This article provides an introduction to Nevada's doctor shopping and unlawful prescription statutes. The applicable statutes are NRS 453.391(2) and NRS 453.381(1).
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Nevada's legal definition of "doctor shopping" is using more than one provider and pharmacy to get prescriptions for controlled substances, without the providers and pharmacies knowing about the other prescriptions.
The Las Vegas Sun recently did a study on prescription pill use in Nevada. According to the Sun investigation, Nevadans took more hydrocodone pills per person in 2006 than people of any other state. The report also found that more people in Clark County die from prescription narcotics overdoses than from overdoses of illicit drugs or vehicle accidents.
Doctor shopping made headlines several years ago when talk-radio host Rush Limbaugh turned himself into authorities on prescription-pill related charges. Celebrity deaths like that of actor Cory Haim also have been linked to prescription pills.
Let's look at an example:2
Example: A few years ago, Jessica sustained a back injury when she fell during a circus performance. Now she suffers from moderate to severe back pain. Her regular doctor prescribed hydrocodone and vicodin for a year and then stopped. He told Jessica to see a pain specialist, which she did without success. The pain persists and, knowing her regular doctor won't write scripts for pain meds, for the past year Jessica has visited eight doctors at different clinics and facilities around Las Vegas. She does not tell the new doctors about the other medicines or doctor visits, even when they ask her. Jessica fills the prescriptions at different pharmacies. Jessica is engaging in doctor shopping. She is trying to get as many painkillers as possible without any one provider knowing the whole story.
We can see from Jessica's case that doctor shopping cases can be very sad. They involve quite "normal" people who are just caught up in a bad situation. For one thing they suffer from real pain and for another thing they may have gotten addicted to pills in the first place because of negligent physician conduct.
Doctor shopping can involve any of a number of controlled substances, including:
- opiates (Morphine, Oxycodone, Hydrocodone, etc.)
- stimulants (Ritalin, Adderall, etc.)
- depressants (Valium, Ambien, Xanax, etc.)3
Nevada's doctor shopping statute is Nevada Revised Statutes Section 453.391.4 Subsection 2 of NRS 453.391 prohibits someone
- from knowingly obtaining a prescription from a new practitioner
- while being treated and supplied with a prescription from another practitioner
- without disclosing this to the new practitioner
NRS 453.391 applies when the practitioner5 supplies the controlled substance directly (i.e., a bottle of Xanax) and when the practitioner writes a prescription for the substance (i.e., a prescription for Xanax).
Possible Oversight Defense
NRS 453.391 requires that a person "knowingly" obtain prescriptions from different doctors without telling them about each other. It is possible that someone may have a defense if they are just forgetful. They simply went to more than one doctor but forgot to tell the other doctors about the other practitioners and medicines.6
Just as patients cannot shop around for doctors to prescribe drugs, doctors cannot irresponsibly dispense drugs to patients. The government does not want doctors to act like drug dealers and "divert" controlled substances to illegitimate uses.
Nevada Revised Statutes Section 453.381(1)7 provides that a doctor may only prescribe
- a controlled substance
- for a legitimate medical purpose
- in the usual course of his or her professional practice8
Legitimate medical purpose
NRS 453.381 is not designed to stop doctors from writing legitimate prescriptions. A doctor can still issue prescriptions for medical treatment for a legitimate medical purpose in the usual course of the doctor's professional practice.9
Let's look at an example:
Example: Doctor Yam is a Nevada doctor. He is pulling a shift at a Las Vegas clinic when Jessica comes in. Jessica complains of back pain caused by a fall off the high wire at a local casino show. Doctor Yam carefully takes an oral history and makes a physical examination of Jessica. The doctor decides that Jessica's pain is caused by a legitimate medical condition relating to orthopedic issues. Jessica says she is about to start a new rehab regime, but she is experiencing particularly acute pain right now. She asks for some pain medicine to help while she tries the rehab. Doctor Yam asks Jessica if she's already taking pain meds and Jessica convincingly says no, only Advil. Doctor Yam believes Jessica is in pain and gives her a prescription for a week's worth of hydrocodone. He wishes her luck on the new rehab regime and recommends that she follow-up with a back specialist. It does not appear that Doctor Yam has unlawfully written a prescription. He conducted an examination of Jessica 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 street is that Doctor Yam is "Dr. Yum." Jessica hears about Dr. Yum from friends and tracks him down at a clinic. Jessica waits many hours to see Dr. Yum, as a long line of people file in and out of the clinic. Then, once Jessica is finally in the consultation room, there is no exam at all. Doctor Yam just asks Jessica what she wants. Jessica says she needs something to "take the edge off" and Dr. Yam nods and jots a few notes on an index card. He writes a script for 90 hydrocodone pills and tells Jessica to "come back soon" if the problem persists. Doctor Yam may well have unlawfully written a prescription. He did not examine Jessica or take a medical history. He did not ask Jessica about any specifics related to diagnosis or treatment. There was no apparent legitimate medical purpose underlying the prescription.10
Possible entrapment defense
Narcotics cases can sometimes involve covert operations where undercover officers pretend they are patients in order to get prescriptions to "get" the doctor.
Let's say in the above example that one of the patients sitting next to Jessica in the clinic is an undercover detective calling himself Sammy.
Sammy has been conducting surveillance of Doctor Yam and his prescribing habits. Sammy's appointment goes almost exactly like Jessica's and leads to prosecution of Doctor Yam for unlawfully writing a prescription.
The police conduct here may run afoul of Nevada entrapment law, if it can be shown that Doctor Yam's illegal conduct was actually planted in the doctor's mind by Sammy.
Doctor Yam may well have difficulty succeeding with this defense, especially given Nevada's limited acceptance of the entrapment concept but the possibility of such a defense exists in covert operations cases.11
It is a felony to violate Nevada's doctor shopping and unlawful prescription laws. Violation can result in prison time, and in some cases, treatment or probation.
Violation of NRS 453.391 and NRS 453.381 are Nevada category C felonies.12 They are punished by state prison time for between one and five years. A court may also impose a fine of up to $10,000.
However, if the defendant is adjudged to be a "drug addict" within the meaning of Nevada's drug court laws, then the defendant might be eligible for a deferred sentence and substance abuse treatment.13
Our Nevada Criminal Defense Lawyers Can Help.
If you have been accused of doctor shopping, unlawfully prescribing medicine or another narcotics-related offense, we invite you to contact our Las Vegas Criminal Defense Lawyers at 702-DEFENSE (702-333-3673) to discuss your case.
If you have questions about doctor shopping in California, please visit our related article on California Doctor Shopping Laws.
1Our Nevada Criminal Defense Lawyers have local offices in Las Vegas and Reno.
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 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).
4Nevada Revised Statutes Section 453.391 ("A person shall not: 1. Unlawfully take, obtain or attempt to take or obtain a controlled substance or a prescription for a controlled substance from a manufacturer, wholesaler, pharmacist, physician, physician assistant, dentist, advanced practitioner of nursing, veterinarian or any other person authorized to administer, dispense or possess controlled substances. 2. While undergoing treatment and being supplied with any controlled substance or a prescription for any controlled substance from one practitioner, knowingly obtain any controlled substance or a prescription for a controlled substance from another practitioner without disclosing this fact to the second practitioner.")
5For definition of practitioner, see Nevada Revised Statutes Section 453.126 "Practitioner" defined. ("Practitioner" means: 1. A physician, dentist, veterinarian or podiatric physician who holds a license to practice his or her profession in this State and is registered pursuant to this chapter. 2. An advanced practitioner of nursing who holds a certificate from the State Board of Nursing and a certificate from the State Board of Pharmacy authorizing him or her to dispense or to prescribe and dispense controlled substances. 3. A scientific investigator or a pharmacy, hospital or other institution licensed, registered or otherwise authorized in this State to distribute, dispense, conduct research with respect to, to administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research. 4. A euthanasia technician who is licensed by the Nevada State Board of Veterinary Medical Examiners and registered pursuant to this chapter, while he or she possesses or administers sodium pentobarbital pursuant to his or her license and registration. 5. A physician assistant who: (a) Holds a license from the Board of Medical Examiners; and (b) Is authorized by the Board to possess, administer, prescribe or dispense controlled substances under the supervision of a physician as required by chapter 630 of NRS. 6. A physician assistant who: (a) Holds a license from the State Board of Osteopathic Medicine; and (b) Is authorized by the Board to possess, administer, prescribe or dispense controlled substances under the supervision of an osteopathic physician as required by chapter 633 of NRS. 7. An optometrist who is certified by the Nevada State Board of Optometry to prescribe and administer therapeutic pharmaceutical agents pursuant to NRS 636.288, when the optometrist prescribes or administers therapeutic pharmaceutical agents within the scope of his or her certification.")
6Note that this defense did not work in one Churchill County, Nevada case. See Brinkley v. State of Nevada (1985) 101 Nev. 676 [subsequent bad act of prescription forgery admitted in trial for doctor shopping in order to show common plan or scheme and negate innocent mistake claim]
7Nevada Revised Statutes Section 453.381 "(1. In addition to the limitations imposed by NRS 453.256 and 453.3611 to 453.3648, inclusive, a physician, physician assistant, dentist, advanced practitioner of nursing or podiatric physician may prescribe or administer controlled substances only for a legitimate medical purpose and in the usual course of his or her professional practice, and he or she shall not prescribe, administer or dispense a controlled substance listed in schedule II for himself or herself, his or her spouse or his or her children except in cases of emergency. 2. A veterinarian, in the course of his or her professional practice only, and not for use by a human being, may prescribe, possess and administer controlled substances, and the veterinarian may cause them to be administered by a veterinary technician under the direction and supervision of the veterinarian. 3. A euthanasia technician, within the scope of his or her license, and not for use by a human being, may possess and administer sodium pentobarbital. 4. A pharmacist shall not fill an order which purports to be a prescription if the pharmacist has reason to believe that it was not issued in the usual course of the professional practice of a physician, physician assistant, dentist, advanced practitioner of nursing, podiatric physician or veterinarian. 5. Any person who has obtained from a physician, physician assistant, dentist, advanced practitioner of nursing, podiatric physician or veterinarian any controlled substance for administration to a patient during the absence of the physician, physician assistant, dentist, advanced practitioner of nursing, podiatric physician or veterinarian shall return to him or her any unused portion of the substance when it is no longer required by the patient. 6. A manufacturer, wholesale supplier or other person legally able to furnish or sell any controlled substance listed in schedule II shall not provide samples of such a controlled substance to registrants. 7. A salesperson of any manufacturer or wholesaler of pharmaceuticals shall not possess, transport or furnish any controlled substance listed in schedule II. 8. A person shall not dispense a controlled substance in violation of a regulation adopted by the Board.")
8For obligation to obtain a patient utilization report from a prescription monitoring system database, see Nevada Revised Statutes Section 639.23507 Patient utilization report required before writing prescription for controlled substance. ("A practitioner shall, before writing a prescription for a controlled substance listed in schedule II, III or IV for a patient, obtain a patient utilization report regarding the patient for the preceding 12 months from the computerized program established by the Board and the Investigation Division of the Department of Public Safety pursuant to NRS 453.1545 if the practitioner has a reasonable belief that the patient may be seeking the controlled substance, in whole or in part, for any reason other than the treatment of an existing medical condition and: 1. The patient is a new patient of the practitioner; or 2. The patient has not received any prescription for a controlled substance from the practitioner in the preceding 12 months.practitioner shall review the patient utilization report to assess whether the prescription for the controlled substance is medically necessary.")
9See also Nevada Revised Statutes Section 453.256(5) and (7). Prescriptions; requirements for dispensing certain substances; penalty. ("5. A practitioner may dispense or deliver a controlled substance to or for a person or animal only for medical treatment or authorized research in the ordinary course of his or her profession. 7. An individual practitioner may not dispense a substance included in schedule II, III or IV for the practitioner's own personal use except in a medical emergency.") Violation of this statute is a category E felony, punished by prison time and possibly a fine but available for suspended sentence in accordance with Nevada Revised Statutes Section 176A.100.
10Other statutes deal with pharmacists. However, according to a recent Nevada Supreme Court decision, pharmacies owe no duty to unidentifiable third parties. See Sanchez v. Wal-Mart Stores (2009) 221 P.3d 1276 [case for wrongful death of motorist killed by woman driving under influence of controlled substances where woman had been flagged by state board for having obtained approximately 4,500 hydrocodone pills from 13 different pharmacies]
11See Foster v. State, 116 Nev. 1088 (2000) ("Therefore, we hold that when a defendant raises the entrapment defense at trial, evidence of a prior crime may be admitted to show that the defendant was predisposed to commit the instant offense where: (1) the other crime is of a similar character to the offense on which the defendant is being tried; (2) the other crime is not too remote in time from the offense charged; and (3) the probative value of the other crime is not substantially outweighed by the danger of unfair prejudice.") Narcotics cases also present issues in regard to search and seizure of evidence in light of Fourth Amendment constitutional rights.
12Nevada Revised Statutes Section 453.421 Penalty for violation of 453.371 to 453.391, inclusive. ("A person who violates any provision of NRS 453.371 to 453.391, inclusive, is guilty of a category C felony and shall be punished as provided in NRS 193.130." NRS 193.130(c) specifies the punishment for a category C felony (" (c) A category C felony is a felony for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 5 years. In addition to any other penalty, the court may impose a fine of not more than $10,000, unless a greater fine is authorized or required by statute.")
13Nevada Revised Statutes Section 458.300 Eligibility for assignment to program of treatment. ("Subject to the provisions of NRS 458.290 to 458.350, inclusive, an alcoholic or a drug addict who has been convicted of a crime is eligible to elect to be assigned by the court to a program of treatment for the abuse of alcohol or drugs pursuant to NRS 453.580 before he or she is sentenced unless: 1. The crime is: (a) A crime against the person punishable as a felony or gross misdemeanor as provided in chapter 200 of NRS; (b) A crime against a child as defined in NRS 179D.0357; (c) A sexual offense as defined in NRS 179D.097; or (d) An act which constitutes domestic violence as set forth in NRS 33.018; 2. The crime is that of trafficking of a controlled substance; 3. The crime is a violation of NRS 484C.110, 484C.120, 484C.130 or 484C.430; 4. The alcoholic or drug addict has a record of two or more convictions of a crime described in subsection 1 or 2, a similar crime in violation of the laws of another state, or of three or more convictions of any felony; 5. Other criminal proceedings alleging commission of a felony are pending against the alcoholic or drug addict; 6. The alcoholic or drug addict is on probation or parole and the appropriate parole or probation authority does not consent to the election; or 7. The alcoholic or drug addict elected and was admitted, pursuant to NRS 458.290 to 458.350, inclusive, to a program of treatment not more than twice within the preceding 5 years.") See also Brinkley v. State of Nevada, infra, 101 Nev. 676 [doctor shopping defendant eligible for hearing to determine if he was a drug addict].