textfiles/law/4pusherp10.law

October 1991                                                     

                                                                  
                     THE RESPECTABLE PUSHER                          

                               By

                        Jeffrey D. Lane                                 
           Agent serving as Director of Investigations
                Georgia Examining Boards Division
                Office of the Secretary of State
                        Atlanta, Georgia

                                                                  
     In November 1989, children playing in a wooded area behind
their apartment complex discovered a partially decomposed body.
Although an autopsy revealed that the person died of
hypothermia, a contributing factor to the death was an overdose
of drugs.

     After a search warrant was issued, investigators found
numerous empty bottles of prescription drugs from surrounding
pharmacies in the victim's apartment.  These labels revealed
that the deceased had received drugs from the same doctor on a
regular basis over an extended period of time, which most likely
resulted in addiction.

     Did the doctor prescribing the drugs contribute to this
persons death?  Were any criminal statutes violated in this
case?  Was this doctor a "pusher" or a "healer"?

     This article discusses how Federal statutes apply to
medical practitioners when they prescribe controlled substances.
It also offers an overview of how law enforcement personnel
should conduct investigations concerning unscrupulous medical
practitioners who illegally dispense prescription drugs.

FEDERAL STATUTES

     Medical practitioners are licensed by the States in which
they practice, and in order to prescribe controlled substances
lawfully, they must also be registered with the Drug Enforcement
Administration.  According to Federal statutes, practitioners
must issue prescriptions in the usual course of a professional
practice, and these prescriptions must be issued for a
legitimate medical purpose. (1)

     When patients come to them with medical problems,
physicians must determine whether controlled substances are
necessary to treat the problem.  However, to show that
prescribing the drugs was in the course of professional
practice, it is essential that physicians establish a
doctor/patient relationship. (2)  In order to establish this
type of relationship, three criteria must be met:

     *  The patient must desire treatment for a legitimate
        illness or condition,

     *  The physician must make a reasonable effort to determine
        what the patient's legitimate medical needs are through
        physical examinations and questioning the  patient about
        medical problems,

     *  There must be reasonable correlations between the 
        drugs prescribed and the patients legitimate medical
        needs.  (3)

INVESTIGATION OF PRESCRIPTION ABUSE CASES                         

     When abuse is suspected, there are two basic methods of
investigation--undercover operations and documentary
investigations (commonly referred to as "paper cases").  Both
methods work, but investigators should not opt for one method
over another without considering the circumstances surrounding
the case.  Therefore, it is necessary to conduct preliminary
investigations before deciding which method to use.

Preliminary Investigation

     During the preliminary investigation of suspected
offenders, officers should determine what specific drugs the
doctor is prescribing, the patient traffic patterns in and out
of the medical office, whether the doctor conducts physical
examinations, the frequency and quantity of drugs prescribed,
and whether the doctor accepts new patients.  This information,
which is invaluable when investigators try to develop a
believable undercover scenario or decide what areas to target
for pharmacy surveys, can come from several sources, including
other practitioners, pharmacists, family members of patients,
informants/defendants, wholesalers/distributors, other law
enforcement/regulatory agencies, surveillance of suspect, and
reference materials and texts.

     Interviews with persons listed above can provide details
concerning what specific drugs were prescribed and ordered,
current investigations, practitioner history, required
examinations, and the cost of a prescription for undercover
purposes.  Surveillance helps to determine patient traffic
patterns, number of out-of-State patients, parking lot
transactions, and the type of patient clientele.  Reference
materials help to identify drugs and determine their legitimate
uses and abuse potential.

     The information developed during the preliminary
investigation helps investigators to determine if further
investigation is warranted, to plan successful undercover
operations, and to decide what undercover scenarios might be
most effective.  Any undercover operation should precede the
documentary investigation, because interviews and subpoenas may
alert the doctor to the fact that there is an ongoing
investigation.

Undercover Operation                                              

     Before undertaking an undercover operation, it is important
to consult with the local prosecutor to clarify any legal
questions concerning the operation.  Once this has been done,
and all the legal issues have been addressed, planning for the
undercover office visit can continue.  The undercover scenario
must be plausible or the operative will be told to leave the
office.  Also important to a successful undercover operation is
that the operative not give a legitimate medical need for the
drugs that are prescribed.

     The purpose of the initial undercover operation is
threefold:  To obtain evidence, to gather information for future
undercover visits, and to determine whether to continue the
investigation.  During the initial undercover visit,
investigators should determine whether examinations are given,
the kind of questions asked by the doctor, and whether the
physician tries to establish a doctor/patient relationship.  A
minimum of two people is necessary to conduct this visit to the
physician's office.  (One to act as a patient; the other to
monitor any recording equipment and to serve as backup.)

     Recording undercover visits provides the best evidence,
because taped conversations reveal that the doctor knows that
the drugs being prescribed are not for legitimate purposes.
Also, if the physician requires the "patient" to state a
legitimate reason for needing drugs, the investigator can direct
the conversation to show that the physician is merely trying to
appear legitimate.  For example, if the doctor requests that the
undercover officer write a legitimate reason for the drugs on a
patient information form, the officer should respond by asking
what, exactly, should be written.

     Also, some physicians, after writing a prescription,
instruct patients to go to a particular pharmacy to have it
filled or to fill it in another area of town to avoid
suspicions.  These types of interchange are an indication of the
lack of a legitimate doctor/patient relationship, and having
these conversations recorded strengthens the case against the
physician.

     Once a physician issues an illegal prescription to one
operative, other undercover investigators should make
appointments with the same physician.  However, too many new
"patients" may arouse suspicion.  Doctors who operate illegally
will be wary of undercover operatives and may attempt to weed
them out by questions and examinations.  Several operatives who
make a minimum of two to three successful visits each will show
an abusive practice, establish multiple counts, and corroborate
that the physician is dispensing drugs indiscriminately.

     If no drugs are prescribed illegally during the initial
undercover visit, a second operative should visit the physician.
This operative should be different in gender from the first, and
a different scenario might also be used.  If the physician fails
to prescribe drugs illegally during this visit, officers should
end the undercover operation and begin a documentary
investigation.

     The length of the undercover operation, as well as how soon
the undercover operative can repeat a visit, depends on the type
of drugs the operative receives.  The information gathered
during the preliminary investigation will help investigators
make a decision on how frequent the visits should be.  For
example, if the doctor is running a "diet" practice and
prescribes amphetamines, the operative may only be able to go in
once every 30 days, the usual time period diet pills are
prescribed.  Other doctors may give another 30-day supply after
only 2 weeks.

     If, on the other hand, the physician prescribes pain pills,
the undercover operative may be able to go in more often.  This
type of medication is prescribed more frequently than diet pills
or sleeping pills.

Documentary Investigation

     Officers should pursue a documentary investigation when the
preliminary investigation reveals that there is little chance of
a successful undercover operation, the physician accepts no new
patients, or if the undercover operation fails to produce
evidence of the physician's guilt.  However, even when the
undercover operation does produce evidence, it is still
important to document the investigation with interviews, patient
records, prescriptions, prescription data, and expert witness
reports.

     A documentary investigation is a five-step process, with
each step building upon the preceding step.  For this reason,
investigators should complete the steps in proper sequence.
They should:

     1)  Survey pharmacies within certain geographical
         boundaries to obtain prescription data,

     2)  Organize the prescription data,                           

     3)  Obtain and review patient records,                        

     4)  Interview patients, and                                   

     5)  Obtain expert witness reports/testimony.                  

     Survey area pharmacies                                       

     In order to obtain data and information about a physicians
prescribing patterns, investigators should survey all pharmacies
that are located within an established geographical target area.
Investigators should also review all prescriptions issued by the
physician during a particular time span, such as 1 or 2 years.
Knowing the length of time the doctor has kept certain patients
on addictive medications helps to establish a pattern of abuse.

     Pharmacists can be either of great value or a hindrance to
the investigation.  Their information contains details and
knowledge to which only they are privy.  However, because
pharmacy income is directly tied to the prescriptions from the
doctors in the area, some pharmacists will inform them of
current investigations.  Because the interview of only one
pharmacist has caused some doctors to close their practices
immediately, investigators should weigh this factor heavily when
conducting the investigation.

     Some pharmacists will not allow investigators to review the
prescriptions, making it necessary to obtain subpoenas or search
warrants.  Other pharmacists will provide investigators with
computer printouts of the requested information.  If there is a
problem with a particular pharmacist, the State Medical Board or
Pharmacy Board may be able to assist investigators.

     Investigators should record the information found on the
prescription forms in an organized format for future reference.
Of particular interest are the date the prescription was issued
to the patient, the drug name, drug dosage, total amount
prescribed, and the prescription number.

     Perhaps the most important piece of information found on
the prescription form, aside from the drug and quantity, is the
prescription number.  This is usually a four-to eight-digit
number found either on the container label of the drug or on the
prescription form.  Each prescription has a separate number that
investigators can use to prepare search warrants or identify
particular prescriptions in court.  This number also assists
investigators in finding a specific prescription among
thousands.

     Organize the prescription data

     After investigators contact all the pharmacies in the
target area for prescription information, the data should be
organized to help investigators concentrate on the blatant
cases.  The prescriptions should be put in alphabetical order by
the patient's last name, and then each patient's prescriptions
should be placed in chronological order.  By doing this,
investigators immediately know what drugs each patient received,
the quantity, and how frequently the drug was prescribed.
Organizing the data also reveals dangerous drug combinations and
helps investigators to determine which patients should be
interviewed later.

     Since many "patients" go to numerous pharmacies to avoid
detection, a computerized data base is helpful for recording and
organizing all the data collected.  Once the information is
entered into the data base, it can be sorted in a variety of
ways that will reveal patterns or other clues to investigators.
For example, a profile will show which pharmacy filled the
majority of the prescriptions.  This information is important if
investigators suspect a conspiracy between the doctor and
pharmacist.

     In some cases, the prescription data, coupled with expert
witness testimony, can establish probable cause for a search
warrant to obtain patient records from the physician's office.
If this is not the case, investigators should interview the
doctor's patients to determine whether a doctor/patient
relationship existed.  These interviews, along with the other
information obtained up to this point in the investigation,
should be sufficient to obtain a search warrant.

     Obtain and review patient records

     Investigators should thoroughly review all of the patient
records to pinpoint inconsistencies and document the fact that
the physician prescribed drugs illegally.  For example, a
patient may have been receiving an amphetamine, supposedly to
lose weight.  If, however, this patient had a history of
hypertension, with dangerously high blood pressure recorded on
the day of the doctor's visit, an amphetamine prescription would
be inappropriate because amphetamines tend to further elevate
the blood pressure.  In addition, the patient's recorded height
and weight may show there was not a legitimate need for a diet
medication.

     Patient records that do not document patient histories,
physical exams, laboratory tests, consultations, or referrals
are also an indication that a legitimate doctor/patient
relationship did not exist.  On the other hand, some physicians
keep thorough patient records in order to appear legitimate.
Patient interviews and expert witness reviews help refute this
false documentation.

     Interview patients

     Investigators should interview patients to determine as
much as possible about whether the doctor establishes a
doctor/patient relationship before prescribing drugs.  For
example, one physician assigned six patients per examining room
for cursory examinations, and investigators were later able to
interview these patients to corroborate the lack of a legitimate
doctor/patient relationship.  When witnesses learn that they are
not the focus of the investigation, they will oftentimes
cooperate with investigators.  Investigators can then subpoena
these witnesses to testify at trial.

     Obtain expert witness reports/testimony

     Expert witnesses may include physicians, dentists, medical
school professors, pharmacology professors, or other
professionals who can testify to the proper legal procedures
needed to practice medicine.  These witnesses may give expert
opinions concerning drug tolerance and addiction.  They may
testify about the appropriateness of the time period the drugs
were prescribed and what the law requires with regard to the
usual course of professional practice.

     It is important for investigators to inform expert
witnesses that their review may require them to testify in
court.  If they are not aware of this from the beginning, they
may be hostile or uncooperative on the witness stand.  It is
also important that investigators give expert witnesses copies
of the original records so that important evidence is not
altered in anyway.

     When this last step of the investigation is complete,
investigators should discuss the case with their local
prosecutors.  They can troubleshoot any problems before the
grand jury hears the case and arrest warrants are issued.

CONCLUSION

     Prescription drug abuse is a serious problem that is
sometimes overlooked.  This may be a result of a lack of
interest or a lack of knowledge on the part of investigators,
who are unsure about how to pursue such an investigation.

     However, law enforcement officers must dedicate themselves
to the problem of drug abuse, not only where hard drugs are
concerned but also by keeping legitimate drugs out of the hands
of the "respectable pushers."  By doing this, they will bring to
the forefront a problem that has, in the past, been largely
ignored.


FOOTNOTES

     (1)  21 USC 802, 21 CFR 1306.02 (b).

     (2)  U.S. Drug Enforcement Administration Bulletin issued
by the Associate Chief Counsel, 1987.

     (3)  Supra, note 1.