On August 12, 2013, a Los Angeles doctor, James William Eisenberg (age 72), pleaded guilty before United States District Judge Michael W. Fitzgerald to one count of distribution of hydrocodone (Vicodin and Norco) in violation of 21 U.S.C. Section 841 for writing hundreds of prescriptions for various controlled substances after his DEA license was revoked. As part of the plea, Dr. Eisenberg has agreed to surrender his medical license. This surrender agreement is becoming more common as part of plea agreements in the Central District of California.
Dr. Eisenberg’s problems arose in December 2011 when his DEA license was suspended while he was working in Arizona. In July 2012, a DEA administrative judge determined that Dr. Eisenberg acted as a “drug dealer” and issued an order permanently revoking his DEA registration. The orders issued by the administrative judge were based on findings that Dr. Eisenberg, who at the time was working out of a “medical marijuana” club in Arizona, “lacked a legitimate medical purpose and acted outside of the usual course of professional practice” when he wrote prescriptions for OxyContin and Xanax in exchange for $150 cash payments. The DEA judge also found that Dr. Eisenberg wrote “medical marijuana” recommendations to undercover officers posing as patients, and that Eisenberg prescribed OxyContin to one of the undercover agents “before [Eisenberg] had even performed a physical examination.”
DEA investigators later learned that Eisenberg continued to prescribe controlled substances, including hydrocodone, in violation of the DEA’s orders. A review of a California Department of Justice database that tracks prescriptions showed that, following the suspension of Dr. Eisenberg’s registration number, patients filled more than 1,700 of his prescriptions for controlled substances, including more than 1,200 prescriptions for hydrocodone.
DEA investigators executed a federal search warrant on one of Dr. Eisenberg’s West Hollywood offices on February 19, 2013. The affidavit in support of the search warrant shows that the government used surveillance and undercover operations to gather evidence on whether Dr. Eisenberg continued to write prescriptions for controlled substances in violation of the DEA’s revocation order. The evidence included an operation in which an undercover agent, posing as a patient, obtained a prescription from Eisenberg for hydrocodone and alprazolam (Xanax). Dr. Eisenberg was indicted on May 10, 2013.
Dr. Eisenberg is scheduled to be sentenced on December 9, 2013. The statutory maximum in this case is 10 years in federal prison but it is not expected that the sentence would be that high. The plea agreement has an agreed base offense level of 18 for the drugs prescribed and the U.S. Attorney’s Office will seek a 2-level enhancement for abuse of position of trust under USSG Section 3B1.3. Dr. Eisenberg will also receive a 2 or 3-level reduction for acceptance of responsibility.
Without considering any other factors, this places him in the rough range of 24-33 months of custody under the guidelines which are not binding on the judge. Sentencing in federal cases is akin to a bench trial and there are many factors and considerations that come into play in determining the sentence. Dr. Eisenberg’s age and health may be a factor as well.
In our practice we often see that is the older physicians or ones who have had personal problems that end up with these issues and there are often mitigating factors and circumstances that can be raised at sentencing. However, it would be preferable if health care professionals realize the huge risks they are undertaking in today's world when they work at clinics where they write prescriptions without medical necessity or where other statutes and regulations are violated. I cannot imagine that this physician ever thought he would be charged as if he were a drug dealer and that this is how his career would end. It is quite tragic but hopefully others can learn from his case.
Posted by Tracy Green
Green and Associates, Attorneys at Law