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prescriptions for various controlled substances after his DEA license was revoked.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
213-233-2260
Email: tgreen@greenassoc.com
