On May 6, 2009, after a two-week federal jury trial in the Central District of California , Masoud Bamdad, a Los Angeles physician, was convicted by a federal jury of 13 counts of illegal drug distribution by improperly prescribing oxycodone -- the federally controlled synthetic opiate in OxyContin -- without a medical purpose to drug addicted patients (some under the age of 21) and DEA agents.
The jury deadlocked on an allegation that the doctor was responsible for the overdose death of a 23-year-old patient Alex Clyburn, who overdosed on Roxicodone and died at a Pasadena drug treatment facility after taking pills allegedly prescribed to him by Bamdad four days earlier. Jurors told Judge Wu they were deadlocked on the question of whether the Roxicodone in Clyburn's system when he died came from a prescription written by Bamdad. The jury did not adopt the defense that Dr. Bamdad was acting as a compassionate caregiver when he prescribed the drugs to patients who convinced him they were in pain.
Bamdad was sentenced to 300 months (25 years) in prison on the convicted counts. The sentencing was by U.S. District Judge George H. Wu. Dr. Bambad appealed from the conviction and his sentence but he was not successful and the conviction and sentence was overturned. This was a high sentence and one that was upheld by the 9th Circuit.
Attorney Commentary: Here are some highlights from this case which show the difficulties in trying this type of case before a jury:
First, the DEA went undercover and had tapes. The DEA is sending in undercover agents because prescription drug fraud is a high priority with the agency. It is estimated that over 7 million persons in the USA abuse prescription drugs. This is more than the number of persons who abuse cocaine, heroin, hallucinogens, and inhalants, combined. Anyone who prescribes pain medications should assume they are being taped or recorded at all times.
Videotaped evidence even if not perfect is usually difficult to defend when out of context comments are made. For example, in this case, on tape Bamdad can be heard calling his "patients" drug addicts before prescribing them the medications they seek. Prosecutors played audio and videotapes made by undercover DEA agents posing as patients in which Bamdad chided them for being hooked on drugs, did not appear to do any meaningful physical exam and then gave them a prescription. At one point he told an undercover agent "you're the healthiest one I've seen today." In addition, the undercover agents testified. One DEA agent testified that Dr. Bamdad sold him prescriptions for painkillers in exchange for cash.
Second, Bamdad testified in his own defense. This is a high risk move in a federal trial. If Judge Wu find that Bamdad was untruthful that can be used as a ground for increasing his sentence. Since the jury reached a finding that was inconsistent with Bamdad's testimony, this is likely.
In addition, it appears that during testimony, Dr. Bamdad apparently went on the attack and was defensive. Dr. Bamdad testified that when it came to writing prescriptions for painkillers, his philosophy was simple: "If they have pain, I give them." Though he testified at one point that he could tell what was wrong with a patient "95% of the time" just by looking at them, he admitted he could not discern whether someone was pretending to be in pain to score drugs for recreational use. He said that his patients are "very good looking. Beautiful girls, beautiful boys. I don't know who is drug addict unless they tell me." "I trust the patient," Bamdad said. "If they tell me they have pain and they know what medication can help them, I prescribe. I was doing everything I can for my patients. I didn't run a 7-Eleven. I go by my patient's word."
As the questioning by the prosecutor went on, Dr. Bamdad's testimony became testy and combative. Though witnesses are supposed to respond to questions asked by lawyers when testifying, Bamdad often spoke at length on matters he was not asked about. At one point, he assailed the DEA for entrapping him, raiding his house in search of "treasure" and coaching witnesses to lie against him. He also blamed the parents of Alex Clyburn, the 23-year former patient who died of an overdose last year, of being "negligent."
Third, Dr. Bamdad's ex-patients testified. About a half-dozen of Bamdad's ex-patients, all of whom described themselves as addicts in varying stage of recovery, testified during the week long trial that they bought prescriptions from the doctor by telling him they had back or shoulder pain and needed the pills. This was part of the good faith defense that the doctor believed the patient which is a standard practice in California for physicians. This defense was not enough to overcome the other evidence.
Fourth, failure to follow pain management guidelines and have the files properly documented is usually a significant issue in these cases. Pain management clinics can have an excellent defense if they have followed the guidelines set forth by the California Medical Board and their own medical associations. If any physician is doing pain management, compliance and constant monitoring of the practice is critical to avoid problems. Further, assume that some "patients" are in fact DEA undercover agents.
Conclusion. These cases are difficult to try. Several years ago, we represented an older doctor who was known as the "Dr. Feelgood" in a particular community. He was particularly susceptible to addicted manipulative patients who portrayed him as a "god" to their chronic pain issues. Moreover, two patients had overdosed and died. Once criminal charges were filed, the Medical Board had come in to file a motion to close down the practice. At the earliest stage, we assessed all the medical files, met with the DEA, and were able to persuade the physician to surrender his license in order to obtain the dismissal of all criminal charges. It was difficult, however, since many physicians have their professional identity and do not want to recognize the problems in these cases and cannot see how these trials could possible result in them spending years in prison. It took the physician's entire family to persuade him that it was not a case to risk his remaining years of freedom. Every case is different but an early realistic assessment of these cases is very important in evaluating the risks and the defense.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green Associates in Los Angeles, California. They focus their practice on the representation of individuals, licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers.
