In our experience, these undercover operations are usually videotaped. If the undercover operation is not successful for prescription sought (such as Oxycontin), they will send undercover investigators back in and request other controlled substance prescriptions (such as Vicodin, Adderall, Xanax, etc.).
Based on the results of the undercover operation, the investigators determined that they had probable cause to believe that Dr. Fisher prescribed controlled substances without a legitimate medical purpose and prescribed controlled substances to an undercover customer who admitted to using heroin and methamphetamines.
On August 29, 2013, an arrest warrant was issued by the Santa Clara District Attorney's Office, bail was set at $64,000, and Dr. Fisher was charged with the following counts:
(1) prescribing without a legitimate medical purpose in violation of California Health and Safety Code Section 11153;
(2) prescribing to an addict in violation of California Health and Safety Code Section 11156; and
(3) prescribing to an addict in violation of California Business and Professions Code Section 725.
Attorney Commentary
Physicians who prescribe controlled substances need to assume that everything is being recorded and that their records will be reviewed to determine if there is "legitimate medical purpose." If your personality is to trust patients -- and for physicians trained years ago who were not in the habit of cross-examining patients -- it must be remembered that when "red flags" appear, such as disclosing prior illegal drug use, conservative action must be taken.
Physicians remember that you cannot help any patients if you put your license in jeopardy. You need to set boundaries and remember that the only way in which you will not be accused of overprescribing or distributing controlled substances is if your records prove there is legitimate medical purpose and that you are not prescribing to an addict. For patients who have medical issues that require scheduled substances, they have to understand that they need to agree to the terms of your medication management agreement or they cannot be prescribed scheduled substances.
At a minimum, physicians who prescribe controlled substances need to do the following:
(1) register for the CURES database and run reports on all new patients and regularly on existing patients (some psychiatrists who treat patients with medications are not as careful on these points as are pain management physicians);
(2) remember that the CURES system is not perfect and do not rely solely on it;
(3) record all drugs dispensed and prescribed in the patient chart and keep copies of the prescriptions in the patient's chart;
(4) conduct the appropriate physical exam and obtain records from prior physicians and speak to those physicians;
(5) have pain management or medication agreements with patients that are followed and document when the agreement is breached;
(6) have a system in place that addresses the patients' medical issues and refer to specialists as needed; and
(7) remember that spending a weekend to address your practice and compliance is well worth the effort.
Once your practice has been open for some time, it is critical to revisit policies and procedures once a year just to protect yourself and your practice.
Posted by Tracy Green
Green and Associates, Attorneys at Law
tgreen@greenassoc.com
213-233-2260
