I often see older physicians caught up in criminal prescribing cases. Part of it may due to impairment and part of it may be due to trusting others including patients. Older physicians need to seriously question their conduct and business arrangements since failure to follow the standard of care can be criminal if it involves scheduled drugs. The standard of care for pain management has changed drastically the last 10 years and the record keeping requirements have also increased.
A recent case illustrates this issue. On October 2, 2018, a federal grand jury indictment against Santa Rosa neurologist Thomas Keller, age 72, was unsealed charging him with distributing Schedule II and IV controlled substances outside
the scope of his professional practice and without a legitimate medical need. Dr. Keller was also charged with two counts of health care fraud related to billing. An indictment merely alleges that crimes have been committed, and Dr. Keller, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt.
According
to the indictment filed September 27, 2018, and unsealed on October 2, 2018, in June of
2017, Dr. Keller, 72, of Santa Rosa, was a licensed physician when he knowingly
distributed Oxycodone to a person knowing that the distribution was outside the
scope of his professional practice and not for a legitimate medical purpose.
The indictment further alleged that in March of 2018, Dr. Keller allegedly distributed Tramadol to
another person, again knowing the distribution was outside the scope of
professional practice and not for a legitimate medical purpose. Then, in
July of 2018, the indictment alleges, Dr. Keller distributed fentanyl to a
different person knowing the distribution was outside the scope of professional
practice and not for a legitimate medical purpose. In addition, Dr. Keller is
accused of submitting two fraudulent health care claims for payment as follows:
one to Anthem Blue Cross of California in March of 2018, and the other to
Medi-Cal in July of 2015.
In
sum, Dr. Keller is charged with three counts of distributing drugs outside the
scope of professional practice, in violation of 21 U.S.C. §§ 841(a)(1), and two
counts of health care fraud, in violation of 18 U.S.C. § 1347. This
prosecution is the result of investigations by the DEA, FBI, HHS-OIG, and the
California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse. Dr. Keller is next scheduled to appear next before the Honorable Judge
Vince Chhabria on Tuesday October 16, 2018.
The maximum sentences for these charges are high. However, the maximum is usually not imposed and any sentence following a conviction (by trial or guilty plea) would be imposed by a federal judge after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. However, the maximum sentences show the seriousness of these type of charges and why physicians need to be very careful when prescribing pain management drugs.
The maximum sentences are as follows: If convicted, Dr. Keller faces a maximum sentence of 20 years imprisonment and a fine of $1,000,000, for the distribution of fentanyl and Oxycodone. If convicted, Dr. Keller also faces a maximum statutory sentence of five years in prison and $250,000 for the distribution of Tramadol. In addition, if convicted, Keller faces 10 years in prison and $250,000 (or twice the gain or loss) for each violation of 18 U.S.C. § 371. Additional fines, restitution, and additional periods of supervised release also could be ordered at sentencing.
