Health Care Hot Topics: The Physician’s Incarceration Experience, COVID-19 and Prison, and DEA ‘Red Flags’

In our latest edition of Chapman Law Group’s Health Care Hot Topics, we welcome Linda Cheek, MD, founder and director of Doctors of Courage. A former Roanoke, Virginia-based family physician, she’s been instrumental in assisting physicians who are facing prosecution or indictment by the Department of Justice, by helping them understand their rights and pointing them to the right resources.

Linda started Doctors of Courage — whose website has resources and news stories about the “injustice against medical professionals and chronic pain patients” — after being convicted on improper prescribing-related charges. She served more than two years in prison and four months in home confinement.

“I never really intended the website to be only for doctors; it is for all people affected by the lack of pain management,” she tells Ronald W. Chapman II, chair of Chapman Law Group’s White Collar Defense and Government Investigations practice.

In this episode, Ron speaks with Linda about:

  • Her experience and observations in the federal corrections system for health care providers
  • Health care providers’ and chronic pain patients’ constitutional rights
  • Why inmates are especially susceptible to Coronavirus (COVID-19) and what the government should do to alleviate the situation
  • How DEA “red flags” are problematic in controlled substance matters
  • The status of adequate legal representation for physicians in the health care industry

Here are highlights from their conversation.

Ronald W. Chapman II, chair of Chapman Law Group’s White Collar Defense and Government Investigations practice, speaks with Linda Cheek of Doctors of Courage on this episode of Chapman Law Group’s Health Care Hot Topics.

What is Doctors of Courage about?

“We were formed in order to try to help doctors to prevent, first off, attacks [from] the government, and secondly, in case they are attacked using the Controlled Substance Act, then we try to guide them in a direction that they can plan their defense, that they can make choices as they can be educated as to what the cause of all of this is.

“Because, for the most part, doctors are naïve. They think that as long as they’re doing things right in the office and doing everything appropriately according to the law that they are protected — and that is not the case.”

How did you end up incarcerated?

“I was actually [convicted] twice. First in 2006, when they could only come up with a charge of Medicare fraud … even though what we did was considered to be legal. So I accepted a plea agreement in 2006 but they completely, from the beginning, intended to close me down. So they attacked me again in 2010, and that time I decided I wouldn’t take a plea, that I would fight this because I am innocent. But that’s one of the things we try to teach doctors, that innocence is really of no importance.

“So I ended up being convicted and spent 26 months incarcerated at [Federal Prison Camp] Alderson in West Virginia. And then I came out of there with the plan and the decision to try to stop this from happening to other doctors.”

What was Alderson like?

“Alderson is not ‘Camp Cupcake’ like they claim it to be. This is where Martha Stewart was also incarcerated for six months. I must say that of the two prisons that I spent time in, it was the absolute worst. The people treat you very poorly. … I felt so much abuse of residents at Alderson that I’m planning on writing books about that.”

What other kinds of professionals did you meet during incarceration?

“I had developed some good friendships. I met a lot of other people that are innocent, people put in prison the mortgage fraud situation that should not have been. They were innocent; all they did was send an email from their boss to another person, and they are guilty of conspiracy. Conspiracy is the absolute worst when it comes to putting innocent people in prison, and the government is using it up one side and down the other.

“There were a lot of [prisoners there on a] conspiracy charge, especially because of the mortgage fraud situation. The thing that interested me was there were people in prison on charges of conspiracy where they were the only one. How could you conspire when you’re the only person in the conspiracy?”

Are prisons adequately equipped to protect inmates from COVID-19?

“Definitely not. They’re not equipped, and they really don’t care to protect inmates against the Coronavirus. They are overwhelmed as far as population. The rule in federal prison is that you’re supposed to have 92 square feet per inmate, and they have a minimum of four people in a 9-by-12 cell, and that’s in the women’s prison.

“And then there is no means of hand sanitizers, no sanitary functions. If a person ended up sick, they’re simply left in the cell to contaminate other people, there’s not going to be any movement, they don’t really have any place to move them to, they don’t have beds, and they’re sure not going to take the time to take an inmate to a local hospital.

“I have actually seen, [with] Coronavirus, inmates that are sick, they are dying, tell the guards, ‘I need to go to the hospital,’ and they are ignored, and they die and they are taken out the next day to the morgue.”

How do these prisons treat patients with a health care concern?

“They have general practitioners that are assigned to the prison that basically will see a person that’s sick. They generally don’t do anything for them as far as illness. There was a joking thing at Alderson that if you get sick and you need to go to the doctor, you pay $4 to visit and then the doctor’s going to tell you to go to the commissary and buy Benadryl. They basically treated everything with Benadryl or ibuprofen.

“I was having chest pain and they just looked at me, put a stethoscope to my heart and said, ‘Oh you’re OK, go back.’ I said, ‘No I think I need an EKG,’ and of course they knew I was a physician. So then [the doctor] kind of squirreled her face up and then hooked up the wires to check my chest with an EKG. So you know they really don’t care about treating you.”

What can the U.S. government do for prisons during the COVID-19 epidemic?

“If they can determine, and I think they can in a very easy manner, who is not a danger to society, which is basically all of your low-level crimes, if they could immediately get all those [prisoners] released, then they need to put all of the inmates that are a danger to society in a specific prison. Then turn those other camps or [Federal Correctional Institutions] into hospitals … because they would be perfect to be able to isolate the people [with] Coronavirus. Because you’ve got the individual rooms that are protected, you have the entire prison that’s protected, and then we make it be used in a more functional manner. This would need to be something that would need to be done rather quickly and starting with the release of the prisoner.

“… One of the actions that Doctors of Courage is working on right now is to try to get all those doctors that have been improperly imprisoned released so that they can help with the Coronavirus and hoping their payback will be, if they stay alive, they literally slowly protect from being attacked again in the future.”

Do you think the DOJ should be investigating physicians for treatment during the COVID-19 pandemic?

“I think that’s a possibility. I think that any doctor who uses telemedicine to prescribe opioids to their patients is basically getting set up. Now I have heard that the DEA actually wrote something to say that that would be allowed … but a state law, if it’s not in the federal role, they can still come around later, then attack those very doctors for doing what they thought was appropriate medicine and [be] able to do it.

“There are actually statutes in the Controlled Substance Act that do allow for telemedicine and allow for prescriptions … for people who have not seen the doctor for over two years. But then they haven’t paid any attention to that section either when they charge every doctor that goes to trial with not having done a proper exam on every visit — even though pain is a subjective case and a doctor doesn’t have to listen to your heart, listen to your lungs, you know, feel your knees or whatever to determine if you still need your pain medicine. But they’re still being attacked in the court for not doing that physical exam.”

Do you have any recommendations for navigating compliance during this pandemic?

“Document, document, document in the record. If they see a patient through telemedicine, they need to have the history.

“Pharmacies also are in jeopardy because they’re being used as policemen to target the doctors or they themselves also can become targeted. … It’s actually just a cat-and-mouse game.”

What are some of the trickier aspects with DEA ‘red flags’?

“The red flag is basically something that you notice when you are visiting with your patient or when you have a doctor-patient relationship, something that stands out that says, this is a potential patient that might not be using their medicines appropriately, they might be addicted to the medicine, they might be selling their medicines.

“If a doctor continues to prescribe medicine to a person that has those red flags, whether he recognized them or whether he hasn’t, he doesn’t even know about them but the government recognizes them, then that doctor is considered to be guilty of distribution of medicines to the illegal market.

“[Before medical marijuana], when I was in practice, if a patient came to me and in their drug screen they had marijuana in their urine, if I was to continue to give them an opioid, I could be held liable for prescribing it, for giving something that they might then take to the street and sell. So then there are doctors out there that, even though there is a something in the urine drug screen that shouldn’t be there, they still prescribe.

“That’s a doctor’s decision, and if the patient explains, ‘Well I didn’t have medicine for this so I took a Tramadol,’ or something like that, and Tramadol shows up in the urine, the doctor should be able to freely decide whether or not that patient still deserves to be on opioids. They should not have the fear that, ‘So if I give this person an opioid even though this person has all of these terrible diseases and needs pain relief, I’m going to be trapped and charged with a crime.’ These are where the government is no longer giving the doctor the decision to make medical decisions in the office.

“I’m personally against the criminalization of drugs to start with, [and] we need to do away with a Controlled Substance Act. But as long as we have it, then we need to be able to identify those patients that aren’t going to have medicine in their system if they get a drug screen.

“… The term that they’re using is ‘legitimate medical practice.’ Legitimate medical practice absolves doctors from charges and so what the government says is, ‘You’re not using legitimate medical practice.’ But … [the government] can’t define what legitimate medical practice is because it says in the Controlled Substance Act; only a doctor can determine what is legitimate medical practice. So [the government] needs to, in defense, show that the Controlled Substance Act is being used illegally and that no doctor treating pain can be charged with it.

“This has been determined multiple times by the Supreme Court, given to the point now where the Supreme Court won’t even hear any more cases on this because they put the decision down so many times that, in order to be charged with the Controlled Substance Act, the doctor has to be selling the script out on the street to an addict. And they’re not; they’re treating patients.

“Bottom line, if there is a patient record, the doctor is treating a patient and is exempt from prosecution. But how they’re still being prosecuted, and why that defense is not striking home with people, I do not know.”

What are patients supposed to do when they when they fear that they can’t get controlled substances from their physician to handle their debilitating pain?

“Well, they’re of course very anxious and there’s really not a lot they can do about anxiety, because now you break the law or you get charged with a crime if you prescribe a benzodiazepine at the same time you prescribe an opioid, even though it has been done safely for 20-plus years.

“But, you know, the anxiety is actually one of the things that drives addiction up. So the government attacking doctors and destroying the doctor-patient relationship is actually creating addiction in this country. But then what they use that for is saying, ‘Oh well, look at the arrangement. Addiction is rising, we’ve got to put more of a clamp on the opioids again.’”

In many of the cases that you’ve seen, have you seen physicians reluctant to go to jail where they otherwise should have considered going to trial?

“I am definitely for everyone going to court. I do not agree with a plea agreement, even though I know doctors are forced to, and when I talk with them, I don’t tell them, ‘You have to go to court.’ I say, ‘This is a decision only you can make.’

“But in my opinion, it’s the people who took the plea agreement back in the early 2000s that has led to where we are today. Because if they had stood up and said, ‘I am innocent,’ and not [pleaded] and say, ‘I am guilty of doing this,’ all that does is open the door for the next victim and the next victim and the next victim, especially since if they can get a doctor to plea in the first six months of the raid, then you know they’re hitting doctors — just snap-snap-snap — and then going after the next one.

“Pretty much every doctor that ends up taking a plea does so because they’re afraid to go to trial or they don’t have the money to go to trial. Another thing [is] that they drag the cases out two years, three years, four years, and whatever resources the doctor has gets eaten up. And then, finally, when it’s trial time, they don’t have any resources to put the cost of the trial, and they’re forced into a plea agreement.”

Is there enough adequate legal representation for physicians in the health care industry?

“In my opinion, [Chapman Law Group] is basically the only one out there in the country that has any clue as to how to handle these cases. I have yet to meet any other medically oriented law practice that knows how to handle the defense for doctors being charged with this crime, and [other law firms] generally all use the standard white-collar approaches, which simply won’t work. … There’s a big empty hole of need for lawyers out there that can properly defend doctors in these cases, and I just don’t see them out there.”

Our National Health Care Criminal Law Practice is Here for You

We respect and appreciate Linda’s efforts. Several of Chapman Law Group’s national physician clients who have been convicted of improper prescribing, or faced similar charges, have taken comfort in the forum that Doctors of Courage provides.

At Chapman Law Group, our health care criminal defense attorneys have strong experience representing physicians, nurses and others medical professionals all across the U.S. who face criminal prosecution. We provide comprehensive and aggressive legal representation for national health care providers accused of drug diversion, DEA matters, Medicare fraud, Medicaid fraud, and False Claims Act and Anti-Kickback violations.

Whether you practice in Michigan (DetroitDearborn, Troy, Ann Arbor and Grand Rapids, among many more regions), Florida (including the metro areas for Miami, Orlando, Tampa, West Palm Beach and Jacksonville), or nationally in regions including Los Angeles and Southern California, Chicago, Pittsburgh, and Washington, D.C., we are ready to help you.

Contact us today and let us put our know-how to work for you.

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Ronald W. Chapman II, LL.M.
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Chairperson of White Collar Defense & Government Investigations

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1441 W. Long Lake Road, Suite 310
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Phone: (248) 644-6326

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