In most physician prosecutions for treating pain or addiction, there is never any actual evidence of criminal intent. Just the nebulous argument that a doctor “ignored the risk of overdose,” “ignored the risk of addiction,” or performed “an insufficient medical exam.” I have a big problem with these because the doctor didn’t ignore anything in about 80 percent of the cases I evaluated. Indeed, the DEA had to lie to a doctor to get a prescription. Usually, they send in a compromised patient, but sometimes an actual agent. The first, knowing their freedom, depends on somehow incriminating the doctor; the other is well-trained in deception. Both are willing to lie to the doctor to get what they need.
These undercover operatives will come in with falsified imaging studies like MRIs (Dr. Robin Cox) or completely manufactured medical records (yours truly). They will then lie to the doctor, saying they have pain, faking it on the physical exam, etc. To those who think you can tell when someone is lying or faking, I assure you that belief only makes you more prone to deception. The success rate of trained interrogators, even with polygraphs, is about 50/50. A coin flip. In most of these “stings,” the doctor does a good job, but tapes and video are mysteriously unavailable in this case. But you don’t need to lie when the doctor is truly a criminal. And the tapes magically appear.
But if an undercover agent comes into a doctor’s office offering cash for a prescription for a certain medication without records of being on it in the past and without going through an evaluation and still gets it, there is a big problem. In this case, we have Dr. Mendez and Pena-Rodriguez, 59 and 56, respectively, and a “recruiter” named Hernandez, age 35. Recruiters are paid by drug trafficking organizations to find new customers. Doctors should always avoid “marketing” specialists who want to get paid per patient found for a clinic, as this can be illegal under some insurance contracts and a bad idea, period, as now it can be confused with “recruiting” for drugs. Use Google for the young and mailers for the old.
According to the government, evidence of 24 undercover visits were on hand, including audio and video recordings. This was enough for Pena-Rodriguez, who pleaded guilty five days before his trial started. Hernandez pleaded guilty, too. Dr. Mendez chose to fight it in court, which is very surprising to me if these tapes existed. Doctors are being convicted with no evidence at all, so I would question this choice. If you had criminal intent, plead guilty through your attorney and get your credit for doing so. The American federal court system right now is designed to reward true criminals who don’t put up a fight. On the other hand, the truly innocent don’t have a chance.
The video and audio recordings introduced into evidence were said to show undercover officers posing as patients requesting medications by name and receiving prescriptions despite never having complained of pain. If true, there would be no excuse for this. The medications were tramadol, alprazolam, and hydrocodone. The last is Schedule II, which makes it a very big deal, but federal prosecutors control sentencing to a great degree. They can often enhance a parking ticket to a life sentence, “Parking with intent to kill,” or something other. In this case, the doctor is said to have charged $200 to $250 cash to write these prescriptions at least 24 times over a period of two years.
If that wasn’t enough, they have this on tape, mind you; he gave instructions to the undercover operatives on how to avoid law-enforcement detection. Telling your patients to keep their pills in their bottles so they don’t get unjustly locked up is good medicine. Telling them to lie to the authorities for any reason is a very bad idea for them and you, as it can be used to argue criminal intent. The undercover officers received the illegal prescriptions on multiple visits where the behaviors were repeated and, with the tapes, prevailed at trial with a guilty verdict and a seven-year sentence. This time, I agree. This appears to be a criminal act, and we are all safer if doctors like this are identified.
The article I read quoted the Dallas DEA Special Agent in Charge thusly, “We will continue to investigate and seek prosecution against medical professionals who break the law and, simply put, deal drugs. Not only did Dr. Mendez flagrantly dismiss his professional and ethical duties, but evidence showed he attempted to conceal his criminal conduct by suggesting methods to thwart law enforcement intervention. He failed. DEA will continue to hold these rogue doctors responsible for their reckless and illegal behavior.” I think he meant rogue doctors, and that was probably a reporting error, so those of us with a redder skin tone can relax… I hope. In any case, kudos to the Dallas DEA on this one.
Take what you’ve learned in this case and a few others and recognize the difference between a doctor purposefully doing harm and one practicing in a way you just don’t agree with. Selling medications by the milligram or pill count – illegal. Not seeing a patient at all – illegal. Making a risk-benefit assessment in a manner different than a DEA agent would – that’s medicine. Learn the difference, and we’ll all be better off.
L. Joseph Parker is a research physician.
