- Associated Press - Sunday, January 4, 2015

AUSTIN, Texas (AP) - Many Texas doctors who violate prescription drug laws have little to fear from prosecutors, even when their patients die of an overdose.

Despite a 2010 law to crack down on illegal prescribing, criminal charges were filed against fewer than a third of the 83 doctors punished by the Texas Medical Board in the past three years for drug law violations involving two or more patients, an American-Statesman investigation has found (http://bit.ly/1I0cAlW ).

Some doctors with a history of prescribing violations ultimately give up their license to avoid further scrutiny and freely move on or retire. Still others remain in practice.

Take, for example, Dr. Joel Joselevitz of Houston, who had three patients die of an overdose from 2010 to 2012, according to the medical board.

When the board refused his request to operate a pain clinic in 2012, citing his past prescribing infractions, Joselevitz did it anyway, the board said, without the required license. Its disciplinary order says that during a 30-day period last year, he saw 449 patients and prescribed potentially addictive pain drugs to all but nine - far above his peers’ average.

Joselevitz, 55, failed to adequately justify a medical need for the drugs, failed to follow standards of care and failed to monitor patients for drug abuse, the board’s order said. And that was after the three deaths.

As punishment, the board in August forbade Joselevitz to treat patients for chronic pain or prescribe controlled substances. He agreed to the order and said in a brief email that he is trying to rebuild his practice in Houston after the board caused him to lose most of his patients. He can ask to have his prescribing authority restored next summer.

Medical board spokesman Jarrett Schneider said by email that the board did not try to revoke the doctor’s license, thus avoiding “a potentially protracted trial with an uncertain outcome.”

The Statesman reached two of the three families who lost loved ones to overdoses. They said they were stunned that Joselevitz did not lose his license - or worse. He defended his care in a civil lawsuit.

“There were problems with documentation, but in all manners, it was appropriate for the patient,” Joselevitz said in a sworn deposition about his care of Joanne Tilley, who overdosed in 2010.

Carol Roane of Laguna Niguel, California, whose daughter Nikki Willens overdosed in Houston in 2012 while in Joselevitz’s care, has become an advocate for parents who lose children to prescription drug overdoses. She sued Joselevitz and complained that he overloaded Willens with prescriptions until she became addicted.

“In my opinion, he just slowly killed her,” Roane said, “with his prescription pad.”

Although fatal prescription drug overdoses exceed heroin and cocaine deaths combined and are considered an epidemic, claiming the lives of more than 400 Texans a year, the Statesman review found more than two-thirds of the doctors the board punished did not face criminal action for their prescribing.

Most often the board, which can’t impose criminal charges, acts administratively on a doctor’s license after being notified of an arrest, the Statesman found. But when the board acts first, criminal follow-up is much less frequent, raising questions of public safety and fairness.

The board is required to report suspected criminal activity and said - after several rounds of questions and records requests - that it turns over all of its orders to the Texas Department of Public Safety and its more serious actions to the U.S. Drug Enforcement Administration.

The Statesman pushed for records of exactly how many cases were referred and how many were pursued in criminal court, but board notifications to authorities are confidential, as are law enforcement investigative files.

DPS spokesman Tom Vinger said his agency reviews all orders it receives, aggressively pursues wrongdoers and shares information with local authorities. The DEA has good relations with medical boards and actively pursues cases, spokeswoman Barbara Carreno said. Most often, the DEA takes administrative, not criminal, action, such as canceling a doctor’s authority to prescribe controlled substances, she said.

Roane called that “a pinkie slap” for Joselevitz.

Mark Tilley, who sued Joselevitz after his wife’s death, said he reported him to DPS and the DEA but got nowhere.

A Tilley family lawyer said he couldn’t discuss the outcome of the Harris County civil suit. Roane said she couldn’t comment and referred questions to her lawyer, who said her civil case was dismissed by agreement among the parties.

“If this had been a high-profile celebrity, like Michael Jackson, this doctor would have been in prison,” Tilley said. “The only difference between this guy and a dealer on the street is, he’s got a license, and he’s protected by insurance.”

In addition to Joselevitz, physicians disciplined but not prosecuted this year include Joel Alvear, 44, formerly of Katy, who was first punished in 2009 for prescribing violations and sexual misconduct, and Charles Carroll Bittle, 55, of Tahoka, who at one point wrote prescriptions from a metal outbuilding and had five patients in the same emergency room over a 10-day period, the board said.

‘Just the obvious ones’

Texas is hardly the only state where physician prosecutions are unusual, experts said.

Those cases require a higher standard of proof than medical board actions and are complicated because some patients lie about their pain and the drugs they take. Accusing a doctor of “non-therapeutically prescribing,” the term for issuing prescriptions without a medical justification, questions a doctor’s judgment and can be hard to prove, even after a costly investigation, experts said.

Many doctors can afford experienced defense lawyers to go against publicly funded prosecutors. Physicians also are becoming more aggressive when facing accusations from the medical board, said its president, Dr. Michael Arambula of San Antonio.

“Physicians fight these cases like they’re in court,” he said. “I wish we could do things quicker.”

He said he believes that most cases the board sees “don’t rise to the level of criminal.”

Technically, any violation of the Medical Practice Act, which the board enforces on the state’s 69,499 doctors through its rules, is a crime, said Mari Robinson, the medical board’s executive director and a lawyer. However, she added, the board would not report to law enforcement minor infractions, such as failing to take a required course.

Drug prescribing laws are confusing and vague, and that also can stymie prosecutions, said Harris County District Judge Ryan Patrick, who previously prosecuted drug cases in Houston.

Law enforcement agencies and prosecutors have to weigh the challenges of taking a case against their limited resources, Patrick and others said.

The Statesman found another problem: a prevailing attitude among medical boards and law enforcement officials that disciplining a doctor is often good enough, especially when it revokes a license to practice or restricts the doctor’s prescribing authority. The idea that a doctor might have committed a crime by recklessly prescribing is often not considered, experts said.

“It’s a mindset. You will see this in almost any area of the law when there’s a crossover between a regulatory board and a law enforcement office,” Patrick said. “While I don’t think it’s fair that anybody gets treated differently, I believe it’s a problem built into the system.”

The notion of charging a doctor with a crime for non-therapeutic prescribing “hasn’t been around for all that long,” Robinson said, referring to the Texas pain clinic law that took effect in September 2010.

She added that the board is more likely to act than law enforcement. “I have seen us work joint investigations where we wind up suspending or revoking and we are unaware of law enforcement doing anything” afterward.

Dr. Suzanne Novak of West Lake Hills, president of Austin Outcomes Research, which assists organizations whose workers have become disabled or suffer chronic pain, said the board is “much improved” under Robinson. But because the board receives so many complaints it can “only touch the tip of the iceberg,” she said.

“These cases are horrible,” she said after reading board orders on doctors described in this article. She added that she had not considered the possibility that the board might turn cases over to prosecutors.

Patrick, as well as assistant district attorneys and law enforcement officers in Travis and Harris counties, said they could not recall the board ever notifying them about a doctor meriting their attention.

Even so, Harris County Assistant DA Joshua Phanco said, he struggles to keep up with prescription drug cases. “I am just trying to get the obvious ones, but there are a lot doing it really sly and really smart.”

What doctors have that street dealers lack are lobbyists, Phanco said. The lobbyists help protect doctors - 99 percent of whom are law-abiding, he said - and “don’t want us to change the laws to get bad doctors.”

Two former medical board lawyers - Darrin Dest, who left in 2011, and former general counsel Bob Simpson, who left in 2009 - said they could not recall the board referring cases to prosecutors.

The board did not have a notification policy, Simpson said. “It’s just not on their checklist to do,” he said. “I never thought much about it.”

Both he and Dest left to represent doctors facing board discipline and said they could not speak to what goes on at the board now.

“It’s the white coat effect. We’ve grown up respecting doctors and assuming what they’re doing is right,” said Houston malpractice lawyer Tommy Hastings, who represented Tilley family members in their suit against Joselevitz and a family who sued Alvear.

The medical board has followed a long-standing policy of reporting physicians to criminal authorities, spokesman Schneider said. A copy of the policy was dated earlier this year, but he said the practice has been in place for at least a decade.

Although the board also disciplines physicians for diverting drugs to themselves or to one other person, they were not included in the Statesman’s analysis. Had they been, the percentage of disciplined doctors avoiding prosecution would be far higher than the 69 percent the Statesman found.

Board staffers take part in raids on physicians’ offices and clinics with the DEA and DPS. Even then, those cases often end with administrative penalties. The board can’t make authorities prosecute, Robinson said.

Most prescription drug abuse is not the fault of doctors, the DEA’s Carreno said. She cited a 2013 national survey on drug use that found most prescription drug abusers obtained them from friends or family; 1 in 5 got them from doctors.

“A very small number violate the law and have to be investigated at all by anyone, state, local or DEA,” she said in an email.

In most cases, the DEA resolves cases when a doctor surrenders his or her registration to prescribe controlled substances, she said. If the DEA has to revoke a doctor’s prescribing authority, it can take longer because of due-process requirements. Criminal prosecutions take even more time, Carreno said.

An inspector general’s report in May said that while the DEA is acting more quickly, the overall time for deciding cases “continues to be very lengthy,” posing risks to the public health and safety. The average ranged from a high of two years in 2009 to as low as a year in 2012, the report says. Evidence can grow stale and DEA employee morale can suffer, the report says.

Vinger said that from August through October, DPS reviewed 60 medical board orders and found four cases indicating possible criminal activity. Law enforcement already was involved in three, and the fourth “did not meet the threshold to pursue criminal charges,” he said.

The medical board is committed to stopping dangerous doctors, said Arambula, adding that he wants to dispel the perception that the physician-dominated board protects doctors. Since 2012, the board has disciplined more than 200 doctors for prescribing and pain clinic violations and removed 39 from practice, he said in a statement.

Law enforcement officials said they don’t have data on how often they pursue physicians. A June 25 DEA report, Cases Against Doctors, provides a clue. It shows that out of 247 physicians whose federal prescribing crimes were resolved in the past decade, just 10 were from Texas.

Even when physicians are prosecuted, sentences can be light. Thirty-six percent of the doctors in the DEA report faced no prison time.

‘Didn’t learn my lesson’

Some doctors voluntarily give up their medical license to end board scrutiny. Charles Bittle, who said he now drives a truck, said he quit being a doctor this year to end the board’s harassment.

Like some other doctors who land in trouble, he had a long history with the board. His spanned 20 years, starting during his residency training when the board disciplined him for substandard patient care and ordered him to take classes and keep better records.

Concerns about prescribing surfaced in 2000 when the board said he over-prescribed addictive drugs to 49 patients. The board found he had failed to document treatment plans and pain assessments. He had five patients in the ER during the same 10-day period after he prescribed “unusually large quantities of several controlled substances.”

Bittle agreed to five years of administrative probation. He also agreed to surrender his DEA and DPS prescribing certificates and was forbidden to treat pain patients.

He later regained the authority to treat certain pain patients and to prescribe controlled substances. But at the end of 2013, the board learned a patient had received numerous prescriptions for oxycodone and was filling them at four pharmacies. DPS investigators found Bittle “practicing medicine in a metal shop-like structure with no signage behind a private residence,” the disciplinary order says.

He was nervous, changed his story constantly and said at one point, “I guess I didn’t learn my lesson,” the order says. Records suggested he was non-therapeutically prescribing to seven patients, including a close friend who received prescriptions for 1,000 oxycodone tablets filled at numerous pharmacies in November 2013, the order says.

In April, the board temporarily suspended Bittle’s license. In June, he gave it up, he said, because he was sick of being hounded and too broke to hire a lawyer.

Like some doctors who lose their license in Texas, he thought of practicing in another state, he said. But he said he didn’t have two doctors who could vouch for him because “they are all dead.”

Still angry at the board, Bittle said its orders are untrue. He was working at a state prison and saw patients one day a week in the place that was raided, he said. His only mistake was prescribing the 1,000 oxycodone tablets, he said.

“You cannot make the statement that you don’t misprescribe if you treat pain,” he said. “One out of every three clients is lying to you.”

Did he check a statewide database to see if patients were “doctor shopping” for drugs? No, “I looked at the patient,” he said. “Do you want your doctor to consider you a drug-seeking liar?”

Doctors need to be better educated, several experts said. And medical boards need to take prescribing violations more seriously, Dallas trial lawyer Michael Heygood said. “If more doctors lost their license, I think that would make a difference,” said Heygood, who said his firm has been in 800 to 900 cases against doctors in 35 states.

“I’m aware of less than five prosecutions,” he said. “My off-the-cuff assessment is 90 to 95 percent of it gets resolved through private settlements through insurance carriers and it never gets to the board,” much less prosecutors.

“I don’t think there should be any scenario where you give up your license to make it easier for you not to be prosecuted,” Heywood said.

Enforcement shortfalls

A June 2013 audit criticized the board’s oversight of pain clinics under the 2010 “pill mill” law.

Auditors said the board had registered 445 pain clinics, now required to be doctor-owned. But when they tested 60 clinics, 68 percent had not been verified.

Further, auditors said, the board did not check the backgrounds of clinic staffers or contractors, and it failed to make sure those writing prescriptions were eligible to do so. In a sample of 283 staffers, auditors turned up questionable information on 11 percent of them.

The medical board also did not ensure that numerous pain clinics with expired certificates had shut down. Nor did it have a process for making sure clinics followed the rules, the auditors said.

The audit urged fixes and told the board to seek out pain clinics that it had failed to register, rather than wait for a complaint.

The agency has since corrected most problems, and by the end of this year, all audit recommendations should be in place, Schneider said.

There are signs the law is having an effect. Prosecutors said they are seeing fewer pill mill cases, especially in Houston, a national hot spot. Overdose deaths peaked in 2006 in Texas and are now declining. The state also has one of the lower overdose death rates nationally. Still, those fatalities are 2½ times what they were in 2000, mirroring increases nationally.

Heroin abuse is ticking back up and is a possible factor in prescription drug abuse, experts said. The Centers for Disease Control and Prevention said in October that 3 out of 4 new heroin users had abused prescription opioids.

More than four-fifths of primary care doctors said narcotic painkillers (opioids) are “overused in clinical practice,” says a Dec. 8 research letter in the Journal of the American Medical Association.

Yet the number of DEA physician cases that U.S. attorneys’ offices prosecute changes little from year to year. “There is a misconception that we’re in the bushes under the window hoping to catch them,” Carreno said. “We don’t have the resources.”

More than 900,000 doctors are registered with the DEA to prescribe controlled substances, but the DEA has just 600 drug diversion investigators, Carreno said. And 12 percent of all prescriptions are for controlled substances, she said.

Robinson said she recently spoke at a DEA conference and emphasized that medical boards and the DEA need to work more closely together to curb the epidemic. “Law enforcement is not used to working with administrative groups,” she said.

Lawyering up

Alvear, who said he now lives in Richardson and teaches, fought the board for several years before its decision in May to take his license. He plans to try to get it back next year and does not believe he broke any laws, he said.

He first appeared on the board’s radar in 2008 when it filed a complaint alleging a sexual relationship with a former co-worker and patient at his former office in Katy. It disciplined him the next year for sexual misconduct in the same case and for allegedly failing to appropriately care for 14 patients, most of whom received painkillers or other drugs without the required safeguards. The board ordered a physician monitor and classes.

He was back before the board in 2011 for issuing prescriptions for controlled substances with an expired DPS certificate and was fined $5,000. Later that year, the board filed another complaint, this time for prescribing to six patients “without adequate, objective medical rationale.”

Alvear returned in 2013 when the board alleged prescribing violations involving one patient and ordered him to turn in his prescribing certificates. The order said he could reapply after a year.

The board again took its complaints to a state administrative judge and in May revoked Alvear’s license for prescribing excessive controlled substances to the six patients described in the 2011 complaint and for failing to monitor them. For one patient, the board said, he refilled 13 prescriptions for hydrocodone, one of the most abused drugs. The patient did not make office visits and went to different pharmacies, the board alleged.

The family of a 28-year-old patient who overdosed, Samantha Greathouse, sued him.

“I don’t believe I non-therapeutically prescribed,” Alvear said. “I believe there were problems with documentation.”

Asked why he prescribed medications after simply being told patients had lost them, Alvear said, “that was an error on my part.”

He drug-tested some patients, but he did not check a statewide database to see whether his patients were “doctor shopping,” he said, referring further questions to his lawyer. The lawyer did not call back.

‘An extremely simple fix’

To guard against doctor shopping, Texas lawmakers created a database for checking on patients’ prescriptions in 1982, but the paper system took about a week for a response, Vinger said. In June 2012, DPS launched the online Prescription Access in Texas program to instantly give doctors and law enforcement officers patients’ controlled substance dispensing histories.

Three states now require doctors to check such a database before prescribing a controlled substance. That would be “an extremely simple fix that would have a huge impact on the problem,” said Austin police Commander Chris McIlvain, who is over the organized crime division.

Terry Cline, Oklahoma’s commissioner of health, has been outspoken about physicians’ roles in prescription drug abuse. Requiring them to check their state’s database would make a big difference, but they fight it, he said.

“Most physicians I know are in the business to heal and provide good clinical care for their patients,” Cline said. “It baffles me why they wouldn’t want to use this clinical tool.”

Arambula, the medical board president, can see why. “The things doctors have to do that are administrative are just unbelievable,” he said. “That’s my hesitation. That doesn’t mean it wouldn’t work.”

Since the state’s crackdown on pill mills, many doctors said they are afraid to treat patients with chronic pain, causing further suffering for patients who need help. Prosecutions would only make it worse, their advocates say.

Asked if the board is as tough as it can be, Arambula, a psychiatrist and pharmacist, paused. “From what I have seen in my seven years on the board, we are in a good place,” he said. “But no matter how good we are, there is always room to improve.”

Too late for Nikki

In 2011, Joselevitz ranked No. 1 in Texas for his prescribing of hydrocodone to Medicare patients, according to Prescriber Checkup by ProPublica, a nonprofit investigative news site. Those patients received an average of 23 prescriptions, compared with an average of 10 by his peers. Also, 97 percent of his patients filled at least one prescription for a narcotic painkiller, compared with 82 percent of his peers’ patients, the site says.

Tilley and Willens began seeing him after he consulted on their cases during hospitalizations in Houston.

Joanne Tilley, who lived about 45 miles away in Cleveland, had back surgery in 2009. The board said Joselevitz failed to note that she had anxiety and depression. He did not act when two screening tests detected drugs other than what he prescribed, a potential red flag for abuse, nor did he devise a treatment plan, the board said. Its order also said he failed to document whether the drugs were helping, failed to refer her for a psychological assessment and failed to detect early refill requests as a sign of addiction.

However, he ordered drug screens, used a pain contract and denied refills on occasion, the board’s order says.

Mark Tilley said he called Joselevitz’s office several times to warn him that his wife had a pill problem that was worsening. She did not tell Joselevitz about past substance abuse, did not comply with his instructions and drank alcohol with her medications, according to the board order, which does not name patients.

She was sleeping a lot, Tilley said, and one day “she literally quit breathing in front of me.” An ambulance whisked her to a hospital, but 16 hours later, she was dead, he said.

The board ordered Joselevitz to take classes and pay a $2,000 fine. When the California medical board disciplined him in connection with Tilley’s death, he said he no longer practiced there and surrendered his license. That August 2012 order says he “agrees that cause exists for discipline.”

The Texas Medical Board “spent more time excusing his behavior than they did concentrating on preventing that behavior in the future,” said Hastings, the Houston lawyer. “It’s a very tough situation for the families.”

In his deposition, Joselevitz said Tilley’s aberrant drug screens and early refill requests did not present red flags.

Roane blames Joselevitz for spoiling her life.

The board alleged in a complaint in February that despite Joselevitz’s testing that showed Willens (identified as Patient 1) to be “at high risk of using controlled substances aberrantly” and tests that showed she used drugs he did not prescribe, his treatment “did not include any strategies” to curb that risk.

“Patient 1 was repeatedly prescribed opioids without reliable and/or clinically meaningful indication and/or evidence of a therapeutic benefit,” the complaint says.

Willens was 25 when she overdosed.

The board found similar problems with a third patient who died in 2011. That patient, whose family did not return calls or emails, was hospitalized in 2008 after a possible overdose, but he did not address that with her, the board’s complaint says.

Joselevitz wrote in an email to the Statesman that he did not want to discuss his prescribing or patient deaths. “I am afraid the TMB can cause me further damage,” he said, referring to the medical board. “One thing I can tell you is that the majority of my 600+ ex-patients cannot obtain anymore appropriate pain management services.”

A Twitter account in his name says in a June 24 post, “TMB you will be proven wrong!” A May 14 tweet says, “TMB wants Doctors to desist to treat legitimate pain patients via their witch hunt campaign. Pain Patients Unite!”

Joselevitz sued the Statesman and Roane after the Statesman emailed him requesting an interview. His lawyer Howard Steele Jr. wrote back, saying, “If we can agree to refrain from publication so there will be no irreparable injury to my client, I am sure we can resolve this matter.”

The Statesman was dropped from the suit this month.

Roane said a woman from Joselevitz’s office had called her after she reported him to the board and chided her, faulting her for her daughter’s death. Though it’s too late for Nikki, she said, she wants to help others.

“I’m a mom. That’s all I ever wanted to be,” Roane said, starting to cry. “The hardest part is I can’t hold my child anymore. She’s dead … How many people have to die before you all do something?”

___

Information from: Austin American-Statesman, http://www.statesman.com

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