Pubdate: Thu, 15 Jul 2004
Source: Sun News (Myrtle Beach, SC)
Copyright: 2004 Sun Publishing Co.
Note: apparent 150 word limit on LTEs
Author: Kenneth A. Gailliard, The Sun News

Oxycontin Case


FLORENCE - Three former doctors from the defunct Comprehensive Care and 
Pain Management Center in Myrtle Beach should remain free on bond because 
they may have been convicted and sentenced improperly, their lawyers said 

"That's not a technicality," said attorney Eli D. Stutsman, who has 
appealed the convictions based on the legal standard used. "That is huge."

The doctors' lawyers also plan to appeal their sentences based on a recent 
U.S. Supreme Court decision regarding information juries should consider 
before sentencing, Stutsman said. Lawyers want the doctors free while the 
appeals are pending.

Federal Magistrate Judge Thomas E. Rogers was expected to decide Wednesday 
whether doctors Deborah Bordeaux, Ricardo Alerre and Michael Jackson should 
begin serving the prison sentences they received in February.

Instead, Rogers allowed defense lawyers and prosecutors time to research 
the Supreme Court ruling, which could lead to reduced sentences for the 

The three have orders to report to prison within a month, but it is not 
likely they will report before the next hearing before Rogers is scheduled, 
said Assistant U.S. Attorney Bill Day.

Jackson, Alerre and Bor-deaux are among seven doctors sentenced in what 
prosecutors said was their largest case involving doctors charged with 
overprescribing narcotics, including the potent painkiller OxyContin.

On Wednesday, Stutsman said appeals have been filed asserting that 
prosecutors convicted the doctors with a case based about 70 percent on 
whether the drugs prescribed at the pain clinic were medically necessary.

He said prosecutors stressed throughout the trial that the drugs 
distributed were not medically necessary, instead of saying the drugs were 
prescribed outside normal medical practice.

Stutsman told Rogers that, by arguing medical necessity, prosecutors used a 
civil standard in a criminal case, which was improper.

The civil standard could be used to prove negligence but not a criminal 
violation, he said.

Day said prosecutors used the correct standard by proving the doctors acted 
outside their the course of their professional practice.

"You would expect a doctor to examine a patient before prescribing drugs," 
he said. "And I would think they would ask if they took all the medicine 
from the month before before prescribing more."

Stutsman said lawyers also will challenge the doctors' sentences citing a 
Supreme Court decision last month - Blakely v. Washington.

A judge cannot set a sentence using information a jury did not consider, 
according to the Blakely ruling, Stutsman said.

Bordeaux, Jackson and Alerre's sentences were improperly tied to the total 
amount of narcotics distributed at the clinic and not the quantity each 

Bordeaux, for example, was specifically charged with writing four 
prescriptions to two patients but was assigned a share of responsibility 
for the entire amount of drugs prescribed at the clinic.

Day said although the indictment didn't link doctors to specific quantities 
of drugs, jurors heard during trial about specific prescriptions each was 
accused of writing.

An appellate court must decide both issues. Stutsman said it could take as 
long as 15 months for the appeal to be heard.

Jackson, Alerre and Bordeaux received sentences of 24 years and four 
months, 19 years and seven months, and eight years and one month, respectively.

The clinic's owner, Michael Woodward, pleaded guilty in exchange for 
lighter sentences.
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