Pubdate: Tue, 9 Jun 2009
Source: Naples Daily News (FL)
Copyright: 2009 Naples Daily News
Contact: http://www.naplesnews.com/send-a-letter/
Website: http://www.naplesnews.com/
Details: http://www.mapinc.org/media/284
Author: Liz Freeman
Cited: Pain Relief Network http://painreliefnetwork.org/

SUPREME COURT WON'T HEAR CASE OF NAPLES DOCTOR CONVICTED OF ILLEGALLY 
PRESCRIBING PAIN KILLERS

NAPLES -- The U.S. Supreme Court declined to review a case of a 
Naples doctor convicted and sentenced last year for illegally 
dispensing pain medications.

The decision lets stand a conviction that a pain relief organization 
says harms the rights of doctors and patients alike and oversteps 
states' rights.

"It's a sad day for America because it puts pain doctors on such 
notice and legitimate pain patients will have a difficult time 
getting treatment," said Laura Cooper, general counsel for the Pain 
Relief Network, a national group that advocates for the rights of 
pain patients and doctors.

The case involves Sharon Johnston, a doctor of osteopathic medicine 
in Naples. She was sentenced to 30 months in prison last year by U.S. 
District Court Judge John E. Steele following a three-day trial last 
summer in Fort Myers federal court.

A federal jury found Johnston guilty on four counts of criminally 
dispensing controlled substances after undercover agents posed as 
patients seeking pain medications at her practice, then located at 
599 U.S. 41, Suite 307.

Johnston began serving her sentence July 30 and is incarcerated at 
Coleman federal prison near Orlando. She is due to be released next 
May. Johnston turns 45 today.

Cooper, a Eugene, Ore.-based attorney for the pain group, said 
Johnston's conviction was a debacle because the federal government 
overstepped states' Tenth Amendment right to regulate the practice of 
medicine. Johnston was convicted under the Controlled Substances Act 
for prescribing medications outside the course of a professional practice.

"Essentially the issue is the judge instructed the jury to apply a 
national standard of care that does not exist," she said. "States 
define acceptable standards of care."

The conviction in federal court poses a threat to states' control 
over the practice of medicine and means doctors can be jailed by drug 
agents if the agent disagrees with a physician's practice, Cooper said.

Rather than arresting Johnston and putting her on trial, Cooper said 
the federal government should have gone to the state Board of 
Medicine to let the board decide whether she was practicing outside 
the scope of an acceptable medical practice and take action against 
her license. That's why state medical boards have a panel of 
physicians because they know the standard of care.

"If a doctor practices bad medicine, you take their license away," 
she said. "(This) turns a federal jury into a state medical board."

Assistant U.S. Attorney Doug Molloy, the prosecutor at Johnston's 
trial, could not be reached for comment.

Johnston's sister, Nancy Johnston, of Clearwater, said the case from 
the start has been a great injustice because of the states'-right 
issue and because undercover agents involved lied and at least one of 
the agents admitted on the stand that he lied.

"I have the tapes of what went on in the exams," she said.

"You can't have the government telling doctors what they can and 
cannot prescribe," Johnston said. "Three agents come in with fake 
Blue Cross cards and what was she supposed to do? Does every doctor 
have to think that their patients are lying?"

The pain relief group says the federal government has charged about 
400 doctors for violating federal drug dealing laws within the 
context of their medical practice.

Naples police and the Drug Enforcement Administration began 
investigating Johnston after being told she was prescribing 
painkillers to patients after cursory examinations. Three undercover 
agents posed as patients in June and August in 2007, complaining of 
back or neck pain and received prescriptions for oxycodone, methadone 
and other controlled substances. She was indicted by a federal grand 
jury of illegally dispensing pain medication and was arrested at her 
practice in August 2007.

Johnston's Miami attorney Joel Hirschhorn argued during her trial 
that the undercover agents manipulated Johnston and that they filled 
out patient information forms and she relied on them telling her the 
truth. He also argued the government's case was full of holes because 
a recording device to tape their office visits with Johnston was 
started and stopped a dozen times.

Johnston appealed her conviction to the U.S. Court of Appeals for the 
Eleventh Circuit in Atlanta. The appellate court affirmed her conviction.

Cooper, the general counsel for the pain relief group, said the 
appellate court decision was based on a rule that Johnston could not 
take advantage of an error that was prompted or "invited" by her 
trial attorney.

Cooper said she received notice Monday that the Supreme Court will 
not review the case and the court is not required to provide a basis 
for its decision. She was not surprised because the high court takes 
so few cases but she was disappointed by the decision

She doesn't know if she will represent Johnston in a future appeal, 
which could be for ineffective counsel at her trial.

"I don't know what the grounds will be but that is one of the things 
that comes to mind," she said.
- ---
MAP posted-by: Richard Lake