The Pain of Pill Mills: Overcharging for Overdistributing
By Margot A. Moss
Because of previous lax laws and oversight, pain clinics spread through Florida like pythons invading the Everglades. Clinic owners took advantage of the loose restrictions and set up shop all over the state. Doctors ordered and prescribed oxycodone like candy. While other states closely monitored doctor-shopping and prescription drug distribution, clinics in Florida operated with abandon, leading to the state’s nickname “Oxy Express.”
Then, after being embarrassed by national news headlines, Florida changed its tune and headed in the opposite direction. Law enforcement officers throughout the state started rounding up doctors (both good and bad), and prosecutors began charging them with the most extreme of offenses – drug trafficking – which mandate absurdly long sentences.
But, are prosecutors responding to the brutal media attention by overcharging defendants? Is drug trafficking the right charge? Established Florida precedent demonstrates that it is not. A long-recognized legal canon known as the specific/general doctrine provides that a specific statute addressing a specific subject matter controls over a statute generally covering the same or related subject matter. Adams v. Culver, 111 So.2d 665 (Fla. 1959). So, in the pill mill scenario, a specific Florida statute that addresses doctors who issue prescriptions without a medical necessity has control over a state law prohibiting the general possession, sale and/or delivery of trafficking amounts of controlled substances. Accordingly, the state is improperly charging practitioners with violations of the general trafficking statute. Instead, doctors should be charged with violating the law directed specifically at practitioners writing prescriptions in bad faith – an offense that is still a felony, but not as excessive as the trafficking charge.
The earlier general law of trafficking was enacted in 1979, long before the danger of prescription drug diversion was brought to the attention of the legislature. That general statute provided then, as it does now, that “[a]ny person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of . . . oxycodone . . . commits a felony” which shall be known as drug trafficking. Fl. Stat. § 893.135 (emphasis added). This statute, of course, applies to all persons generally.
In 1979 after the passage of the trafficking statute, the Florida Supreme Court notably stated that “[s]ection 893.13 . . . which defines ‘prohibited acts’ under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance outside the course of his professional practice.” Cilento v. State, 377 So. 2d 663, 665-66 (Fla. 1979). Equally, no other law at the time explicitly covered doctors acting beyond the bounds of their oath. Therefore, a doctor could be convicted then of the general sale or delivery of a controlled substance by writing a prescription in bad faith. This, however, is no longer the case.
In 2002, a specific statute, § 893.13(8)(a), was enacted expressly to address the legislature’s concern regarding physicians enabling prescription drug abuse. It is apparent that the legislature intended that this specific statute dealing with practitioners and prescription drugs should address the growing problem of the overdispensing and unnecessary delivery of prescription medication. The Florida Senate State Analysis for the Bill indicated that enactment of the law would result in the creation of: New offenses . . . that prohibit a prescribing practitioner from: knowingly assisting a patient . . . in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practice of the prescribing practitioner’s professional practice; employing a trick or scheme in the practice of the prescribing practitioner’s professional practice to assist a patient . . . in obtaining a controlled substance; knowingly writing a prescription for a controlled substance for a fictitious person; or writing a prescription for a controlled substance for a patient . . . if the sole purpose of writing such prescription is to provide a monetary benefit to, or obtain a monetary benefit for, the prescribing practitioner.
As a result of the passage of this new offense, specific subsection 893.13(8)(a) prevails over the general trafficking law.
At least one Florida judge has agreed with this reasoning and concluded that the state is overcharging in these cases. Judge Richard Oftedal in the Fifteenth Judicial Circuit recently dismissed multiple trafficking and racketeering charges against a doctor in Palm Beach who practiced at a pain clinic. Judge Oftedal examined the two statutes at issue: the general drug trafficking statute charged by the state and the specific statute proposed by the defense. The judge found that before the enactment of the specific statute, doctors that allegedly dispensed large amounts of controlled substances could be charged with drug trafficking. However, after 2002, the legislature “clearly and explicitly” changed the law. Consequently, the overcharged offense against the doctor had to be dismissed.
Following the wisdom of Judge Oftedal, legislative intent, and the specific/general doctrine, § 893.13(8)(a) is the exclusive means of prosecution for the offense of doctors issuing bad prescriptions in pill mill cases. This is what prosecutors should be charging, instead of overreaching in response to political pressure.
Margot Moss is a criminal defense attorney, and partner at the law firm of Markus & Markus PLLC in Miami Florida. Moss is admitted in the state courts of Florida and North Carolina as well as the United States District Courts for the Southern and Middle Districts of Florida. She is an active member of several professional organizations, including the National Association of Criminal Defense Lawyers, the Florida Association of Criminal Defense Lawyers, the Asian-Pacific American Bar Association of South Florida, the Dade County Bar Association, the Federal Bar Association, and the Florida Association for Women Lawyers.
South Florida Legal Guide Midyear 2012 Edition
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