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Open in new tab By Michael R. Mancinelli, Lead Articles Editor and Co-Online Editor
A new Supreme Judicial Court (“SJC”) ruling issued this week in Commonwealth v. Stirlacci offers a cautionary tale for solo-practitioners in Massachusetts. Doctors may be subject to criminal liability under the state’s Controlled Substances Act for instructing office staff to renew patient prescriptions for painkillers using forms pre-signed by the doctor, when the doctor is unavailable.
The decision by Associate Justice Barbara Lenk reviewed whether a Hampden County grand jury had probable cause for indictments of Dr. Frank Stirlacci and his office manager, Jessica Miller. Faced with statutory provisions not clearly defining wrongful conduct under the Controlled Substances Act, the SJC used the opportunity to articulate new criminal standards for improper prescribing (M.G.L. chapter 94C, section 19(a)) and uttering a false prescription (M.G.L. chapter 94C, section 33(b)).
According to evidence presented to the grand jury, Dr. Stirlacci, a solo-practitioner with offices in Springfield and Agawam, allegedly authorized his office manager, Miller, to issue prescriptions for several weeks in 2015 while he was jailed for contempt of court in Kentucky for delinquent spousal support payments.
Phone call transcripts presented to the grand jury showed that Dr. Stirlacci was concerned about his practice’s cash flow during his incarceration. He was also worried about how his patients would get their medication. In light of these concerns, he allegedly instructed Miller that if a patient sought a prescription renewal she should issue it using his pre-signed prescription forms and then submit a claim to the patient’s insurance company. Miller followed Dr. Stirlacci’s instructions and some of the prescriptions she issued were patient renewals for controlled substances including hydrocodone, oxycodone, fentanyl, and methadone. Dr. Stirlacci never actually saw these patients before Miller issued these prescription renewals. Miller was not a medical practitioner.
Following an investigation, Dr. Stirlacci and Miller were both indicted on multiple counts of improper prescribing, uttering false prescriptions and submitting false health care claims. A Superior Court judge dismissed the indictments against both defendants for improper prescribing and uttering a false prescription. After analyzing evidence presented to the grand jury, the SJC remanded the case and held that prosecutors could only proceed with the Commonwealth’s claim against Dr. Stirlacci for improper prescribing and charges against Stirlacci and Miller for submitting false health care claims. The Court dismissed all other charges.
Considering the ever-present opioid epidemic, both local and national, and public perception about the role of doctors in fueling that crisis, Massachusetts doctors and in-house counsel for healthcare systems should take note of the new standards for conduct outlined in Stirlacci and discussed as follows.
Improper Prescribing
In Stirlacci, the court noted that under the Controlled Substances Act a practitioner who writes an invalid prescription is subject to criminal liability. The applicable statute, M.G.L. chapter 94C, section 19(a) states that a valid prescription must “be issued for a legitimate medical purpose by a practitioner acting in the usual course of [their] professional practice.” But the statute does not explicitly define a standard for what constitutes improper prescribing.
In response, the SJC parsed the language of the statutory provision and defined “legitimate medical purpose” as a “genuine or lawful medical intent or goal.” T he Court further said that “usual course of professional practice” means the routines customarily expected in the context of the medical profession. Additionally, the court said that the two phrases are not separate elements but mutually reinforcing concepts – if a prescription lacks a legitimate medical purpose it has been issued outside the usual course of professional practice.
Based on these two definitions, the Court provided two factors to determine if a practitioner has engaged in improper prescribing: (1) whether the practitioner’s intent is not related to a genuine medical objective; and (2) the degree to which the practitioner’s conduct deviates from “generally recognized and accepted medical practices.” The court emphasized that the practitioner’s intent is the distinguishing factor between malpractice and criminal conduct.
Ultimately, the Court held that where the Commonwealth can establish that a practitioner issued a controlled-substance prescription for a purpose other than genuine medical treatment, the practitioner may be found guilty of improper prescribing. It said that:
A prescription is not issued for genuine medical treatment where a practitioner fails to exercise medical judgment in a manner consistent with the basic routines associated with such medical treatment. Because mere malpractice does not constitute improper prescribing, a practitioner who errs despite a good faith effort to diagnose and treat a patient has not violated the statute.
Given the evidence presented to the grand jury, the Court said that there was probable cause to indict Dr. Stirlacci. There was evidence that one of his motives for authorizing his office manager to issue renewal prescriptions was to maintain positive cash flow. Additionally, the court said, the grand jury could have inferred that he did not know which specific patients received the renewal prescriptions and that he issued the prescriptions without exercising individualized medical judgment. Because Dr. Stirlacci did not ascertain whether the renewal prescriptions remained appropriate courses of treatment, there was probable cause that the prescriptions were not issued for a legitimate medical purpose in the usual course of professional practice.
While the Court held that the grand jury properly indicted Dr. Stirlacci, it further held that the Commonwealth cannot prosecute Miller directly under chapter 94C, section 19(a) because her role as office manager did not fall under the statute’s definition of a practitioner. The statute does not subject nonpractitioners to liability. Furthermore, the Commonwealth could not prosecute her as an accessory either because criminal liability under the statute turns on the exercise of medical judgment – which she could not exercise in her capacity.
Uttering a False Prescription
The SJC also provided guidance as to what constitutes uttering a false prescription under M.G.L. chapter 94C, section 33(b). The statute prohibits “utter[ing] a false prescription for a controlled substance,” and “knowingly or intentionally acquir[ing] . . . possession of a controlled substance by means of forgery, fraud, deception or subterfuge.”
Because the statute fails to define “false prescription,” the Court said that a prescription is false when it lacks genuine authorization, such as when a person issues a prescription with fake credentials or borrows another practitioner’s genuine credentials without that practitioner’s involvement or consent. A “false prescription” is one that falsely purports to have been issued by an authorized practitioner. A person utters a false prescription by deliberately issuing a prescription that appears real but was not actually issued by the practitioner named in the prescription.
The Court said that neither Dr. Stirlacci nor Miller deliberately appropriated false prescribing authority. Even though Miller altered the prescriptions, there was no evidence that she believed she was exceeding the bounds of the doctor’s authority to issue such prescriptions. She merely filled in a form with the doctor’s signature on it and the prescriptions were for ongoing treatment.
Submitting False Health Care Claims
Finally, the Court held that there was sufficient probable cause for the grand jury to indict both Dr. Stirlacci and Miller for submitting false insurance claims to patient insurers concerning the controlled substances prescriptions. M.G.L. chapter 175H, section 2 prohibits knowingly and willfully making a false statement or misrepresenting a material fact in an application for payment of a health care benefit. Summarizing the court’s reasoning, there was evidence for the grand jury to infer that both Dr. Stirlacci and Miller knew that Dr. Stirlacci did not actually perform the services they had billed to the insurers.
Analysis of the Decision
Following this decision, Hampden County prosecutors may prosecute Dr. Stirlacci for improper prescribing and submitting false health care claims in Superior Court. Prosecutors may also pursue the Commonwealth’s case against Miller for submitting false health care claims.
The cautionary tale here for doctors is that courts will not tolerate conduct involving opioids that skirts the law in the name of administrative convenience, or securing a medical practice’s cash flow. While Stirlacci explains the kind of conduct that constitutes improper prescribing and uttering a false prescription, by inverse the case also implies a physician’s duties under the Controlled Substance Act to avoid criminal liability. Doctors must ensure that any prescriptions they issue for opioid-based painkillers are issued for a genuine medical treatment. Making that determination will require doctors to exercise medical judgment based on an actual medical examination of the patient. Here, based on the grand jury evidence summarized in the decision, Dr. Stirlacci could not exercise medical judgment when issuing these prescriptions because he did not individually examine the patients. Furthermore, there was no indication that he conferred with his office manager about each individual prescription renewal. In short, it was impossible for Dr. Stirlacci to exercise medical judgment from a jail cell.
At a minimum, doctors who are unavailable should not authorize office staff to fill in pre-signed prescriptions forms for opioid-based painkillers. Following this decision it would be good practice for Massachusetts doctors to avoid pre-signing prescription pads altogether. But Doctors must be especially cautious when issuing opioid prescriptions. Before renewing a script for an opioid-based painkiller, doctors will likely need to physically visit with a patient. To some extent this is a strict standard for doctors of long-time patients with legitimate, chronic pain, who need opioid-based painkillers just to get through their day. It may be enough for these doctors to renew prescriptions without a physical visit so long as they exercise medical judgment by reviewing the patient’s medical history in-depth and then document their justification for the renewal in the medical record. Still, doctors should remain cautious.
There is no indication from the decision that Dr. Stirlacci’s practice was engaged in any criminal conduct beyond the allegations presented to the grand jury and summarized in the decision. There are no facts in the decision which indicate his practice was a “pill mill” engaged in the illegal drug trade – only that his office issued renewal prescriptions for opioids to existing patients. During oral arguments the court distinguished renewal prescriptions (when a previous prescription has expired) from prescription refills (for example, one prescription for a three months supply automatically refilled each month). So all of the patients receiving renewals were patients whose existing prescriptions had expired. There is no indication that Miller wrote out any painkiller prescriptions for new patients that the doctor had never seen before. From all of this it is apparent that Dr. Stirlacci’s situation sheds light on the challenges facing solo-practitioners in Massachusetts.
When a solo-practitioner faces some kind of incapacitation, whether it be health or family related, or, like Dr. Stirlacci, a result of incarceration, they do not have the same widespread administrative of financial support that a doctor practicing with a large healthcare organization like Partners, or Steward Medical, or Tufts would enjoy. The solo-practitioner is solely responsible for the health and well-being of patients, and their practice’s economic vitality. Without a backup plan to have other doctors sign his patient’s prescriptions during his absence, it appears Dr. Stirlacci did what he could to try to keep his practice afloat and continue treatment for his patients. The decision indicates some conflict with Dr. Stirlacci’s nurse practitioner who apparently disagreed with Dr. Stirlacci and Miller’s conduct. At the same time it is odd that Dr. Stirlacci apparently elected to have his office manager, Miller, fill out pre-signed prescriptions rather than have his nurse practitioner issue the prescriptions under her authority.
Still, the inescapable fact remains here that based on the phone transcripts cited in the decision, Dr. Stirlacci authorized Miller to submit insurance claims to bill for the act of writing prescriptions that he never actually wrote on his own. That type of conduct is sure to raise red flags.
The SJC heard oral arguments in Commonwealth v. Stirlacci on Thursday, September 5, 2019. Click here to watch video of the proceedings available on the Suffolk University Website.
Sources
https://www.mass.gov/files/documents/2020/01/08/d12735.pdf
https://boston.suffolk.edu/sjc/pop.php?csnum=SJC_12735
https://www.masslive.com/news/2017/11/judge_says_he_recognizes_opioi.html
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter94C
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3030470/
Michael Mancinelli is 3L day student at Suffolk University Law School and the Journal of Health & Biomedical Law’s Lead Article Editor responsible for procuring scholarly articles from professors, judges, practicing attorneys, and healthcare professionals for publication. He is also a co-online editor of JHBL’s website and blog. Michael clerked at Karsner & Meehan, PC, a personal injury and workers’ comp law firm in Taunton, MA and interned at New Bedford District Court. Before law school, Michael worked for 4.5 years as a paralegal at Conway Homer, PC, a Boston firm that specializes in vaccine adverse reaction litigation. As an undergraduate, Michael majored in broadcast journalism at Suffolk University and covered high school sports for the Boston Globe as a correspondent. He has volunteer-coached football at his high school south of Boston since 2009. Michael is interested in personal injury litigation, criminal law, municipal law, and public policy. Michael may be reached at mrmancinelli@suffolk.edu.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.