Prescription Fraud and Doctor Shopping (California Health and Safety Code Sections 11173 and 11153)

 You may think the government’s war on drugs entails police officers barging into drug dens and arresting street dealers. Of course, these arrests still occur, however, the latest battle in our nation’s war on drugs comes against a much less observable threat: prescription drug fraud, also known as "RX fraud".

Some of the drugs that are most commonly involved in these types of crimes are:

• Hydrocodone;
• Morphine;
• Oxycodone;
• Xanax;
• Valium;
• Ambien;
• Adderall; and
• Ritalin.¹

While prescription drugs serve a vital purpose in many medical cases, when consumed in excess, they can be dangerous. Therefore, law enforcement takes a strong stance against prescription fraud offenders.

One way law enforcement has tried to prevent prescription fraud is by stopping “doctor shopping.” Under California Health and Safety Code Section 11173, you cannot obtain or attempt to obtain a prescribed substance by deceiving a doctor or pharmacist.² You also cannot pose as a doctor, pharmacist, registered nurse, or dentist in order to obtain prescription drugs.³

For example, you may be suffering from back pain. To help you deal with the pain, your primary care physician writes you a prescription for Vicodin. Feeling that you need more drugs to manage the pain, you go to other doctors and ask them for prescriptions for other controlled substances. You do not tell these other doctors about your Vicodin prescription or that you have another doctor even when they ask. Therefore, you are able to get multiple prescriptions to multiple painkillers. This is against the law.

Other possible violations of Health and Safety Code Section 11173 include:

• Stealing a physician’s pad and forging prescriptions;
• Using a software program to create fake prescriptions; and
• Changing the quantity of a legitimate prescription.⁴

Doctors are legally responsible to make sure their prescriptions satisfy several conditions. Health and Safety Code Section 11153 says that no doctor in his or her medical practice can order a prescription that is:

• Not in the usual course of professional treatment;
• For an addict or habitual user of controlled substances; or
• For any other medical purpose that is not legitimate.⁵

A violation of Health and Safety Code Sections 11173 or 11153 is a very serious charge. This is why it is critical to contact our attorneys at Wallin & Klarich if you are being accused of this crime.

Punishments for Violating Health and Safety Code Sections 11173 and 11153

Violations of prescription fraud laws under the Health and Safety Code can be charged either as a misdemeanor or a felony. It will come down to the seriousness of your case and your prior criminal history. If you are a doctor, prescribing drugs for illegitimate medical reasons could result in up to one year in county jail and up to $20,000 in fines.⁶

If you are convicted of doctor shopping or otherwise violating Health and Safety Code Section 11173, you could be sentenced to up to three years in state prison for a felony charge. A misdemeanor conviction is punishable by up to one year in county jail.⁷

What the Prosecution Must Prove to Convict You

In order to be convicted of this crime, the prosecution must prove that your alleged crime satisfied several criminal elements. These elements depend on exactly what crime you are being accused of.

For example, if you are being accused of writing a fraudulent prescription for yourself in violation of Health and Safety Code Section 11173, to be convicted the prosecution will try to prove that you:

• Signed someone else’s name to the prescription;
• You did not have authority to sign your name;
• You knew that you did not have the authority to sign your name; and
• You intended to commit fraud when you signed your name.

If a doctor wrote you a legitimate prescription, but you decided to alter the prescribed amount, the prosecuting attorney will attempt to prove that you intended to falsely counterfeit that prescription.

If you are a doctor who wrote a prescription for an illegitimate medical purpose, the prosecution will have to prove that you:

• Wrote the prescription for the controlled substance;
• Knew you were writing a prescription outside the scope of your usual professional treatment; and
• Intended to write a prescription for an illegitimate medical issue and/or for a habitual user of prescribed drug.

Defending Against These Allegations

When charged with a serious crime such as this, you should hire an attorney who can help you prove your innocence. Our team of attorneys at Wallin & Klarich has used some of these defenses to help our clients reach the best possible legal outcome:

• Good Faith: For legitimate medical purposes, a doctor is allowed to prescribe medication to his or her patients as long as he or she acted in good faith. For example, if the patient failed to disclose a medical issue or lied about his or her condition, your attorney can help you prove that you wrote the prescription in good faith.
• Entrapment: In many cases, police officers have posed as patients and set up fake appointments with doctors. The “patient” will then survey the doctor’s prescription-writing practices to make sure he or she is acting in good faith and within his or her usual professional treatment. Police have previously set up surveillance cameras to monitor a doctor’s actions in the clinic. Depending on how the officer who pretended to be a patient acted during his fake appointment, an entrapment defense could be possible in your case.
• Constitutional Rights Violations: If you are accused of these crimes, it is important that a knowledgeable attorney analyzes how law enforcement was able to find evidence against you. We can expose certain unconstitutional methods potentially used by the police in your case. In some cases this can result in your case being completely dismissed.

Frequently Asked Questions

To help you better understand your case and what outcomes you might expect, let’s take a look at some common client questions:

1. Do I face criminal charges for writing the wrong prescription for a patient who lied to me?

Yes, but if a patient lied to you about his or her medical condition in order to have you sign off on prescription medicine, you should not be held accountable. This is where the good faith defense comes in. As long as you were writing a prescription based on the needs that your client expressed and the prescription was within the course of your usual professional conduct, you are not in violation of Health and Safety Code section 11153. An experienced attorney may be able to have your case dropped before charges are filed.

2. If the doctor accidentally wrote me the wrong prescription and I changed it, did I commit a crime?

Yes. Under California Health and Safety Code Section 11173, knowingly changing a legitimate prescription is either a felony or a misdemeanor, depending on your case. It does not matter if you feel that the doctor wrote you the wrong prescription.

3. The police executed a search warrant and found physician’s pads in my home. I am not a doctor. Can I still be found guilty of a crime?

Perhaps. This depends on the factors of your case. If police had a warrant to search your home, they likely had some sort of probable cause. In other words, they may have already obtained evidence that you were writing fraudulent prescriptions.

On the other hand, this may not be a violation of Health and Safety Code Section 11173 if you were not writing prescriptions. However, stealing a physician’s pad can result in other charges such as burglary.

Let the Criminal Defense Attorneys at Wallin & Klarich Help You Today

If you are facing allegations of doctor shopping or prescription fraud, you could face very severe criminal consequences. As a doctor, you may risk losing your license to practice medicine. Our team of attorneys at Wallin & Klarich has over 40 years of experience successfully defending both patients and doctors of these criminal accusations. We can help you obtain the best outcome possible in your case.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our skilled attorneys are available to provide you with the legal guidance you need no matter where you live or work.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

^{1. http://www.justice.gov/dea/druginfo/ds.shtml↩}

^{2. http://law.onecle.com/california/health/11173.html↩}

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^{4. http://www.attorneys.com/drug-crimes/what-is-prescription-fraud/↩}

^{5. http://law.onecle.com/california/health/11153.html↩}

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^{7. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=11001-12000&file=11150-11180↩}