Death by fraud: Raising the stakes of prescription drug charges

At its core, fraud is a financial crime. The impact is measured in numbers and figures preceded by dollar signs, with losses that reach tens of billions of dollars.

Prescription drug fraud makes up a sizeable portion of those billions. Last year, the Office of Inspector General (OIG) reported that Part D spending on drugs had increased 136 percent from 2006 to 2014, making the steady climb to $121 billion. Six percent of that spending was linked to controlled substances, including Schedule II and Schedule III opioids.

In fact, within Part D claims, opioid prescribing grew 156 percent over the same time period, and according to the OIG, a sizeable portion of those prescriptions were born out of pharmacy-related fraud schemes.

This spike in prescription drug spending coincided with the steady growth in opioid addiction that has reached a full-blown epidemic. In 2014, nearly 19,000 people died of an overdose related to prescription pain relievers, more than four times the number of opioid-related deaths reported in 1999, according to the Centers for Disease Control and Prevention.

When you set those statistics side-by-side, it's not terribly difficult to make the leap from the financial damages of prescription drug fraud to the overwhelming loss of human life. By 2012, there were enough opioid prescriptions for every adult American to have his or her very own bottle of pills. Some of those were appropriately and legally prescribed, but many weren't, which only helped to feed the epidemic.

Increasingly, federal and state prosecutors are making that same leap, raising the stakes of prescription fraud to more serious charges like manslaughter, reckless homicide and murder.

This trend has developed over the last decade, despite significant legal setbacks for government prosecutors. Since 1999, prosecutors have tried several times to pin murder charges on high-prescribing physicians with little success. Several high-profile cases were either thrown out or the physicians were acquitted of murder charges, even when other fraud or conspiracy charges stuck. The closest they came was in 2014, when an Oklahoma doctor pleaded guilty to eight counts of second-degree murder, but received just one year in prison  for each, according to the Associated Press.

The tide may have turned last year. In what many saw as a landmark case, former California physician Hsiu-Ying "Lisa" Tseng was convicted of second-degree murder and later sentenced to 30 years to life in prison for inappropriate painkiller prescribing.

"You can't hide behind a white lab coat and commit crimes," Deputy District Attorney John Niedermann told the AP after the jury's decision in October. "Writing a prescription to someone knowing that they're going to abuse it and potentially die was the theory of second-degree murder that we had."

Of course, just a month before Tseng's conviction, Florida physician Gerald Klein was acquitted of second-degree murder charges linked to the overdose death of one of his patients, according to the Palm Beach Post, proving just how variable these charges still are, and how juries view death-by-prescribing. 

There's an ongoing debate, notes the New York Times, about how doctors should be prosecuted for prescribing schemes that seek profits over medical care to the point of death. It's a debate that's representative of the gray areas we're all still wading through when it comes to pain treatment and opioid addiction. When epidemics like this enter the public consciousness, we all search for someone within reach to blame. 

But there's no question discussions about opioid addiction have infiltrated every corner of the country, bringing unprecedented levels of awareness.That means prosecutors are more willing to view opioids as a weapon and explore new legal territory in cases in which overprescribing is linked to patient deaths.

A perfect example: Last week, Alabama prosecutors brought new charges against two physicians ensnared in last year's four-state sting dubbed "Operation Pillution" that led to more than 300 arrests. The physicians were already facing a bevy of fraud and conspiracy charges, but nearly a year after their arrests, a superseding indictment linked them to the deaths of four patients.

The four new counts, filed as distribution of a controlled substance, each carry a sentence of 20 years to life, twice as much as the 10-year maximum sentence that accompanies the healthcare fraud conspiracy charge.

Just like that, prosecutors took a run-of-the-mill fraud case, and raised the stakes significantly higher. - Evan (@HealthPayer)