Electronic Medical Records and Federal Criminal Prosecution

Bedside manner.

Bedside manner.

Electronic medical records (or “EMR”) were supposed to be a boon to the provision of healthcare.

As two Boston-area physicians point out, EMR are anything but a benefit:

Electronic medical records, or EMRs, were supposed to improve the quality, safety and efficiency of health care, and provide instant access to vital patient information.

Instead, EMRs have become the bane of doctors and nurses everywhere. They are the medical equivalent of texting while driving, sucking the soul out of the practice of medicine while failing to improve care.

Read the whole article: Death By A Thousand Clicks: Leading Boston Doctors Decry Electronic Medical Records

We'll be right with you.

We’ll be right with you.

The additional problem for healthcare professionals is that EMR systems often auto-populate fields from the last patient visit (or even from the first patient visit).  In busy clinical practices, such systems can create technically inaccurate records that do not diminish patient care but, three years later and blown up on a courtroom monitor, can be used by the Government in a criminal prosecution under a “medical necessity” theory under Medicare or a prescription-based “not for a legitimate medical purpose” theory under the Controlled Substances Act.  (A physician may legally “dispense” controlled substances but, if he or she does so without a legitimate medical purpose or not in the usual course of his professional practice, he or she may be criminally prosecuted under the CSA.)

An EMR trial.

An EMR trial.

On the latter point, consider our White Collar Law 360 article:  Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct.

In particular:

Physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.

 


Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct

 Balance in the law?

Balance in the law?

Criminal laws are supposed to give persons regulated by the law sufficient notice of what conduct, exactly, is prohibited.  Criminal laws, as interpreted by courts, are also supposed to provide clear standards for mens rea (that is, the level of intent the Government must prove at trial).  With regard to physicians and their prescribing practices, the federal Controlled Substances Act does neither.

Or, as my Lightfoot colleagues Brandon Essig, Jeff Doss and I put it in a recent article for Law 360:

With the Eleventh Circuit’s recent decision in United States v. Enmon, physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.

And my mens rea is unknown, too.

And my mens rea is unknown, too.

Read the entire article: Questioning The Controlled Substances Act After Enmon