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Penalties and legal defenses of contributing to "doctor shopping: for a controlled substance without treatment

If accused of violating the California Health and Safety Code 11154, there may be a few possible defenses one may exercise. Unlike prescribers that are wilfully and intentionally writing prescriptions for controlled substances to friends, family members, or even themselves, there may be those that inadvertently or simply did not craft a script for a patient that was either “doctor shopping” or not receiving treatment services.

There are many examples of prescriptive authorities prescribing controlled substances without seeing the patient, doing a friend or family member a favor, or prescribing to self. Dr. Feelgood is approached by a family member at their weekly Sunday dinner. Their family member (sister) indicates that her husband (your brother-in-law) has been experiencing auditory and visual hallucinations, but because they do not have health insurance, they have not sought out medical/psychiatric care. You are asked if there is anything that you can do to help their family, as it has become more difficult to function and they are very afraid due to unpredictable and paranoid behavior. You decide to prescribe an antipsychotic to assist your brother-in-law manage his symptoms. There are two possible violations here: treating a family member and treating a person that is not your patient.

Now, there are; however, possible legal defenses to such alleged conduct. First, the prescribing authority simply prescribed the controlled substance by accident and it was an oversight or data entry error. Second, an examination had, in fact, been provided and the documentation was not entered into the electronic or paper medical record. Finally, the prescribing authority was entrapped. Perhaps a patient indicated that they lost their medication or it was stolen from their home or place of employment and you were deceived into ordering a refill.

If you find yourself falling outside any of the aforementioned legal defenses and are facing possible prosecution and sentencing, it is important to note that this is a “wobbler” offense, meaning it may be charged as a misdemeanor or a felony. In cases where one is convicted of a misdemeanor, the maximum penalty is up to one-year in jail and/or a $20,000 fine. However, where charged and convicted as a felony, one may face up to three years in a state prison.

Alternatively, patients that knowingly withhold information from a medical practitioner in order to obtain a controlled substance may also be in violation of the law and have the burden of proof that they fully disclosed their reasons for treatment and the subsequent need for the controlled substance. It is important to note; however, that this statute applies (for prescribing authorities and patients) based upon disclosure requirements, timeframes and the types of drugs prescribed.

Regardless of the classification of the offense, it is important that you seek the assistance of competent legal counsel to help you best understand your legal defense while identifying an outcome that best minimizes your risk. We here at the H Law group patiently await your call.

H Law Group Online

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