[UPDATED] A doctor has raised an interesting legal challenge to his indictment in an alleged conspiracy with 10 other men to sell as much as $125 million in prescription drugs illegally over the Internet. Can a licensed physician be criminally liable for issuing prescriptions to patients based on their reported symptoms, without a physical exam or follow-up care?
Dr. Joseph Carozza asked a federal judge in San Francisco to dismiss charges that he conspired to distribute drugs without establishing a legitimate medical purpose for the prescriptsion. In fact, the alleged conspiracy was between 2004 and 2006 – before passage of in 2008 of Ryan Haight Act, which for the first time made it a crime to issue an online prescription without a prior in-person exam, says the defense.
“Though cloaked in the trappings of familiar federal drug laws, the government’s case against Dr. Carozza rests on little more than the federal government’s views about acceptable medical care,” said Josh Cohen, attorney for Carozza. Cohen argues that the indictment “fails to state a crime.”
He argued it is nothing more than a malpractice claim against the doctor, and that is not criminal.
Unfortunately, Judge Charles Breyer was not buying it.
“This was a big red flag to me at the beginning of this case,” Breyer began. “I am more convinced after reading the cases that that is not what the government is saying.” Breyer said the government will have to prove a litany of things that show improper conduct by the doctor, then it will be up to jurors to decide.
He rejected the Carozza’s motion to dismiss the charges. With Breyer’s rejection in place, two other defendants waiting in the wings agreed to plead guilty.
Savatore Lamorte, 52, of Freehold, New Jersey, pled guilty to nine counts of conspiracy to supply prescription drugs without showing a legitimate purpose for the drugs and money laundering. He agreed to cooperate and testify in the January trial against other defendants in exchange for a reduced sentence.
He also had to agree to forfeit his Maserati.
Darrell Creque, 60, of Clayton, NC also pled guilty to three counts of conspiracy to distribute prescription drugs without legitimate purpose.
The case grew out of an international investigation of illegal Internet pharmacies that began in 2005, according to U.S. Attorney Melinda Haag, in San Francisco.
Federal prosecutors originally accused 11 men of operating three conspiracies to sell prescription drugs illegally over Internet websites. One of the 11, Steven Paul, of Arizona, fled to Cyprus and died on
September January 14, 2011, while extradition proceedings were still pending.
The indictment charges that the men sold $22 million in prescription drugs improperly through Safescripts Online between 2004 and 2006. The second alleged conspiracy, known as the Pitcairn conspiracy allegedly involved five of the 11 and they purportedly sold $55 million in prescription drugs without legitimate purposes and allegedly laundered the money.
Finally, the government alleges that between 2006 and 2008 three of the defendants conspired to distribute $48 million worth of prescription drugs without showing a legitimate purpose and money laundering.
Named in the Safescripts case were Lamorte, Creque, Carozza, 65, of Garden City, N.Y.; Christopher Napoli, 44, Newtown Square, PA; Daniel Johnson, 38, of Pekin, Ill; Jeffrey Herholz, 43, Fayetteville,NC and Jeffrey Entel, 40, Dominican Republic.
In the alleged Pitcairn conspiracy the government named Michael Arnold, 40, Boca Raton, Fla; Diego Podolsky Paes, 29, Brazil, Lamore, Herholz and Creque.
And in the alleged United Mail Pharmacy Services conspiracy, the government named Entel and Dino Antonioni, 42 of Miramar, Fl.
Case: U.S. v. Napoli, CR10-642CRB (N. Dist. of Calif.)