Fighting the abuse of ­prescription medications

Prescription drug abuse is a serious epidemic in our state. It not only causes fatalities from overdoses, but intoxication from prescription drugs also leads to numerous intoxication assaults and manslaughters each year. Texas’s method for tracking the abuse of prescription drugs is seriously flawed, as many counties do not accurately track statistics.
    Drug diversion is the process of diverting legal prescription drugs to illegal use. One of the most common cycles of diversion goes something like this: A crew leader recruits several people called “doctor shoppers.” The leader takes the shoppers to clinics, “pill mills,” where shady doctors or physician assistants write prescriptions without proper treatment or diagnosis. Once they obtain the prescriptions, the shoppers fill them at equally dishonest pharmacies and give the pills to the crew leader, who diverts them to the street. The shoppers are paid in cash or pills.
    Drug diversion creates issues in the community and problems for law enforcement. Many officers aren’t trained in properly detecting signs of intoxication from prescription drugs when they investigate DWIs, and many prosecutors aren’t trained to accurately check the prescriptions defense attorneys might offer (as an explanation for their clients’ intoxication while driving) and are dismissing the cases when the script might have been for a completely different substance. As drug abuse evolves, so must our strategies for fighting it. We must not treat drug DWIs as less important than those involving alcohol or solely charge controlled substance abuse on the street level against the abuser or dealer. We must take the opportunity to hold doctors and pharmacies accountable as well. The only effective strategy to solving a problem is a far-reaching one.
    In Montgomery County, I was asked to take on the responsibility of managing our drug diversion initiatives. At the time, we had several pending cases against pill-mill doctors that were all working their way to pleas—there had always been hesitation to try these cases because of their complexity and our not knowing how juries would react to them. But two years ago, the Conroe Police Department’s Narcotics Division brought our office a case that sounded like it had potential to go to trial as a perfect test case, and I worked with the police department from beginning to end. Multiple agencies worked hard to put together a great case over the course of the last two years.

The Woodlands ­Diagnostic Clinic
Conroe PD, with help from the Drug Enforcement Agency’s (DEA) Houston Tactical Diversion Squad, had identified The Woodlands Diagnostic Clinic as a potential source of drug diversion based on complaints from the community, information from a confidential informant, and information gathered from organized traffic stops of “patients” leaving the clinic. Undercover recordings showed that patients at the clinic were seen by Dr. Joseph Vadas and that the clinic was operated by the doctor’s brother-in-law, Luis Espinola; sister-in-law, Laura Espinola; and wife, Martha Vadas.
    Research into the drugs prescribed by the clinic gave us probable cause to believe that the majority of its patients were prescribed opioids, benzodiazepines, barbiturates, or carisoprodol. These drugs are considered pain medication according to §168.101 of the Texas Occupations Code, and a clinic that prescribes those medications to a majority of its patients must obtain a certificate from the Texas Medical Board. This clinic had not obtained such a certificate. Section 165.152 of the Texas Occupations Code makes it a third-degree felony to practice medicine in violation of subtitle B, which includes the pain management registration requirements.
    Using this and additional information, we obtained a warrant to search the clinic and the residences of both families. Thousands of patient files were taken along with business records, computers, patient logs, bank records, receipts, and other information. Investigators scanned every page of the patients’ files to create a database showing which patients received what drugs each month the clinic was in business, which had been less than a year at that point. Only one patient among thousands was found to have been treated by any means other than prescription pain medication.
    Suspect interviews and the clinic’s accounting records showed that Dr. Vadas and his wife split the profits equally with their business partners, Luis and Laura Espinola. Undercover video revealed that Luis Espinola was acting as a nurse and office manager. After asking what drugs they were looking for, he would routinely tell patients what pharmacies they needed to go to. He would even tell them which particular pharmacist to talk to in order to avoid suspicion. Laura Espinola worked the front desk, took payments, and managed the records. Martha Vadas, the doctor’s wife, sat next him and told him what drugs the patient was asking for and what prescriptions to write. (We learned later that Dr. Vadas was in the early stages of dementia at the time.) The doctor made no diagnosis, nor did he conduct any physical exam (outside of an occasional blood pressure check by Luis). In light of all of this evidence, we decided to charge all four individuals with engaging in organized criminal activity, enhancing the charge to a second-degree felony.
    While the charges were pending and we were heading to trial, Dr. Vadas passed away, leaving the remaining defendants with the perfect defense: “The doctor did everything and we had no idea what was going on!” Of course, the thought crossed our minds to let the case go because of the difficulties we would face in proving that the remaining defendants knew about the technical requirements of registering as a pain clinic, but we decided to look a little further before abandoning it altogether.
    We eventually learned of the doctor’s medical conditions and that people close to him believed his wife and in-laws were manipulating him, that he was not the mastermind behind the operation after all. We spoke to one of his daughters in Canada and learned that her husband had witnessed Martha and Luis sitting down with dozens of patient files and forging the doctor’s signature on all sorts of documents, including prescriptions. But a call to his niece in Hungary proved the most fruitful for our current situation. After the three defendants were arrested, she had spoken to her uncle Luis by phone and recorded the conversation. On the recording, Luis admitted that they knew all along that the clinic needed to be registered as a pain management clinic but that they had neglected to do it. With that information, we went to trial.

Taking it to court
The subject matter in this case was daunting. The law is complicated and our facts were a spider web of information. Not only did we have to make the jury care about diverting prescription drugs to the street, but we also had to simplify the law to make it understandable. In all honesty, when I first sat down with the statute, I found the law to be about as complicated as I have ever seen or could ever dread to see again. But I quickly realized that it was only as complicated as I wanted to make it. It really came down to explaining it to the jury like this: The prosecution had to prove that the defendants engaged in organized criminal activity by aiding Dr. Vadas in the practice of medicine by operating a pain management clinic without a pain management certificate.
    In addition to proving this more simplified charge, I still had to make jurors care. We began by presenting the lead investigator, Randy Sanders with Conroe PD, who explained why he initiated the investigation. Officer Sanders explained the damage the clinic was doing to surrounding businesses, whose parking lots were overrun by people seeking prescription drugs illegally. He testified to how the diversion cycle operates and the damage it does to the community. The jury heard about how most of the “patients” weren’t even from our area, with many coming from Oklahoma and Louisiana.
    Next we brought in three undercover officers from the Texas Department of Public Safety who acted as our undercover “patients,” in addition to a formerly confidential informant. The informant and the undercover officers had been able to record their entire visits to the clinic, and the jury watched the videos of Martha telling Dr. Vadas what to do and what prescriptions to write. They saw Dr. Vadas ask the “patients” what they were there for and then write prescriptions after maybe pressing once or twice on their backs. Any layperson watching the videos could clearly tell this place was shady. The best witness in this group was the confidential informant, who began assisting the narcotics division after successfully beating his addiction. He spoke about his original prescription abuse problem and his former involvement as a runner in a crew. He knew the drugs’ street values and the runners’ practices that laypeople couldn’t see; he also pointed out to the jury that criminals on the streets identified this clinic as a pill mill.
    After the videos, we jumped into the case’s technical aspects by proving ownership of the clinic through the leasing agent and its lack of license through the medical director of the Texas Medical Board. The leasing agent testified how Luis was the one who originally leased the building and that his name was on all of the documents. The medical director explained the pain management laws and why the requirement is there in the first place: to make sure that pain clinics are properly prescribing pain medicine to reduce the risk of abuse.
    We were fortunate enough to receive many offers from experts who were willing to volunteer their services in this type of case. We chose one doctor who was an expert in pain management. She was absolutely appalled after watching the undercover videos and reviewing the clinic’s records, and her disgust came through on the stand. Her testimony was essential to show the illegitimacy of the clinic’s operations, and she helped to convince the jury that this clinic was so underhanded that there was no way that the defendants could claim ignorance.
    Next we brought in a diversion investigator from the DEA. Her role in the investigation was to go through all of the patient files, create a spreadsheet, and determine the percentage of patients who received pain medication. In addition to presenting the numbers, her testimony explained how corrupt pain management clinics evade detection and the tricks that this particular clinic attempted to use. For example, many clinics believe that by writing a prescription for a non-controlled substance along with a hydrocodone prescription, they somehow avoid suspicion. This clinic would include a prescription for ibuprofen along with hydrocodone and alprazolam. She explained that when DEA agents would visit pharmacies involved in these schemes, agents would find giant rooms stacked with ibuprofen that the pharmacies would order to help avoid suspicion too. When she was finished, the jury had an amazing picture of the problem and was pumped up to be part of the process of shutting it down.
    Finally, we concluded with the family. Dr. Vadas’s son-in-law’s testimony was very compelling to link the family to the shady operation. The description he gave of Luis and Martha working together to sign files and prescriptions went a long way toward sealing the deal. But Dr. Vadas’s niece and the recording she made of her phone conversation with Luis was so powerful that we let it be our last piece of evidence. We flew her all the way from Uruguay (where she had recently relocated from Hungary) to play it for the jury. In closing, I played several times the recording of Luis describing how he knew the clinic wasn’t registered.
    The jury quickly returned a guilty verdict against all three defendants. To their credit, the defense did an amazing job marching in witness after witness in the punishment phase of trial. From church members attesting to their religious devotion, to relatives who relied on the defendants for their cancer care, to kids who cried and told the jury how they couldn’t go to college if their parents went to prison, the jury was left with a hard decision. Ultimately, jurors decided to put the defendants on probation.
    But such a sentence doesn’t change the need to try these types of cases. We are ready to combat such a defense next time. In this case, we had felt like the sheer number of pills that hit the street because of this clinic would be enough to secure a prison sentence. Detective Gerrit Wolfhagen testified about the street values of the drugs that this clinic prescribed and that their effects were comparable to heroin. In the future, a more effective strategy may be to also bring in families of those who have overdosed or have become addicted to drugs because of this doctor.
     This trial had more issues than probably all of my other trials combined. We had concerns about international wiretapping laws, confrontation (when trying three defendants at the same time), wording an indictment when piecing together several statutes to create an offense that isn’t specifically enumerated, dealing with Spanish and Hungarian translators, giving three defense attorneys an opportunity to gang up on one team of prosecutors—the list could go on and on. All of these things piled on to an already complex case, but in spite of it all, I would do it again in a heartbeat. I hope other Texas prosecutor’s offices consider looking into the problem of prescription drug diversion as well. I’ve composed a sidebar (“Preparing for the fight”) on page 31 to offer direction and a starting point for tackling such a case in your own jurisdiction.

SIDEBAR

Preparing for the fight
Shutting down pain management clinics is just one step in the right direction. Dirty pain doctors, pharmacists, crew leaders, runners, and doctor-shoppers must all be held accountable and either punished or otherwise corrected. The law can be confusing, so I will briefly outline the most effective legal tools for each type of case.

Shady pain management clinics
Sections 165.151–.152 of the Texas Occupations Code make it a criminal offense to practice medicine in violation of the rules of the board or in violation of various statutes within Title 3, Subtitle B of the code. The rules of the board are numerous, but one of the most common is Rule 170.3, which requires that pain management agreements between physician and patients be followed, as well as the requirement that only one physician prescribe scheduled drugs and only one pharmacy fill those prescriptions.
    Failing to register as a pain clinic is the easiest attack for prosecutors, assuming that is true of your clinic. It is a third-degree felony under §165.152 of the Texas Occupations Code, which can be enhanced to a second degree under the engaging statute (Penal Code §71.02). Even if pain clinics are registered, there are still numerous violations under Title 3, Subtitle B of the Occupations Code that might apply, so look in that section of the code for possible criminal offenses.

Pharmacies
Pharmacies break the law and subject themselves to prosecution in numerous ways. Because of the volume of patients they serve, prosecuting pharmacies can be as daunting as prosecuting a pill mill. Section 481.128 of the Texas Health and Safety Code places strict requirements on “registrants” and “dispensers,” which is defined to include doctors and pharmacists. This section creates an offense if the pharmacist doesn’t comply with §481.074, which describes the process for filling prescriptions and the verifications a pharmacist must make.

Other diversions
The Texas Health and Safety Code describes a violation that it also calls “diversion” in §481.1285. In this section, someone commits an offense if he knowingly converts to his own use or benefit a controlled substance to which the person has access by virtue of his profession or employment, or if he diverts to the unlawful use or benefit of another person a controlled substance to which the person has access by virtue of his profession or employment.
    Once the drug is diverted to the street, the fraud section of the Health and Safety Code (§481.128) provides an offense that covers most of the possible crimes that can be charged in this situation (i.e., using someone else’s prescription, obtaining a prescription through various forms of fraud, and possession of unauthorized prescription forms). Once the drugs have reached the street, those in possession can always be charged under simple possession of a controlled substance.
    
Conclusion
Fighting diversion can be a complicated battle, but it is certainly one worth waging. The Texas Penal Code, Occupations Code, and Health and Safety Code contain numerous tools prosecutors may have never realized. To successfully prosecute these offenses, it takes the full commitment of local law enforcement and prosecution and usually assistance from the DEA or other administrative agencies. No matter how complicated these prosecutions may seem, we are faced with two options: We can sit back and watch the turmoil within our society that prescription drug abuse is causing, or we can do something about it. Because we are prosecutors, I am confident in what we will choose.