Doctor Larry Eckstein, of Boulder, Colorado, was indicted this summer by a Boulder County grand jury on one felony count of distribution of a controlled substance. I have no personal knowledge of this case, or of doctor Larry Eckstein, having only read about the doctor in the media. As I understand it from the news reports, however, Dr. Eckstein’s case is a small case, as drug cases go, and the doctor has garnered much community support, evidenced by crowd fundraising, a Facebook page, and public letter writing and comments. Based upon what I read, I further question whether Dr. Eckstein’s case is properly treated as a criminal case.
The allegations against Dr. Eckstein
According to the lead news report, the factual allegations against doctor Larry Eckstein are that:
“an undercover police detective scheduled an appointment for July 22, 2014, at Eckstein’s Boulder office, 2760 29th St. The detective complained of “chronic soreness” and said that a friend’s “Roxies” ‚Äî the street name for the opiate Roxicodone ‚Äî had helped him before.
“Eckstein gave the detective a basic physical examination and then prescribed him hydrocodone, according to the indictment. Eckstein approved two more refills for the hydrocodone and made a second prescription for the drug at a second appointment with the undercover detective in October.
“But on a third appointment Oct. 30, Eckstein prescribed the undercover detective oxycodone, and he did so again at four other appointments between December and February, according to the indictment.
“Between Oct. 30 and Feb. 25, Eckstein dispensed 30 grams of oxycodone to the undercover officer, according to court documents.”
See, Boulder doctor indicted on charge of distributing oxycodone, Boulder News, August 19, 2015.
The government’s expert
According to the same news report, the expert opinion of a chart-reviewing physician offered in support of the indictment, is that several aspects of Dr. Eckstein’s treatment of the detective fell “outside the ordinary course of the professional practice,” because Dr. Eckstein (1) never made a diagnosis, (2) never performed any of the appropriate physical examinations, (3) did not perform a risk assessment on the detective, (4) mixed opioids with other prescription drugs, and (5) increased the amount of drugs in the prescription “massively,” without a diagnosis or treatment plan. See, Boulder doctor indicted on charge of distributing oxycodone, Boulder News, August 19, 2015.
Several observations worth consideration
Overall, it appears that Dr. Eckstein wrote two prescriptions for hydrocodone (allowing two refills) and five prescriptions for oxycodone, on seven different occasions, over the course of eight months, spanning July 2014 through March of 2015, in response to an undercover detective’s complaints of chronic pain.
Is the government’s expert opinion worth that much?
Please know that when a chart-reviewing “expert” physician concludes that another physician’s treatment of a patient falls “outside the ordinary course of the professional practice,” as happened here, the expert is most often rendering a standard of care opinion (i.e., a malpractice opinion), while using words taken from a criminal statute. This type of opinion can be very misleading, because malpractice (professional negligence), without more, is usually not criminal. In other words, the expert might very well render an opinion that the medical standard of care was not met, as appears to be the case here, but where is the rest of the evidence? – the evidence necessary to push Dr. Eckstein’s case into the realm of criminal drug dealing?
A crime, malpractice, or none of the above?
There can be little doubt that the undercover detective intended to do as much as possible to obtain prescriptions for controlled drugs from Dr. Eckstein, without helping the doctor. Under the circumstances, does Dr. Eckstein’s treatment of the detective sound like criminal activity, or malpractice, or none of the above? At least one clinician, having some expertise himself and writing in support of Dr. Eckstein, suggests it was no more than professional negligence. See, Charles Horowitz: Prescribing pain medication often a tough call, Boulder News (Opinion), August 29, 2015.
Why not leave this matter with the Colorado Medical Board?
As a matter of public policy, why isn’t the Colorado Medical Board’s emergency suspension of Dr. Eckstein’s medical license “on suspicion of a ‘deliberate and willful violation of the Medical Practice Act,’ ” an adequate response in this case? See, Colorado suspends license of Bolder doctor indicted on drug charges, Boulder News, September 15, 2015. It is, after all, the role of a State licensing board to regulate the practice of medicine, and here the Colorado Medical Board has stepped in and suspended Dr. Eckstein’s medical license, meaning Dr. Eckstein can no longer practice medicine, much less prescribe controlled drugs. In a case like this, I would expect the Colorado Medical Board to investigate, to determine whether the Medical Practice Act was violated and, if it was, to discipline Dr. Eckstein accordingly, by imposing restrictions on him and his license. Why isn’t that enough in a case like this?
Why not suspend, restrict, or revoke Dr. Eckstein’s DEA Registration?
As a matter of public policy, why did those with decision-making authority prefer to indict Dr. Eckstein when they could have more efficiently and cost effectively suspended, restricted, or revoked his DEA Registration? A DEA Registration is necessary to prescribe controlled drugs, and it was the DEA that issued Dr. Eckstein’s DEA Registration in the first place. The DEA is similarly empowered to suspend, restrict and/or revoke Dr. Eckstein’s Registration for failure to meet the medical standard of care and, without DEA authority obtained via his DEA Registration, Dr. Eckstein can no longer prescribe controlled drugs. Why isn’t that enough in a case like this?