(Withholding Information from a Medical Practitioner)
Remember when asking for a second opinion was a good thing?
Those days are over. Now, asking for a second opinion can get you a prison sentence. Seems a little harsh, and its called Doctor Shopping. Technically, Florida prosecutors label this crime "withholding information from a medical practitioner". The details are found in Florida Statute section 893.13(7)(a)(8), defining doctor shopping as:
- Withholding information from a medical practitioner,
- from whom the patient seeks to obtain a controlled substance or prescription, and
- patient has received a similar controlled substance/prescription of like use from another practitioner within the previous 30 days
Its my job as a defense lawyer to drill deeper into what is needed to prove this crime. One obvious problem with this statute is that the term "withholding information" is not defined. Let's face it, not all doctors are created equal. Some doctors are not very interested in talking to their patients--after all, they know everything, right? So, how can someone ever be accused of withholding information from a doctor that never bothered to ask many questions, and never bothered to listen to his or her patient?
In other words, if a doctor doesn't ask about prior prescriptions, is it still withholding info when the question was never asked? The common sense answer would be yes, because that's the plain language of the statute. But interpreting Florida criminal statutes is never that easy, and now that lawyers and judges have meddled with it, just throw common sense out the window. Courts have interpreted this withholding information statute to actually mean that patients must volunteer information to their doctor even if the doctor never asks! Is this still America?
Prosecutors have a tough time proving doctor shopping cases because, to be found guilty of this crime, they must prove the patient specifically sought to obtain a controlled substance. In essence, a patient is only guilty of doctor shopping if he asks specifically for a controlled substance or prescription. If a patient goes to the doctor merely describing various aches and pains--and the doctor prescribes certain meds based upon the patient's descriptions--no crime was committed. The patient must have specifically sought the controlled substance. For more analysis of such a fact scenario, see my article entitled "Florida Police Arresting Patients Who Ask For Controlled Substances".
So, if you go to the doctor and merely complain about your symptoms to the physician, there's no crime, and there's no need to volunteer recent prescriptions. Doctor shopping only applies to those who are seeking to obtain a controlled substance. Defending charges of obtaining a controlled substance by withholding information often involve challenging the manner in which investigators uncovered a citizen's private medical records (yes, believe it or not, we still have a right to privacy in our medical records). To see just how such records can be challenged, read my article "The Government Wants to See Your Medical Records".
If our medical records are confidential, why is it that everyone seems to be able to get their hands on them? The doctor-patient privilege is found in Florida Statute Section 456.057, and it says that a doctor may not share a patient's medical information without the patient's written consent. Done deal, right? Unfortunately, there are exceptions to the written consent rule, and one such exception permits a doctor to disclose a patient's records upon the service of a subpoena in a criminal case. Now, the prosecutors are not allowed access to a patient's records via a subpoena unless they give the patient notice. The patient must be served notice of said subpoena--so if you ever get such notice, please contact an attorney immediately because these subpoenas are not always legal and you'll have a chance to fight it if the situation is caught in time (it seems patients are rarely given notice in time to fight, and while I'm not the most conspiratorial guy you've ever met, these delayed notices do cause me concern. I'm just saying).
More often than not, a doctor shopping charge arises out of a trafficking in hydrocodone/oxycodone investigation. Recently, a Florida Court decided an important issue regarding the availablility of the prescription defense on a doctor shopping charge. Check out my article "Doctor Shopping Doesn't Kill Prescription Defense". Once records from various pharmacies are matched to defendant names in trafficking cases, it can only be a matter of time before a doctor shopping accusation is filed.