Criminal procedure

• United States v. Dicter
• United States v. Moon
• United States v. Wood

United States v. Dicter, 198 F.3d 1284 (11th Cir. 1999)

Richard Dicter, M.D., was convicted by a federal jury of over 200 counts of unlawful distribution of a controlled substance.  A federal district court ordered his state medical license forfeited, fined him, and sentenced him to prison.  On appeal, the 11th Circuit Court of Appeals affirmed. The Court held that Dr. Dicter’s state medical license constituted property subject to forfeiture under federal criminal forfeiture law.

Dr. Dicter petitioned to the U.S. Supreme Court to review the case.  The Litigation Center joined the Medical Association of Georgia (MAG) in an amicus curiae brief filed in his support.  MAG and the Litigation Center argued that the federal forfeiture of a state medical license is an unconstitutional (10th Amendment) interference with a state’s power to regulate the practice of medicine.  Both MAG and AMA support a state’s right to regulate the quality of medical care, which includes physician discipline, practiced within its borders.  Also, while Georgia law recognizes a property interest in a medical license, the license is not, alone, property.  The Supreme Court denied Dr. Dicter’s petition.

United States v. Moon (M.D.Tenn. 2005)

Issue

The issue in this case was whether evidence collected by an overly broad, warrantless search of a physician's office by state and federal investigators should be suppressed.

AMA interest

The AMA supports legally proper search procedures in any investigation of a physician.

Case summary

Dr. Moon, a Tennessee oncologist, was indicted for fraudulent billing of pharmaceuticals to cancer patients enrolled in Medicare and TennCare (Tennessee's Medicaid program) from 1999 to 2002. Federal prosecutors alleged that Dr. Moon repeatedly billed Medicare and TennCare for the full dosage amounts of chemotherapy medication when only partial doses were administered.

Based on a lead from one of Dr. Moon's employees, the Tennessee Bureau of Investigation (“TBI”) and the U.S. Health and Human Services Office of the Inspector General (“HHS-OIG”) conducted an “administrative search” of Dr. Moon's office. In addition to their review of patient records, including records of patients not covered by either Medicare or Tenncare, the investigators interviewed patients and staff and interfered with Dr. Moon's treatment of her patients. Following the search, the government indicted Dr. Moon for allegedly violating the federal Health Care Fraud Statute, 18 U.S.C. § 1347(1) and (2). Dr. Moon lost her hospital privileges.

The trial court ruled that at least some of the evidence derived from the search could be admitted into evidence and denied the motion to suppress.

Litigation Center involvement

The Litigation Center, along with the Tennessee Medical Association, filed an amicus curiae brief to support Dr. Moon's motion to suppress the evidence that had been obtained against her as the result of a warrantless search of her office. The brief argued that the government search had not only infringed Dr. Moon's privacy rights, but it had also infringed the rights of her patients. Although Dr. Moon had signed a “boilerplate” release in order to participate in Medicare and TennCare, the amicus brief argued that the release did not support the broad search that had actually occurred and that the government could have avoided these issues if it simply had obtained a search warrant.

View the brief. (PDF, 72KB)

United States v. Wood, 207 F.3d 1222 (10th Cir. 2000)

This was an appeal of a criminal case heard in Oklahoma.  Dr. Wood was tried for murder after he administered potassium chloride to a patient in extreme medical distress, who then died.  At the trial, experts for both sides gave diametrically opposed opinions as to whether Dr. Wood’s action was proper and whether it caused the patient’s death.  The jury found that Dr. Wood had behaved recklessly and was thus guilty of involuntary manslaughter.  Dr. Wood appealed.

The Oklahoma State Medical Association, with support from the Litigation Center, sought leave to file an amicus brief in support of Dr. Wood’s appeal of his conviction.  The brief maintained that, because there was such a marked difference of opinion among the experts, Dr. Wood could not have been found to have acted improperly beyond a reasonable doubt.  Moreover, the brief argued, Dr. Wood should not have been found criminally culpable for his exercise of medical judgment under the extreme circumstances of this case.

The Tenth Circuit, without explanation, denied the OSMA/Litigation Center request to file the amicus brief.  Subsequently, the court reversed Dr. Wood’s conviction, holding that the trial court had prejudiced Dr. Wood through its failure to dismiss the two murder counts.  The case was remanded.