United States v. Dr. James HeatonUnited States v. Dr. James Heaton
Appeal from the United States District Court for the Northern District of Georgia
D.C. Docket No. 2:18-cr-00009-RWS-JCF-3
Before WILSON, JILL PRYOR, and HULL, Circuit Judges.
After a jury trial, Dr. James Heaton appeals his convictions for 27 counts of aiding and abetting the acquisition of controlled substances by deception and 102 counts of unlawfully dispensing controlled substances. On appeal, Heaton argues that the jury instructions were improper and his statute of conviction,
I. BACKGROUND
Heaton was a family practice physician in the small town of Blairsville, Georgia. Heaton primarily treated geriatric patients, but over time the number of his patients declined. Heaton‘s practice then saw an increasing number of chronic pain patients.
Gowder, who was a health care administrator, was not only Heaton‘s so-called “pain patient,” but also was charged as a codefendant for his role in aiding and abetting Heaton‘s unlawful dispensing of controlled substances and for Gowder‘s acquiring controlled substances by deception. The jury found Gowder guilty, and he did not appeal. This appeal involves only Heaton and his convictions.
Below, we describe Heaton‘s practice, his prior interactions with the Georgia Medical Board (“Medical Board“), his relationships with the three pain patients, and the federal investigation into his prescriptions for controlled substances.
A. Heaton‘s Practice
In the late 1990s, Heaton operated a general family practice and rented space to other doctors. In 2011 or 2012, Heaton moved his practice into a smaller office, where he saw an increasing number of younger patients and patients with chronic pain issues.
As part of his practice, Heaton operated a sleep study business. Heaton rented the building for his practice from the Union General Hospital (the “Hospital“). Heaton also served as the medical director of the Hospital‘s nursing home.
B. The Patient Pain Contracts
In 2010, Heaton had a matter before the Medical Board.1 In connection with that matter, Heaton provided the Medical Board with two forms that he reportedly gave to patients who were prescribed controlled substances for pain. Heaton informed the Medical Board that all of the pain patients at his clinic were required to fill out both forms.
Heaton‘s form contracts provided that patients agreed: (1) not to ask for prescriptions to be filled early, (2) not to ask for the dosage or frequency of medications to be increased, and (3) that any breach of the contract could result in the patient‘s dismissal from Heaton‘s practice.2 Heaton‘s records for Gowder, T.G., and H.J.W. did not contain these contracts.
C. Michael Gowder
Gowder, Heaton‘s codefendant, had been Heaton‘s patient since the 1990s. While Gowder testified in his defense case, the government‘s evidence about Heaton‘s controlled substance prescriptions for Gowder, recounted below, came from other witnesses, patients’ files, medical records, and
Starting in January 2012, Heaton prescribed Gowder 40 pills of hydrocodone 10 milligrams (mg) to treat Gowder‘s back and leg pain.
As outlined in detail later, the dosage, quantity, and potency of Gowder‘s pain prescriptions increased over time. By June 2012, Heaton had increased Gowder‘s monthly prescription to 120 pills of oxycodone 30 mg. From July 2012 to November 2012, Heaton prescribed Gowder two prescriptions per month, each for 120 or 150 pills of hydrocodone 10 mg or oxycodone 30 mg. By 2013, Heaton was writing Gowder two or three prescriptions, each for 150 pills of oxycodone, nearly every month.
Gowder filled these prescriptions at pharmacies in Georgia, Tennessee, and North Carolina.3
On January 1, 2013, Gowder, who was a health care administrator, became the Hospital‘s chief executive officer (“CEO“). That same day, Gowder increased Heaton‘s salary as medical director of the Hospital‘s nursing home by $1,000 a month. A Hospital employee testified that he saw Heaton at the nursing home “very infrequently.”
Nearly every month between May 2013 and June 2015, Heaton wrote Gowder two prescriptions, each for oxycodone 30 mg. During that time period, Heaton also wrote Gowder a prescription for Percocet 10 mg most months.4 For example, in January 2014, Heaton issued Gowder: (1) a prescription for 150 pills of oxycodone 30 mg on January 14th; and (2) prescriptions for 150 pills of oxycodone 30 mg and 150 pills of Percocet 10 mg on January 24th. In total, Heaton prescribed more than 15,000 pain pills to Gowder between January 2012 and June 2015.
Lisa Kelley worked at Heaton‘s office from the late 1990s to 2015. Kelley testified that, to her knowledge, Gowder never paid for an office visit with Heaton. Kelley never collected a co-pay from Gowder, who did not make an appointment when he visited Heaton‘s office.
Instead, at least once a month, Gowder came through the back door of Heaton‘s clinic at closing time and met with Heaton in his private office to pick up a prescription. On some of these visits, Gowder brought a check from the Hospital payable to Heaton, who deposited these checks in his personal account. From April 2013 to December 2015, while Gowder was the CEO, the Hospital issued checks totaling $342,500 to Heaton, some of which Gowder delivered personally.
In January 2014, Gowder, in his capacity as the Hospital‘s CEO, purchased Heaton‘s sleep clinic for $155,000. After this deal, Gowder instructed Hospital employees to reduce Heaton‘s $3,200 monthly rent for his office space by $1,000 because the sleep study was being housed there.
D. Patient-Witness T.G.
Patient T.G. testified that she had struggled with drug addiction. T.G. expressly told Heaton that she was a former heroin abuser before she became his patient. T.G. had track marks on her arms where she injected heroin. At trial, T.G. showed these track marks to the jury.
In September 2010, T.G. became Heaton‘s patient. During T.G.‘s first visit, Heaton prescribed her 120 pills of Lortab 10 mg.5 Heaton never told T.G. that the drugs could be habit-forming or dangerous, and he never conducted a urine screen. Although Heaton checked a bulging disk in T.G.‘s neck, he never conducted a full physical examination of T.G.
T.G. sometimes asked Heaton for refills on her pain medication before her prescriptions ran out. When T.G. asked Heaton for a refill, she would pick it up from his house or his office.
In July 2011, Heaton began to prescribe T.G. 90 pills of methadone 10 mg. By October 2012, Heaton had increased T.G.‘s prescription to 150 pills of methadone 10 mg.
T.G. was using methamphetamine and drinking heavily while being prescribed pain medications by Heaton. Over a five-month period, T.G. was arrested for driving under the influence (“DUI“) three times. She served a four-month sentence for her third DUI.
T.G. testified that: (1) she told Heaton that she had been to jail and that she was arrested for multiple DUIs, but (2) Heaton never warned her that she was at risk of an overdose after going without opiates for so long or that it was dangerous to consume alcohol while taking her pain medication.
In June 2014, after T.G. was released from jail, Heaton even prescribed her the same amount of pain medication that he had prescribed before she was incarcerated (150 pills of methadone 10 mg).
To make matters even worse, Heaton and T.G. had a sexual relationship that began before T.G. became Heaton‘s patient and continued during the time Heaton was prescribing her controlled substances. Heaton and T.G. often would have sex when T.G. asked for an early refill before her prescriptions ran out. T.G. testified that she had sex with Heaton at his house or his office after hours. At trial, T.G. identified Heaton‘s bedroom from pictures introduced by the government.
After T.G. was arrested for violating her probation, she began to cooperate with law enforcement. At the request of law enforcement, T.G. texted Heaton in January 2016 and asked for a prescription for controlled substances. Heaton responded: “Can only write controlled substances at office visit, rules have changed, has to be documented, it‘s crazy now.” T.G. explained that, when she had texted Heaton in the past, he would write her a prescription.
E. Patient-Witness H.J.W.
Patient H.J.W. became Heaton‘s patient starting in May 2014. At H.J.W.‘s first appointment, H.J.W. asked Heaton to prescribe hydrocodone and Heaton wrote a monthly prescription for 60 pills of Lortab 7.5 mg6 to H.J.W. to treat her lower abdominal pain (eventually diagnosed as Crohn‘s disease and fibromyalgia). In August 2014, H.J.W. visited Heaton again, complaining of knee and back pain. At H.J.W.‘s request, Heaton doubled her monthly dose to 120 pills of Lortab 7.5 mg.
H.J.W. began to buy hydrocodone pills off the street a year after she started seeing Heaton. In March 2015, H.J.W. told Heaton that she had begun buying pills from other people. Heaton responded that H.J.W. “could not do that” because (1) buying pills off the street was illegal and (2) Heaton could not regulate H.J.W.‘s medications if he did not know the dosage she was taking. Heaton said that H.J.W. could continue with her pain medication or switch to Suboxone7 if she wanted to stop taking her pain medication.
At Heaton‘s urging, H.J.W. signed a document, which stated “I will get my meds from only Dr. Heaton.” The document also stated, “will titrate down” and was initialed by Heaton.
In March 2015, Heaton noted in H.J.W.‘s patient file that she was receiving seven Lortab 10 mg a day and that he would “work her down one a day every two weeks” until H.J.W. was no longer taking Lortab. In April 2015, Heaton noted that he had reduced H.J.W.‘s prescription to five Lortab 10 mg a day.
Starting in May 2015, however, Heaton switched H.J.W.‘s medication from Lortab 10 mg to the more potent oxycodone 15 mg, prescribing her 120 pills of oxycodone 15 mg. Heaton never referred H.J.W. to a specialist or insisted that she seek drug treatment.
F. Patient-Witness H.B.W.
Patient H.B.W. testified as a government witness.8 H.B.W.‘s testimony was admitted pursuant to
H.B.W. was Heaton‘s pain patient from March 2011 to January 2012. At her first appointment, H.B.W. told Heaton that she was struggling with parenthood and owning a business. Heaton prescribed Xanax to H.B.W. to treat her anxiety. H.B.W. eventually became addicted to Xanax and began to buy it off the street. While H.B.W. was Heaton‘s patient, she and Heaton had a sexual relationship that lasted from mid-2011 until January 2012.
H.B.W.‘s husband filed a complaint against Heaton with the Medical Board, which investigated Heaton‘s prescribing practices and his sexual affair with H.B.W. In May 2014, Heaton told a Medical Board investigator that he had prescribed controlled substances to H.B.W. but claimed that his sexual relationship with her began after he “terminated her” as a patient.
At some point H.B.W. and her husband stopped communicating with the Medical Board‘s investigator. In July 2014, the Medical Board closed Heaton‘s case with no disciplinary action. The Medical Board, however, issued a letter of concern to Heaton regarding its “boundary with patients” rule, which prohibits physicians from having sexual relationships with their patients.
G. Federal Investigation
In July 2015, Drug Enforcement Administration (“DEA“) Agent Jason Allen began
In September 2015, Agent Allen and a Medical Board investigator met with Heaton. At this meeting, the Medical Board investigator subpoenaed Heaton‘s patient file for Michael Gowder. Agent Allen, who reviewed this patient file, stated that it was “very light” compared to a typical patient file.
A few weeks later, Agent Allen served a DEA subpoena on Heaton for this same Michael Gowder file, which now contained two MRI reports from 2011 and 2015 and a radiology report from 2006. Agent Allen did not see any of these reports in this file when Heaton provided it to the Medical Board.
During his investigation, Agent Allen interviewed T.G., who was wearing a short sleeve shirt and “had very obvious track marks” on both arms.
In March 2016, Heaton was arrested. During the arrest, Agent Allen accompanied Heaton to his bedroom so that Heaton could change his clothes. Agent Allen told Heaton that his bedroom matched a description given by one of his patients. Heaton responded that patients came over to his house from time to time.
II. INDICTMENT & TRIAL
In March 2019, a second superseding indictment charged Heaton with 1 count of conspiracy to unlawfully distribute and dispense controlled substances, in violation of
As to the 102 substantive
During Heaton and Michael Gowder‘s eight-day jury trial, the government presented thirteen witnesses and overwhelming evidence of Heaton‘s unlawful dispensation of controlled substances. The government‘s witnesses included former employees of Heaton‘s practice and the Hospital, Agent Allen, two Medical Board investigators, three of Heaton‘s patients (T.G., H.J.W., and H.B.W.), and
While the above evidence covers Heaton‘s interactions with the Medical Board and his patients, we now outline the expert testimony about how Heaton prescribed pain pills for no legitimate medical purpose and outside the scope of professional practice.
A. Dr. Gary Kaufman
The government called Dr. Gary Kaufman as an expert witness. Dr. Kaufman, a board-certified physician in pain medicine and neurosurgery, ran a pain management clinic in Brunswick, Georgia for thirteen years. He reviewed the patient files and PDMP records for eleven of Heaton‘s patients, including Michael Gowder, T.G., and H.J.W. Dr. Kaufman described the Medical Board‘s rules governing the prescription of controlled substances and explained how Heaton did not follow them.
Dr. Kaufman testified that the Medical Board has adopted “commonsense” rules of professional conduct that all physicians must follow. Under these rules, “unprofessional conduct” includes: (1) failing to maintain appropriate records for patients being prescribed controlled substances; (2) having personal or sexual relationships with patients; and (3) prescribing controlled substances to known or suspected drug abusers in the absence of a substantial justification.
Additionally, the Medical Board requires that physicians: (1) obtain a patient‘s medical history, conduct a physical examination, and receive informed consent before prescribing pain medications; (2) obtain or make a diligent effort to obtain a patient‘s prior medical records; (3) create a treatment plan; (4) determine whether conservative treatment, including non-controlled medicines, is appropriate before prescribing opioids; (5) have a treatment agreement with the patient if the patient is prescribed hydrocodone, oxycodone, or similar substances for longer than ninety days; (6) monitor a patient‘s use of the controlled substances by randomly checking bodily fluids (i.e., urine screens) at least four times a year; and (7) create a record showing evaluation and monitoring of the patient and the rationale for continuing or modifying the therapy.
Dr. Kaufman explained that the treatment of pain can constitute a legitimate medical purpose for prescribing controlled substances. But if a doctor determines that a patient is abusing the medication, the issuance of pain medications is no longer legitimate, and the doctor must make an appropriate referral for treatment of substance abuse.
The Medical Board requires doctors who prescribe controlled substances to “document everything.” Dr. Kaufman observed: “If it‘s not written, it didn‘t happen.”
Based on his review of Heaton‘s patient files for Michael Gowder, T.G., and H.J.W., Dr. Kaufman testified that Heaton regularly: (1) failed to conduct credible physical examinations; (2) did not monitor patient compliance with prescribed medications; (3) did not review PDMP records; (4) did not obtain prior medical records relating to pain complaints; and (5) did not properly document the prescriptions that he issued to these patients.
Notes
I, ________, understand, agree with, and will comply with the following rules pertaining to my medications. I will not ask for my medications to be filled early. I will not ask for the dosage or frequency of my medications to be increased. . . . Any breech [sic] of this contract could result in my being dismissed as a patient from Blairsville [F]amily Practice.
Patient Physician