Dr. Gary’s Seven Patient Files

In the fall of 2009 I participated in a radio interview with Frank Mottek on KNX 1070 in Los Angeles. Frank’s business program is popular, with more than 50,000 listeners every day. He invited me to speak with him and his listeners about ethics, morality, and the consequences that followed when we crossed the line. Not everyone agreed that I was worthy of such a forum.

Indeed, within a few days of my radio interview with Frank I received my first piece of hate mail. The letter, in summary, clarified the writer’s view that felons forfeited the right to speak about ethics or morality. He berated me as scum, expressed home that others had abused me in prison, and wrote that as a convicted criminal, I should recognize that I’m an outcast in society and that I should act accordingly by remaining in the outskirts.

Receiving the letter was sobering. It reminded me that regardless of my efforts to reconcile with society and to atone for the bad decisions I made as a stockbroker, some would never accept that I had any value to offer. Reading such hateful words made me feel alone. In my mind, they put me right back in prison, where correctional counselors would speak condescendingly to me, or ask questions such as whether this was my first crime or simply the first time I was caught.

If I were to hide from the bad decisions of my past I might lessen my exposure to such slaps in the face. Hiding from my past, however, would be more like wearing a band aid that simply covered up my character flaws, and I wanted to redeem them. Others who never been convicted of a felony would think of themselves as being better people then I was, and maybe they were right. But in telling my story I was convinced that I could help others embrace the practical reasons for acting ethically at all times.

Media reports made clear that a need existed to show others that simple slips in ethics could lead to cascading problems—including felony convictions and the lifelong ramifications that accompanied them. A single day did not pass in our society when news sources wouldn’t publish a story about some pillar of society who made a bad decision that exposed him to the unforgiving wrath of the criminal justice system. Those stories described the fall of people who considered themselves ethical, good citizens. As I listened to or read those news reports, I realized how easily anyone who didn’t make a daily commitment to cultivating a strong ethical core could begin a series of decisions that might bring irreversible consequences.

Even political leaders who promoted themselves as ethical purists were vulnerable to making decision that could derail their lives. For example, John Ensign was a United States Senator from Nevada who promoted himself as a champion of family values. Yet the New York Times published a huge story revealing that while Senator Ensign was pontificating about the importance of ethics, he was betraying his wife, family, and close friend by carrying on an affair with his close friend’s wife. To make matters worse, Senator Ensign—a lawmaker—conspired to cover-up the affair by paying off his “friend” with cash and a lobbying job with a Nevada company that would benefit from close access to Senator Ensign. The story not only published a sizzling example of Washington hypocrisy, but also illustrated a need in society to show the consequences that could follow a lapse in ethics.

This need has existed since the beginning of recorded history. The New Testament told us that when he was urged to condemn a woman for immoral conduct, Jesus responded by suggesting that he who was without any character flaws should cast the first stone. None of the accusers were without flaws, and all walked away. Although my background may have been from the Jewish faith, I understood Jesus’ message. Despite everyone’s capacity to make bad decisions, some people in society would be inclined to ignore their own character flaws and potential for downfall.

Since I was living through the consequences, I was more inclined to empathize when others described their troubles. The more people I heard from people who once thrived as community leaders, the more I hoped that in sharing what I had learned I could help others avoid their own downfall.

Besides exposing me to the listener who castigated me with hate mail, my radio interview on Frank Mottek’s program introduced me to Gary, a community leader whom I wish that I could have reached before his own tragic downfall. Unfortunately, my message did not reach Gary until he had gone through his own troubles with the judicial system. After hearing my interview, Gary called me for advice that might help him through the 57-month prison term he was about to begin serving.

Following our television conversation, we agreed to meet for a longer discussion and I drove to Gary’s home in a gated community. I met his wife, Karen, and the couple’s 10-year-old son, Brandon. The modern home overlooked a private tennis court and pool that was surrounded my manicured lawns; tall shrubbery provided privacy. Gary was a physician, and his home suggested that he led a successful, lucrative practice. We spoke about his background.

Gary grew up in Seattle, one of three boys. His parents were well-educated professionals who had emigrated to the U.S. from Vietnam. “My father was always studying and he impressed upon my brothers and me the importance of education.” Gary said. “He had been from a wealthy Vietnamese family, but in coming to the U.S. he had left everything behind and started from scratch. My father always said that education was the best investment anyone could make because no one could ever take away what was in the mind. He earned a PhD and built a successful career designing billing systems for hospitals.”

“Was it your father who persuaded you to pursue a career in medicine?” I asked.

“He didn’t suggest medicine,” Gary shrugged. “We were a very close family and he wanted my brothers and me to study hard but to pursue careers that interested us. I respected my father, and through him I learned to love studying. I still do. But even though I was a straight-A student, I didn’t think I would grow to become a doctor. My girlfriend from high school planned on studying medicine and she convinced me that since I liked people so much I should do the same.”

Gary studied biology and chemistry at the University of Washington, graduating in 1987, then continued through medical school, earning his MD in 1991. From Washington he went to Stanford for a three-year internship, and in 1994 Gary began his career in internal medicine. When we spoke, in the spring of 2010, he was 46 and had been practicing for 16 years.

For the first 12 years of his career, Gary worked primarily in geriatric care. He liked older people, he said, and for three years he served as the CEO of a group of long-term, acute care specialists with combined annual revenues in excess of $120 million. When Gary accepted the position the hospital chain was losing money, as it was being run by an administrator with a background in business rather than medicine. As a physician, Gary was more effective as an administrator. His medical knowledge gave him an advantage in negotiating contracts with insurance companies and in selecting which patients to accept. Through management efficiencies that Gary initiated, he steered the company from seven-figure annual losses to annual profits that surpassed $8 million. Such success led to the chain becoming an acquisition target by a publicly traded health care provider. Gary resigned after the corporate sale and began his own practice as internist in 2006.

In addition to building a successful career in medicine, Gary was active with Karen in strengthening their community. “Both of our families were from Vietnam, and we’ve been blessed with extraordinary privilege. We have a responsibility, and because of it we enjoyed working together to contribute our time and resources.”

Gary and his wife were active in organizing groups of physicians who would join them in donating their time to provide medical care to the needy both in the United States and abroad. Each year he and his wife would spend two weeks in Vietnam, and while there he would work in rural communities with village leaders to improve health care services. Besides donating his medical expertise, Gary was active with his Christian Faith and he volunteered 10 hours every week to teach Catholicism.

Gary’s reputation as a role model and ideal citizen made him an unlikely candidate for the criminal justice system. At his sentencing hearing, the bishop from his church and other leaders spoke as character witnessed for him, testifying about the selfless contributions Gary and his family made to strengthen the community. Nevertheless, the judge imposed a 57-month sentence on Gary. As we spoke he expressed sadness about the imminent separation from his family, but he refused to make any excuses.

“Well, tell me how a man like you even becomes the target of a criminal investigation.” As I sat across from him on a leather chair beside a large aquarium filled with tropical fish, I found it hard to believe that he would soon self-surrender to federal prison.

“One of my patients was arrested.” Gary explained. “She had been suffering endometriosis, a condition that can cause abnormal bleeding and severe pain. To treat her condition I used a prescription for Vicodin, which the DEA classified as a Schedule III narcotic. Police arrested her when they caught her attempting to sell the drugs on the street.”

“But what does one of your patients selling illegally on the street have to do with you prescribing Vicodin as a pain medication?”

“The DEA’s investigation revealed that the patient had obtained the Vicodin she was selling from a prescription that I wrote. That was all it took for the DEA to begin investigating me.”

“Wait a minute.” The explanation didn’t make sense to me. I scratched my head, as I always do when I don’t understand something. “You’re a medical doctor. You diagnosed a patient with a heart problem. You prescribed the patient medication was appropriate for her condition. Then she resells the prescription. You’re telling me that scenario was sufficient to launch a criminal investigation?”

Whenever I wrote a prescription I was required to write it in triplicate,” the doctor explained. “One copy stayed in my file. One copy was for the patient. The third copy went to the pharmacy. When the pharmacy received the prescription, it entered it into the CURIST system.”

“What’s the CURIST system?”

“It’s a national database that tracks what medication a patient was receiving,” Gary explained. “It was designed to track doctors and patients and the prescriptions of medications. That way, if a patient was visiting multiple doctors to receive additional medications, the CURIST system could alert the doctor. I don’t know what my patient told the DEA agents. She was selling the Vicodin with a group of others. Through the CURIST system, the DEA could track that I wrote the prescription for the Vicodin she was selling. With that information, the DEA concluded somehow that I was involved and they obtained search warrants for my home and office.”

The story was unbelievable to me. I looked around Gary’s exquisite home. It was tastefully decorated with original artwork hanging on the walls, expensive furniture, high-end electronics and appliances. “Out of curiosity, Gary, what’s your annual income range?”

“I earn anywhere between three-hundred to six-hundred thousand dollars per year.”

“And with that level of income, the DEA agents suspected you of being involved in street-level drug conspiracy?”

“I don’t know what they suspected. All I can tell you is that the team of agents charged in here with guns drawn. They handcuffed my wife and me, ordering us not to move from this couch while they searched the house. When they didn’t find anything of value, they drove me to my office and they confiscated 1,200 of my patient files, my record books and computer system. They didn’t arrest me, but they gave me a summons that ordered me to report for a court hearing the following day. I was charged with conspiracy to distribute drugs.”

“How did your wife respond to all of that drama, with federal agents searching inside your beautiful home and ransacking through your belongings?”

“How do you think?” Gary shrugged, opened his hands. “She felt violated, we both felt violated. Thank God Brandon was in school so he didn’t have to see it.”

“What happened next?”

Gary explained that after he reported as directed to the federal courthouse the following day, a judge allowed him to return home provided that he complied with all scheduled judicial requirements. Gary retained a defense attorney. “The first order of business,” he said, “was meeting the attorney’s demand for a $100,000 retainer that he would bill against at $500 per hour. I understood those were only the beginnings of my costs that this matter could become very costly.”

As the government continued its investigation, federal officers examined all 1,200 patient files that they had confiscated from Gary’s office. The search revealed that Gary prescribed Vicodin appropriately to the woman with endometriosis; her file was in order and in compliance with the law. In going through the 1,200 files, however, the agents discovered seven separate files that were not in order.”

“What was wrong with them?” I asked.

“As a medical doctor, I was licensed to prescribe medication. But every prescription required strict documentation. To be in compliance with the law, every patient file had to identify the patient’s subjective complaint, the doctor’s objective observations, the doctor’s assessment, and the plan of action. We used an acronym called SOAP, which stood for Subjective, Objective, Assessment, and Plan. In the seven files that led to my problem, I didn’t sufficiently document the files to meet the threshold of legal compliance.”

“Like what,” I asked. “What didn’t you document?”

Gary explained to me that the seven files recorded his assessments and treatment of long-term patients whom he knew well. He understood their conditions. Rather than writing out the details, Gary used a shorthand symbol that indicated no change in conditions with each of the SOAP inquires.

“And that wasn’t sufficient?” To me, Gary was describing a clerical error, not a federal crime that would warrant a 57-month prison term.

“It wasn’t sufficient because although I was familiar with the patient’s health status, and I understood what I meant by the no change symbol, if another doctor were to consult the patient’s file that symbol would not provide the necessary information for the doctor to treat the patient.”

Gary went on to explain what happened with the seven files. He regularly treated 50 patients on any given day at his office. That busy scheduled necessitated his writing with shorthand in the files during the consultation. In the evening, when the practice quieted down, Gary would complete the paperwork of the files by elaborating on each patient’s condition. But the seven files in question recorded visits from patients on an afternoon two years before the files were seized by the DEA. Gary’s journal showed that he had left on his annual trip to Vietnam the following day those seven patients visited. He was likely rushing, and in his haste, he said that he must have set the files aside—without completing them. His clerical assistant must have then returned the patient files to their place of storage without Gary’s update.

By not updating those patient files, the prescriptions for medicine that Gary made in those seven instances were in violation of Title 21 of the United States criminal code, section 841, which made it illegal for anyone to distribute a controlled substance except as authorized by law. Prosecutors told his attorney that the government was prepared to charge Gary with 15 counts of writing prescriptions without appropriate documentation. Those crimes would result in a possible sentencing range of between 70 and 87 months.

“So did you make a plea agreement?”

“I had to,” Gary took a sip from a glass of iced tea. “My attorney told me that they jury would have convicted me during a trial because there wasn’t any way we could defend against the charges. The prosecutors had the seven files in evidence, and they clearly showed that I had written the symbol for no change rather than the appropriate documentation. He couldn’t defend against what I didn’t write, so he negotiated a sentence of 57 months in exchange for my guilty plea.

Negotiating that plea agreement, Gary said, took three years and cost more than $160,000 in legal fees. His life was a roller coaster during that time because he had no resolution. There was always waiting and the waiting brought more stress. He lost his license to practice medicine, at least for the time being, and that hurt because his identity was closely aligned with his profession. I empathized with Gary as I suggested strategies he could embrace through imprisonment that would assuage some of the pain that would come in his separation from family and community.

When I asked Gary whether his conviction had any moral or ethical implications, he nodded sadly and spoke of his regrets.

“I was a medical professional and I had responsibilities to all of my patients. I could cite excuses all day long about how busy I was, but over these past three years I’ve had to accept that I should have been more careful with my charting. Those charts needed to be current at all times in case another doctor ever had to evaluate the patient. Keeping those files current was my duty as a doctor and it was the law. I regret that I neglected my duty with those seven files. I can’t blame anyone but myself. Ethics required a duty to my responsibilities, and with those seven files I regret that I had failed. Whatever time pressures I was under, I shouldn’t have neglected my responsibility to those patients or my profession.”

When Gary spoke with such humility about his responsibilities to his profession, I thought about how admirably he was in accepting his own fate. In a way, Gary reminded me of the story of Socrates, who agreed to self-induce his poisoning as a consequence of a judicial system’s ruling in ancient Greece. On the other hand, Gary’s response differed remarkably, I thought, from Senator Ensign, who didn’t consider his responsibility to act ethically as a U.S. senator quite the same way.

Chapter Seven Exercises

  • How can neglecting duties to your profession lead to criminal prosecution?
    • What steps are available for professionals who want to redeem ethical violations?
      • How will Gary’s breach of responsibility with regard to those seven files influence the rest of his life?