Steve’s Fresh Perspective

Lawyers are the Best Medicine

The 23rd Annual National Institute on White Collar Crime is over, my bags are packed, and here are my thoughts:  In the coming year, white-collar criminal defense lawyers are going to be very busy.  Not a great surprise, I know.  But exactly how will we be spending our time:  as you might suspect, many of us will be busily defending cases involving securities fraud.  Here’s what you might not expect us to be doing:  Defending doctors. 

Soon, the federal government will be pursuing doctors who take kickbacks from drug makers and medical device makers in exchange for using their equipment.  As recently reported in The New York Times, federal health officials are forcing a growing number of drug and device makers to post publicly all payments made to doctors who serve as consultants or speakers. These public disclosures of the details of these agreements will make criminal conduct more difficult to conduct and easier to spot, as the article correctly points out.   

Not just federal prosecutors are looking into the drug industry’s influence on the practice of medicine.  Senator Charles Grassley recently asked that Pfizer provide details of its payments to at least 149 faculty members at Harvard Medical School. 

These inquiries and investigations demonstrate that either the public’s respect for those in the medical profession has decreased, or prosecutors and Senators believe it has.  And since jurors are “the public,” doctors had better be prepared to defend themselves in court against allegations of wrongdoing.  In such cases, I would prescribe an experienced criminal defense attorney. 

Why?  For one, a health care lawyer, which is probably the only type of lawyer with whom the doctor has had dealings, has probably never read Title 18 USC Section 3141 and would not know the first thing about pretrial detention, which is going to be sought in some cases where the government alleges that the doctor is a danger to the community.  Second, a health care lawyer is probably unaccustomed to explaining to a client/doctor that he should talk  to no one other than to the Pretrial Services Officer who is going to recommend whether his release is appropriate.  Third, and neither last nor least, a health care lawyer is not nearly as familiar with law enforcement techniques as an experienced federal criminal defense practitioner.  To that end, much like an early diagnosis, it would be wise for a doctor who believes he is under investigation to find effective representation sooner rather than later to minimize the risks that a federal investigation brings with it.


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