Expert Testimony Was Unnecessary To Prove Standard Of Care Necessary To Prescribe Controlled Substances

Fact witnesses were able to show failure to comply with professional standard of care, and jury could disbelieve defense experts, in United States v. Armstrong, 550 F.3d 382 (5th Cir. Nov. 21, 2008) (No. 07-30286 & No. 07-30320)

Defendant Armstrong, a registered nurse, operated a weight loss and pain management clinic. An investigation revealed that she and others illegally dispensed controlled-substance weight-loss drugs “outside the scope of professional practice and not for a legitimate medical purpose.” At trial, the defense called two expert witnesses “who opined that her conduct was not outside the scope of professional pain management.” Armstrong, 550 F.3d at 390 n.17. The government did not call any expert witnesses on this issue and relied on fact witness testimony. Defendant Armstrong, corporate defendants, and another doctor were convicted by the jury.

On appeal, the defendant argued that the government failed to present expert testimony to show their conduct exceeded the scope of professional practice in dispensing the drugs. However, the circuit noted that the government could prove its case without expert testimony. Armstrong, 550 F.3d at 388-89 (citing United States v. Chin, 795 F.2d 496, 503 (5th Cir. 1986) (“expert testimony is not always required in order to show that a physician is acting for other than proper medical purposes [in violation of § 841]”) (citing United States v. Rosen, 582 F.2d 1032, 1037 n.10 (5th Cir. 1978) (“expert testimony is not required in order to show that a physician is acting outside the scope of prevailing medical practice”))). While expert testimony may have been helpful for the jury to determine the facts of the case, it was not required. As the circuit reviewed the non-expert evidence which was offered:

“[H]ere there is ample evidence of conduct outside the usual course of any professional practice and/or without medical purpose. Specifically, the Government presented evidence of: (1) long-term rather than short-term treatment, which conflicted with the clinics’ own medical guidelines regarding chronic pain management;11 (2) an extremely high volume of patients seen each day (as many as 300 patients in a four-to-six hour time frame); (3) short durations for patient visits; (4) a lack of individualization of the prescriptions; (5) prescriptions prepared in advance requiring only the doctor’s signature; (6) phony pre-printed doctor’s medical comments placed in patient files; (7) a lack of meaningful physical examination on initial and repeat visits;14 (8) a lack of required documentation of a physical injury; (9) false documentation and outdated MRIs presented by patients and accepted by treating physicians who continued to dispense the trinity drugs; (10) sham physical therapy sessions; (11) a cash-only payment policy; and (12) clinic-hopping among Armstrong’s clinics. Dr. Guenther also testified that each time he attempted to discuss clinic problems with Armstrong, such as the lack of physical therapy or clinic hopping, Armstrong told him that she would ‘take care of it,’ although no changes were made, and on one such occasion Armstrong suggested Dr. Guenther simply ‘stop taking notes.’… Dr. Hope Ewing testified that within an hour of meeting Armstrong about bringing her pain management patients to the clinics, she had a “strong feeling that this was not a suitable place for pain management,” because she was told that she would have to see six to seven patients an hour, which she believed was insufficient for pain management. The Government also presented testimony of two physicians detailing the irregularities that caused them to stop working at the clinics. Dr. Michael Hunter, who quit after only a month at the clinics, stated that Armstrong told him that she gave prescriptions to patients because they expected to receive them.”

Armstrong, 550 F.3d at 390 (footnotes omitted).

The Fifth Circuit added that: "[a]lthough an expert’s opinion as to an ultimate fact issue may be helpful, the jury was instructed that it is not required to follow the opinions of the experts who testify. The defense presented its own expert testimony as to the appropriateness of the professional conduct at issue, and the jury was not persuaded.” Armstrong, 550 F.3d at 390 n.17.

The circuit distinguished two cases relied upon the defense involving expert testimony, citing United States v. Bek, 493 F.3d 790, 799 (7th Cir. 2007); United States v. Cuong, 18 F.3d 1132, 1142-43 (4th Cir. 1994). As the circuit construed the cases, “evidence regarding the particular patient visit or treatment giving rise to the § 841 charge should be presented at trial in order for a conviction on the charge to withstand a motion for acquittal.” Armstrong, 550 F.3d at 391. However, the charged counts were based on transactions involving a DEA informant or undercover agent who both testified at trial about their treatment. Recordings of their visits were obtained and played at trial along with medical records. Therefore, the application of Bek nor Cuong did not require acquittal.

The Armstrong case presents some interesting expert evidence issues. First, expert testimony may not always be required, including specifically to prove the standard of professional care in the case. Second, even though one party offered expert testimony and the other party did not, the jury as the ultimate arbiter of credibility could disbelieve the defense expert testimony.

Federal Rules of Evidence