By H. Michael Steinberg Colorado Criminal Defense Lawyer
The crime, commonly referred to as “script fraud” basically consists of using fraud, deceit, or forgery to obtain prescription drugs. It is a Class Four Drug Felony (DF-4) and brings with it a possible sentence of up to 12 months in jail and/or a $100,000.00 fine.
The Role Of The Prescription In A Prescription Fraud Case
The use of such fraud and deceit, misrepresentations or even forgery of a prescription through the alteration of an otherwise valid prescription, are common ways to commit this crime. The issue is then raised – why aren’t my communications with my physician and pharmacist confidential and privileged?
How can the police communicate with a Defendant’s private medical professional who has treated that Defendant in the traditionally confidential doctor-patient setting?
Often a line of defense to this crime is that the “script” was not forged or altered, that there was no fraud in the inducement to create the prescription and that the accused seeking the prescription did not misrepresent the truth of the terms of that prescription.
The Physician-Patient Privilege
Colorado law Section 13-90-107(1)(d), C.R.S. 2014, defines Colorado’s physician-patient privilege as follows:
“A physician, surgeon, or registered professional nurse . . . shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient.”
Let’s assume that a prescription is for 60 tablets of Vicodin. The pharmacist – when filling the prescription, has a suspicion that something is wrong and calls the Defendant’s doctor who says…. the prescription was only for 6 tablets.
The prescription is then not filled and the Defendant charged with Criminal Attempt to Obtain a Controlled Substance by Fraud or Deceit under Section 18-18-415(1)(a).
Why can you not assert that the physician-patient privilege covers the initial unaltered prescription? Here is the reason, the Prescription Fraud law provides that the information contained in the original prescription is not privileged because of the clear statutory exception found in Section 18-18-415(1)(b).
That section provides:
Information communicated to a practitioner in an effort to procure a controlled substance other than for legitimate treatment purposes or unlawfully to procure the administration of any such controlled substance shall not be deemed a privileged communication.
The Colorado State Legislature when creating the above law created a statutory exception to the Physician-Patient Privilege for fraudulent or deceitful communications made to a physician even in the case where the original prescription for 6 pills was a valid prescription.
The alteration of that original prescription “triggered” the exception TOto the application of the doctor-patient privilege because the original prescription was altered. Since the Colorado State legislature intended to criminalize fraud and deceit, the exception to the patient-physician privilege is made necessary to prosecute this offense be broad enough to cover all evidence necessary for the prosecution.
Evidence is not privileged in light of section 18-18-415(1)(b)’s statutory exception to privileged communications for persons who alter a prescription in an attempt to obtain a controlled substance by fraud or deceit.
Clearly hospital and medical records fall within the scope of the physician-patient privilege.
There Is A Ray Of Hope – The Wobbler
While the opioid crisis has hit the United States and Colorado, Colorado’s state legislators and state prosecutors are sensitive to the kind of addiction that makes people commit the crime of prescription drug fraud when they are otherwise ordinary law-abiding people.
For this reason, if the Court finds that a Defendant has a substance abuse problem and that treatment, not jail makes more sense, the Defendant can “earn” his or her way to a misdemeanor law level drug conviction and avoid a felony on their record. This is called Colorado’s “wobbler” sentencing for low-level drug felonies.
If the Defendant successfully completes a drug treatment program the law allows the Court to vacate the more serious felony drug conviction and “convert” that conviction for a level 1 drug misdemeanor.