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United States v. Jain

United States District Court, D. New Mexico

March 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PAWANKUMAR JAIN, M.D., a.k.a. “Pawan Kumar Jain, ” Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER DENYING DEFENDANT'S OBJECTIONS TO THE PSR

          ROBERT C RACK SENIOR U.S. DISTRICT JUDGE.

         In February 2016, Dr. PawanKumar Jain pled guilty to two counts of unlawfully dispensing a controlled substance and health care fraud. These counts related to his treatment of his patient MEB.[1] MEB died on December 25, 2009, two days after filling a methadone prescription written by Dr. Jain. Dr. Jain admitted that the methadone prescriptions he wrote MEB preceding her death fell outside the usual course of medical practice and had no legitimate medical purpose. Dr. Jain has made three formal objections to his Presentence Investigation Report (PSR): (1) to the inclusion of all the opioid prescriptions listed in the indictment, which he wrote to ten different patients, as relevant conduct in calculating his base offense level; (2) to the upward adjustment for a large number of vulnerable victims; and (3) to references to the cause of death of some of the patients named in the indictment.[2]

         The Court held an evidentiary hearing on these objections which began on November 20, 2018, and continued on December 5 and 6, 2018. Having considered the submissions of counsel, the record, relevant law, and being otherwise fully advised, the Court issues these findings of fact and conclusions of law and will deny Dr. Jain's objections to the PSR.

         FINDINGS OF FACT

         “[W]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” Fed. R. Crim. P. 12(d). The Court must “for any disputed portion of the presentence report or other controverted matter-rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). At the evidentiary hearing the Court heard testimony from Dr. Stacey L. Hail, M.D., Dr. Graves T. Owen, Michael Garrett Shavier, Laura Rose Duran, and DEA Special Agent Jeffrey Castillo. Based on the hearing and the record, the Court makes the following findings of fact proven by a preponderance of the evidence:

         1. Dr. Graves Owen is an expert in the field of pain management. (Vol. I of Tr. of Evidentiary Hr'g (Tr. I) at 167.)

         2. The standard of care is what a reasonable and prudent physician would do in the same or similar circumstances, though there is some grey area about what is appropriate. (Id. at 170, 218.)

         3. Practices that fall below the standard of care include failure to: practice evidence-based medicine; maintain reliable, credible, and legible medical records; perform the appropriate medical evaluation process to establish the outcome of previous treatments; obtain comprehensive previous medical records; perform and document an appropriate medical history; and perform and document an appropriate and reliable physical exam. (Id. at 170; Gov't Evidentiary Hr'g Ex. 8 (Gov't Ex. 8)[3] at 2-4.)

         4. Although the experience of pain is a subjective experience, assessing the body's ability to function, such as the length of time a person can sit and stand, and how far the person can walk, provides a more objective manner for a pain doctor to accurately assess and treat pain. (Tr. I at 172.)

         5. In the field of pain management, the standard of care includes the exhaustion of conservative, evidence-based treatment options before treating a patient with high-risk, non-evidence-based treatment options. This is referred to as the “first do no harm” doctrine. (Id. at 170.)

         6. Conservative evidence-based options for the treatment of pain include: exercise, yoga, pilates, physical therapy, cognitive behavioral therapy, acupuncture, and chiropractic manipulation. (Id. at 173.)

         7. Chronic opioid therapy is a high-risk treatment option. (Gov't Ex. 8 at 25.)

         8. Reasonable and prudent physicians should consider risk factors like vulnerable mental or emotional conditions before prescribing opioids for pain management. (Tr. I at 171.)

         9. Pain patients who have risk factors for addiction or misuse of pain medications are at a higher risk for opioid addiction because they are more vulnerable to the use of opioid prescriptions to chemically cope or self-medicate. These risk factors include: a family or personal history of alcoholism or drug addiction; mental health problems, including anxiety and depression; impulse control problems including OCD, ADD, bipolar disorder, schizophrenia, and personality disorders; hyper-vigilant states such as Post-Traumatic Stress Disorder; a history of abuse; and being under the age of 45. (Id.)

         10. Aberrant drug taking behaviors are behaviors outside the boundaries of the treatment plan, including running out of prescribed drugs early, obtaining controlled substances from multiple sources, and behaviors that may be detected by a urine drug test like taking illegal drugs or not taking the prescribed substances. (Id. at 176; Gov't Ex. 8 at 20.)

         11. Failure to monitor compliance with the prescribed use of controlled substances and take appropriate corrective action to address aberrant drug taking behaviors is below the standard of care. (Gov't Ex. 8 at 20.)

         12. Corrective action could include warning the patient, testing their urine for drugs, asking them to come in more frequently for assessment, ceasing to prescribe the controlled substances, or even discharging them from the practice. (Tr. I at 178.)

         13. Failure to monitor for adverse events such as liver toxicity and sleep apnea in patients receiving chronic opioid therapy is below the standard of care. (Gov't Ex. 8 at 25.)

         14. Dr. Owen reviewed 23 of Dr. Jain's patient files to determine whether Dr. Jain met the standard of care in prescribing controlled substances to each of those patients, including the 10 patients who were named as victims in the Second Superseding Indictment (the Indictment). (Tr. I at 174.)

         15. Dr. Owen opined that none of the prescriptions that Dr. Jain wrote to MEB for methadone and oxycodone from April 23, 2009 to November 25, 2009, were written for a legitimate medical purpose, and they were outside the scope of medical practice. (Id. at 174-75.) Dr. Owen based his opinion on evidence of deviations from the standard of care in prescribing narcotics, including:

a. MEB presented the following risk factors for addiction or aberrant drug-taking behavior: 39 years old, obtaining multiple opioids from multiple providers, anxiety, depression, and bipolar symptoms. (Id. at 177-80.)
b. Dr. Jain did not obtain and review all of MEB's pertinent medical records before he began treating her pain with controlled substances. (Id. at 175.)
c. While MEB was under Dr. Jain's care, he received several letters from agencies and other providers notifying him that MEB was receiving narcotic medications from multiple providers, but he still prescribed MEB controlled substances. (Id. at 199; Vol. III of Tr. of Evidentiary Hr'g (Tr. III) at 25-27.)
d. Dr. Jain performed superficial evaluations by not conducting adequate problem-focused physical exams and not taking adequate medical history each time Dr. Jain saw MEB and before he prescribed controlled substances to MEB. (Tr. I at 176.)
e. There is no documented explanation of alternate pain treatment choices in MEB's pain management contract, executed November 7, 2008. (Id. at 176-77.)
f. Dr. Jain did not exhaust conservative care options before treating MEB's pain with controlled substances. (Id. at 181-82.)
g. Dr. Jain failed to document a therapeutic benefit, or improvement to MEB's pain, from the prescribed controlled substances. (Id.)

         16. As part of his plea agreement, Dr. Jain admitted that the final two methadone prescriptions he wrote to MEB were issued outside the usual course of medical practice and without a legitimate medical purpose. (Doc. 81 at 4.)

         17. Dr. Owen opined that Dr. Jain's July 27, 2010 prescription of oxycodone to ND was not written for a legitimate medical purpose, and was outside the scope of medical practice. (Tr. I at 182.) Dr. Owen based his opinion on evidence of deviations from the standard of care in prescribing narcotics, including:

a. ND's patient file lacked a documented therapeutic benefit for oxycodone. (Id. at 182- 83.)
b. There is no evidence that Dr. Jain conducted urine drug testing of ND before prescribing controlled substances. (Id. at 183.)
c. Dr. Jain did not document any evaluation of risk factors for aberrant drug taking behavior like unstable behavioral and mental health issues, even though a form in ND's file notes “depression, anxiety, psychiatric treatment, mood swings, and sleep disturbances.” (Id. at 183-84; Vol. II of Tr. of Evidentiary Hr'g (Tr. II) at 74-76; Gov't Ex. 15.)
d. ND had received prescriptions from a nurse practitioner about a week before her visit with Dr. Jain, but Dr. Jain did not obtain any of ND's prior medical records prior to prescribing controlled substances. (Tr. I at 123, 211-12; Tr. III at 23-24.)

         18. Dr. Owen opined that none of the prescriptions that Dr. Jain wrote for morphine sulfate to RB from October 30, 2009 to June 7, 2010, were written for a legitimate medical purpose, and they were outside the scope of medical practice. (Tr. I at 184.) Dr. Owen based his opinion on evidence of deviations from the standard of care in prescribing narcotics, including:

a. RB's patient file revealed superficial evaluations and failure to assess function. (Id. at 185.)
b. There is no evidence that Dr. Jain followed up on risk factors for aberrant drug-taking behavior such as anxiety, depression, and nicotine addiction, nor that he took corrective action following a urine drug test that was positive for THC. (Id. at 185-86.)
c. Dr. Jain failed to document medical necessity or therapeutic benefit for prescribed treatments with controlled substances. (Gov't Ex. 8 at 35-36.)

         19. Dr. Owen opined that none of the prescriptions for oxycodone that Dr. Jain wrote to TB from December 14, 2009 to June 14, 2010, were written for a legitimate medical purpose, and they were outside the scope of medical practice. (Tr. I at 186-87.) Dr. Owen based his opinion on evidence of deviations from the standard of care in prescribing narcotics, including:

a. Dr. Jain failed to address TB's anxiety and depression that he noted on intake forms. (Id. at 187.)
b. Dr. Jain did not obtain TB's pertinent previous medical records before prescribing controlled substances. (Gov't Ex. 8 at 42.)
c. Dr. Jain conducted superficial evaluations with poor documentation. (Tr. I at 187.)
d. Dr. Jain did not document therapeutic benefits for the opioids prescribed to TB. (Id.)
e. Dr. Jain required TB to provide a urine sample on June 14, 2010, which came back positive for cocaine on June 17, 2010. (Id. at 223; Def. Ex. K.)
f. It appears that Dr. Jain made the decision to discharge TB from his practice based on the test that came back positive for cocaine, but he prescribed oxycodone to TB on the same day he required the urine sample, prior to receiving the lab results. (Tr. I at 62, 224; Def. Ex. K.)

         20. Dr. Owen opined that none of the prescriptions for methadone and oxycodone that Dr. Jain wrote to MJB from May 26, 2009 to March 24, 2010, were written for a legitimate medical purpose, and they were outside the scope of medical practice. (Tr. I at 187-88.) Dr. Own based his opinion on evidence of deviations from the standard of care in prescribing narcotics, including:

a. MJB had a history of sleep apnea, which increases the risk that a patient who is prescribed opioids will die. Dr. Jain noted the sleep apnea on MJB's patient intake ...

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