A Brevard doctor recklessly prescribed opioids for years. Why it's hard to prosecute doctors

Convicting a medical doctor for over-prescribing medication is very difficult ... not impossible.

Three of Hsiu-Ying “Lisa” Tseng's California patients overdosed and died within nine months of each other in 2009. The former doctor was convicted of second-degree murder in 2016 and sentenced to 30 years in prison.

She was never charged for the other six patients who overdosed and died taking medication she prescribed.

There are some — including the federal judge who presided over his case — who felt Dr. John Gayden should have been held responsible for the overdose deaths of his Brevard County patients. Still, prosecutors and law enforcement officers who worked his case were satisfied to make sure he would never practice medicine again.

But why is it so difficult to hold doctors accountable for bad medicine?

"We, generally, and citizens and jurors, trust doctors and pharmacists and nurses and people who provide healthcare to us," said federal prosecutor Dana Hill, who did not work on Gayden's case but who has expertise working cases against doctors. "And for that reason, if we're going to prosecute somebody, we generally want to be in a position where we are more trusted than the defendants are."

Particularly challenging: prosecuting a doctor for prescribing medicine because the doctor is, after all, considered the expert.

"We're not saying this doctor cheated on his taxes or stole money for someone, we're saying this doctor, what he was doing was not medicine," Hill said.

The key, Hill said, is in the investigation. There are certain "red flags" to look for, such as:

■ Little or no examination of patients.

■ No non-pharmacological treatment, such as physical therapy, prescribed.

■ Urine tests or drug tests ignored.

"There are big things that come into play that doctors really should be doing, which is they should be looking at prior medical records to actually diagnose the ailment involved, and then trying things that are not opioids. Doing everything they can without opioids," Hill said.

Federal prosecutor Dana Hill has experience prosecuting doctors for over prescribing medication.
Federal prosecutor Dana Hill has experience prosecuting doctors for over prescribing medication.

"One of the doctors I worked with in one of my cases explained to me that there's really two conditions when you're dealing with somebody with chronic pain," he further explained. "One is the actual chronic pain involved and the other is substance abuse disorder. And what you will see, when you see a doctor who is just giving away pills, is they're treating one ailment, but they're ignoring the other. That's not medicine, medical doctors who are practicing real medicine are attuned to both conditions and are trying to treat one while not causing another chronic ailment, which is substance abuse disorder."

A doctor, such as Gayden, was acting outside of the usual course of professional practice. He was prescribing pills without any concern for the risks posed, causing many of his patients to become addicted or dependent.

What makes behavior like that difficult to prosecute, according to Hill, is that you need to convince a jury that even though it looks like a medical practice: receptionist, waiting rooms, out-of-date magazines, what is going on in the examination room is not real medicine.

"What goes on between the doctor and the patient is so different behind that closed door from real medicine that it's outside the usual course of professional practice," Hill said. "So it's a harder prosecution, but it's also an important prosecution because whatever you say about a person who is distributing drugs on a street corner, they tend to be fueling an existing problem. They tend to be servicing existing addicts. Whereas a doctor who is giving out drugs too recklessly, too freely, too casually is often creating new addicts where none existed before."

Contact Torres at jtorres@floridatoday.com. You can follow him on X, the platform formerly known as Twitter @johnalbertorres or on Facebook at facebook.com/FTjohntorres

This article originally appeared on Florida Today: Why convicting doctors practicing bad medicine is so difficult