On September 5th, 2012, Pinellas County Florida physician John Anthony Gianoli, III was sentenced in federal court to five years in prison for prescribing oxycodone to an undercover agent. Dr. Gianoli operated the Body of Dr. G Clinic in St. Petersburg and was known to locals as a doctor who recommended yoga in lieu of medication. His specialty was internal medicine and pain management. He used yoga in his own recovery from multiple car accidents and urged its use with many of his patients. One can only guess as to why Dr. Gianoli was targeted by the feds, but by all accounts he ran a small family practice and was by no means a prodigious writer of prescriptions for pain medication.
Dr. Gianoli’s troubles began in 2009, when an undercover agent posed as a patient and sought treatment. The agent presented fake medical records and a story designed to fool even the most skeptical physician. The doctor wrote the undercover agent five prescriptions for oxycodone and in order to spice things up for the anticipated prosecution, the agent volunteered that he was going to give some of the pills to his girlfriend in exchange for sex. Superfluous statements of this type are often made by law enforcement when archiving a conversation because they greatly aid the anticipated prosecution. They are highly prejudicial in nature and offer practically nothing in the way of probative value. Regardless, these offhand comments can be devastating to a defendant’s case.
Interestingly, even though the undercover agent recorded his visits with Dr. Gianoli, no recording was made of his initial intake with the doctor. It may be more accurate to say that no recording was made which would have bolstered the prosecution’s case. The undercover agent claimed at trial that he had the recording device with him during the initial visit, but simply failed to archive the encounter. Dr. Gianoli testified at trial that an initial patient intake was completed for the agent. The agent, however, testified at trial that the examination did not take place and without the recording, it was a difficult charge to refute. The allegation that Gianoli performed no initial intake before prescribing oxycodone was a key element in the prosecution’s case.
Dr. Gianoli gave testimony at trial that he never believed his medications were actually being diverted to someone else. He further pointed-out that he did not receive any additional compensation for prescribing oxycodone. The jury also learned at trial that he had discharged the fake patient before learning he was an undercover agent.
Despite these mitigating facts, Dr. Gianoli was convicted in federal court of one count of illegally prescribing oxycodone. He was acquitted of two other counts involving illegal prescriptions and the jury failed to reach a decision on two remaining counts. Conviction on just the one count still left Dr. Gianoli exposed to a potential sentence of 20 years in federal prison.
AUSA Kathy Peluso argued for a lengthy sentence, citing the harm Dr. Gianoli caused by dispensing his “illegal” prescriptions. At Gianoli’s sentencing hearing, Peluso went to great lengths to play up the fact that the undercover agent told the doctor that the pills being prescribed were going to be diverted and exchanged for sex. Dr. Gianoli’s defense counsel argued there was no evidence in the government’s case that would allow the judge to conclude that the doctor saw a large number of patients or frequently prescribed oxycodone. Defense counsel further argued that “When a patient (or undercover agent posing as a patient) presents to the physician armed with phony medical records and deceptive information regarding their medical history, diagnosis and treatment, this prosecution suggest a physician must be a detective, forensic document analyst and interrogator before he or she exercises their clinical judgment.”
Defense counsel also pointed to Dr. Gianoli’s loss of his medical license, claiming this was punishment enough. “Dr. Gianoli will never treat patients or prescribe medication to anyone ever again, although he will continue to pay on his sizeable medical school loans for many years to come.”
USDJ Susan Bucklew thought otherwise and sentenced Dr. Gianoli to five years imprisonment to be followed by three years of supervised release. He was also ordered to surrender his physician’s license. While no doubt a harsh sentence, it was considerably less than the 78-97 months sought by the government. AUSA Peluso appears to have been trying to do more than merely punish Dr. Gianoli; she was actively seeking to bury him. Fortunately, Judge Bucklew limited the amount of harm the government was able to inflict.
Some of Dr. Gianoli’s contemporaries have taken note of what transpired in this matter and have spoken out against what they perceive to be an outrageous government intrusion into medical ethics. Dr. Jane Orient, executive director of the Association of American Physicians and Surgeons (AAPS) issued a statement about Dr. Gianoli’s prosecution that was highly critical of the government actions. “Abusive prosecutions like this one send the message that it’s too dangerous to prescribe oxycodone or other controlled drugs,” stated Dr. Orient. “Any patient, however compelling his story, could turn out to be a federal plant.”
The AAPS issued a press release on Dr. Gianoli’s sentencing which pointed out that “Dr. Gianoli loses freedom, his ability to practice his vocation, his livelihood, his life savings, and his reputation. His patients lose a caring physician, and patients throughout the country may be sentenced to a lifetime of unremitting though treatable pain because physicians fear to prescribe for them.”
Prosecutions of this nature beg the question of what is the government’s real goal. Was this really about curbing illicit drug use, or were government prosecutors merely seeking another high-profile target for federal prosecution? There is a certain status in the medical profession and taking down Dr. Gianoli offers federal prosecutors more in the way of self-serving publicity than run-of-the-mill drug dealers. If there was a real concern about prescriptions written by Dr. Gianoli or any other physician, the DEA could easily revoke their authority to prescribe controlled substances. For the government to proceed as they did in this matter merely wastes millions of dollars of taxpayers’ money on sting operations, trials and lengthy terms of incarceration. In the end, all it does is deprive society of good physicians who serve the public.
Another consequence of criminalizing the doctor-patient relationship is a growing hesitancy for doctors to properly treat patients with chronic pain. The number of doctors willing to treat chronically ill patients with narcotic pain killers has been steadily dwindling because of cases like Dr. Gianoli’s. Patients with chronic pain often report having to travel hundreds of miles just to see a doctor willing to prescribe the medicine they require. Dr. Harvey Rose, a Carmichael, California family practitioner who once battled state regulators who accused him of “excessive prescribing,” was quoted as saying, “These are people who are hurting, who have to go out of state in order to find a doctor. We still get calls from all over the country: ‘My doctor won’t give me any pain medicine.’ Or, ‘My doctor died, and the new doctor won’t touch me.’ These people are desperate.” Dr. Rose went on to describe how in the end, suicide becomes the last option for patients suffering from chronic pain and who are being deprived their much-needed medication.
Dr. Sidney Schnoll, a pain and addiction specialist who chairs the Division of Substance Abuse at the Medical College of Virginia observes, “We go to great lengths to stop addiction, which though certainly a problem, is dwarfed by the number of people who do not get adequate pain relief. So we will cause countless people to suffer in an effort to stop a few cases of addiction. I find that appalling.”
What the aforementioned doctors fail to mention is that federal prosecutors are playing with people’s lives as they attempt to choose attractive, newsworthy targets for prosecution. Doctors make great fodder not only for the publicity their prosecutions are certain to generate, but are also useful for whipping-up public opinion. The story of the “greedy doctor” who was not satisfied with his already inflated salary and had to become a drug dealer to earn even more excessive wealth continues to play well with the public. These are easy cases to bring in the court of public opinion.
The government’s use of the War on Drugs as an excuse to venture into the area of doctor-patient relations will continue to disrupt a growing segment of the medical community. The list of victims from this battle of the drug war includes more than just the names of doctors who were over-prosecuted by the federal government. There are countless thousands of chronically ill patients who can trace their inability to obtain proper treatment to federal prosecutors’ ongoing criminalization of the medical profession. This is part of a wider effort to criminalize more and more of what was formerly thought to be ordinary activity outside the reach of government attorneys. The idea behind this particular mechanism of control is for the DOJ to criminalize as many acts as possible and then simply charge the most attractive targets. Federal prosecutors have been successfully playing this game for years and are only becoming more proficient at securing prosecutions as the federal rate of conviction reaches the improbable 99%. Dr. Gianoli’s real crime may have been nothing more than being in the wrong place at the wrong time and providing a target of convenience for another self-serving federal prosecutor seeking a high profile prosecution. Other than the federal prosecutors, it is difficult to see who really benefits from Dr. Gianoli’s prosecution and imprisonment.