In preparation for giving her patients as much time as possible to find another doctor, Dr. Cheek saw all her patients for the last time in the month of May before her license was suspended. Luckily, the law had changed in December, 2008, and patients were allowed to receive prescriptions of controlled drugs for three months at a time. Planning on getting her license restored in the fall, Dr. Cheek maintained her office staff during the summer. And throughout that time, they kept getting calls from patients in distress. They couldn’t find another doctor that would accept them. First, most of Dr. Cheek’s patients were in categories that other doctors in the area didn’t accept because they couldn’t make any money seeing them—the Medicare, Medicaid, disabled, and uninsured self-pay. And then if they could get past that hurdle, when they told the doctor’s office that their previous doctor was Dr. Cheek, they would be told “We’re not taking her patients.” Obviously the fear was that the target would be transferred to their back.
So when August rolled around patients were running out of their medications and going into withdrawal. Dr. Cheek lifted up the problem to God at a breakfast of the background workers at the New River Valley Emmaus Walk. She was immediately introduced to another worker, Dr. Kathleen Schultz. Unbelievable! Dr. Schultz was a retired FP with experience (so she claimed) in pain management. She was willing to come to the office one day per week, see the patients, and renew their meds. So Dr. Cheek’s business, New River Medical Associates, hired Dr. Schultz locum tenens. She began work in September, 2008. At first the regular staff was there to work the office. But when the Board of Medicine strung out reinstating Dr. Cheek’s license, she eventually had to lay off her staff in October. So then Dr. Cheek served as Dr. Schultz’s receptionist. But she made it clear to the patients that Dr. Schultz was the practicing physician.
Dr. Cheek reapplied for her medical license at the first opportunity in October, 2008—5 months following her plea agreement and sentencing. The Virginia Board of Medicine made her jump through a few hoops first. She had to take a test to show competence. Although most of her practice had become a pain management practice, and several areas of family practice were foreign to her, like pediatrics, she achieved an 82 on the test. Then she had to attend some seminars on the law in medicine. Finally, on February 19, 2009, her license was restored. She reopened her practice on February 23, 2009. But because she still didn’t have a DEA certificate to write prescriptions for controlled drugs, Dr. Schultz stayed to provide for those patients on pain medicine. In order to protect Dr. Schultz from being associated with the government targeting, they decided to make Dr. Schultz owner of her own practice, not employed by NRMA after Feb 23. Patients were first seen by Dr. Cheek, however, because it was supposed to be her practice once the DEA certificate was reinstated. And Dr. Cheek could offer alternative treatments that would treat the cause of the pain and heal the condition, not just continue the pain medicine.
That first day back at work was very stressful for Dr. Cheek. The biggest thing on her mind was “Can I remember how to do a History and Physical?” and “Will I do everything I need to do?” Because she had been able to write controlled substances since day one as a medical student, she completely forgot about the fact that she couldn’t write them anymore. So the first three patients she saw were given scripts for their standard medications which included pain medicine. Being on a computer patient record, the scripts just printed automatically, and Dr. Cheek automatically signed them. Two hours later it dawned on her that those scripts were not legal. (Now being not legal is different from being criminal, as will be explained later.) She called the patients, told them the scripts were not legal and not to fill them. One had already been filled. One was at a pharmacy, but Dr. Schultz called the pharmacy and had that script rewritten in her name. And one brought the script back to the office and got a replacement from Dr. Schultz. Dr. Cheek was open about her mistake—did not try to cover it up, and in fact, wrote the DEA agent informing him of the mistake.
For the explanation of the difference between illegal and criminal, here is the law from the Controlled Substance Act:
- 841. Prohibited acts A.
- (a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally –
- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
- (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
- (11) The term ”distribute” means to deliver (other than by administering or dispensing) a controlled substance or a listed chemical. The term ”distributor” means a person who so delivers a controlled substance or a listed chemical.
With respect to what Dr. Cheek did accidentally on that first day, the law specifically states that the person must perform the act knowingly or intentionally. The only presentation to the jury in Dr. Cheek’s case by the prosecution was the statement by US Attorney Jennifer Waering during her closing statement that “Dr. Cheek knew what she was doing” with a disgusted sound of her voice. But the government showed no intent or knowledge of illegal distribution. And Dr. Cheek admitted herself to making the mistake in her letter to DEA agent Steven Tomaziefski.
Another misuse of the CSA was charging Dr. Cheek with prescriptions where the substance was never “delivered to an ultimate user”. Two of the charges were for prescriptions that were held at the pharmacy and were never filled due to Dr. Cheek’s own diligence and her stopping their being filled. Any yet, because those prescriptions were not returned to Dr. Cheek, the US Attorney added them to the charges.
Her DEA certificate should have been recertified by the end of March. When that didn’t happen she started calling the DEA. Every person she talked to, through to Walter Staples in Richmond, gave her the run around. By May she knew she was being targeted again. Her questions to the DEA agent went unanswered. She explained the process she and Dr. Schultz were using to take care of the pain patients. She asked for guidance, and to be told if anything they were doing wasn’t right. Naturally if the DEA agent had told her then what they charged her with later as being criminal, she would have stopped. But as the law was written, she and Dr. Schultz were doing everything legal. Dr. Cheek never prescribed controlled drugs except the three mistakes that first day, and 2 other mistakes—one for Lyrica that she did not know was controlled, and one that simply got signed in a stack of scripts and she didn’t even know the patient got it.
To make sure that mistakes did not get through and get filled, Dr. Cheek had also written a letter to the pharmacies she allowed her patients to use, explaining that she was back in practice, but did not have authorization to write controlled drugs. She asked the pharmacist’s help in stopping any prescriptions that came through that were controlled. Dr. Cheek was afraid of drugs that she did not know were controlled, and might write them without knowing. That happened with the Lyrica. Probably that is the reason why the pharmacists perjured themselves, because they knew they could be prosecuted by the same law Dr. Cheek was being, since they were the ones to “dispense” the drugs to the patients.
Usually Dr. Schultz signed all the scripts when she reviewed the patients to be seen. Then if the patient saw Dr. Cheek, she simply gave Dr. Schultz’s scripts to the patient. There is nothing illegal about that. As long as the doctor of record is the one to sign the script, and does so knowingly, the script is legal. If a patient didn’t get a script by accident, then the office would call Dr. Schultz, and she would approve the call-in over the phone. The other problem was new patients. Another doctor who treated pain had his DEA certificate revoked. His patients made appointments to be seen by Dr. Cheek. But Dr. Cheek couldn’t give them medications at that initial visit. If the patient was in such dire straits with withdrawal that they couldn’t wait to see Dr. Schultz, then Dr. Cheek called Dr. Schultz, presented the patient, and Dr. Schultz ordered Lortab to cover until her next office visit. That is also a legal thing to do per the Code of Virginia. A doctor can act on a request for a patient they haven’t personally seen if it comes from another doctor in their practice, or a consulting physician. Dr. Cheek was a consulting physician.
This method was continue for 18 months. Finally, realizing something was wrong with the fact that the government wasn’t giving her a DEA certificate, Dr. Cheek finally told Dr. Schultz that she would have to call in all the scripts herself. It was at that point then, that the government denied Dr. Cheek’s certificate in writing, and raided her office. She wonders how long they would have perpetuated the farce if Dr. Cheek had continued doing the calling for Dr. Schultz. Obviously the government didn’t consider that action to be too harmful to the population. They were just allowing charges to accumulate to justify their salaries/promotions/being. In the end, over 18 months approximately 80 scripts had been called in for patients. That averages one per week. Considering Dr. Cheek was evaluating 8-12 new patients per week, that does not represent an attempt to “distribute”, but an attempt to prevent harm to patients that have suddenly had their pain meds stopped by government interference.