Oklahoma sued opioid manufacturers amid a nationwide crisis. The state jailed drug dealers. But what happened to the doctors the state claimed prescribed too many opioids?
In May 2017, less than a month before the state filed a lawsuit against drug companies, the Oklahoma Board of Medical Licensure and Supervision held disciplinary hearings for two physicians accused of misconduct in prescribing opioids.
One, James Ferris, was accused of conspiring with a pharmacist to illegally distribute thousands of opioid prescriptions. Investigators are unsure how many ended up in the black market. The other, Scott Lilly, reportedly had as many as 14 patients die from acute drug toxicity — deaths that investigators claim were a result of his prescribing practices.
The board declined to revoke either physician’s license.
Both cases illustrate a complex, often overlooked component of Oklahoma’s opioid crisis, which state attorneys claimed left at least 6,000 dead since 2000.
Oklahoma Attorney General Mike Hunter has aggressively gone after pharmaceutical companies, winning multimillion dollar verdicts pledged to fund addiction treatment. Local prosecutors have targeted drug dealers in homicide cases after overdose deaths.
But accountability for doctors is somewhere between the collective — yet isolated — efforts of state prosecutors, narcotics agents and an appointed board given the uncomfortable task of policing its peers.
Former Assistant Attorney General Jason Seay prosecuted both cases on the eve of the state’s multimillion dollar offensive against the opioid epidemic. Seay said the cases represent two distinct issues the medical board has to reckon with: Ferris, who is accused of participating in a scheme to distribute as many opioids in as little time as possible, and those like Lilly, a doctor described as trying to do good but in the wrong ways.
“There are guys that are doing this s--- with clear criminal intent because they’re greedy bastards,” Seay said. “There are people on the other hand, though, that got in over their heads.”
Attorneys, agents and agencies
When appointed in 2017, Attorney General Mike Hunter and the Oklahoma Commission on Opioid Abuse set out to diagnose the state’s epidemic. The state filed its lawsuit against pharmaceutical companies in June 2017, and Hunter said his office has also criminally charged a handful of doctors in connection to “criminally reckless” conduct in prescribing opioids.
But there’s more to why that number is only a handful, given the 1.4 billion prescription pain pills supplied to the state from 2006 to 2012. Prosecutors at any level have to prove more than bad medical judgment. There has to be some evidence of gain for the physician or criminal intent in prescribing or distributing.
“Situations have to just be an egregious case of malfeasance with regard to passing out pills like they’re candy,” Hunter said. “Or just recklessness with regard to how patients are diagnosed and the extent to which they’re provided prescription opioids. I think that we’ve only had a half-dozen in three years.”
The Attorney General’s Office supplies attorneys for medical board disciplinary hearings, but Hunter said his office remains otherwise uninvolved. He said they leave those cases to the board to decide, in part, so as not to interfere with the doctor-patient relationship.
“One of the things we resisted in the opioid case was allowing the pharmaceutical companies to use the doctors as scapegoats,” Hunter said. “We resisted that because ... the extent to which doctors had been brainwashed over the last two decades with regard to opioid prescribing was so utterly calculated and diabolical.”
No agency is charged with coordinating efforts to investigate and prosecute physicians. The attorney general’s office isn’t involved unless a case is referred for prosecution. Two agencies have primary jurisdiction in most opioid cases involving physicians: the medical board that evaluates a doctor’s conduct, and the Oklahoma Bureau of Narcotics and Dangerous Drugs, which enforces rules on controlled dangerous substances.
The medical board, with seven physicians and four other members appointed by the governor, functions similarly to a traditional criminal system. Complaints are often settled in an agreement, but full public hearings mimic criminal proceedings — with attorneys, witnesses and evidence. The board president presides as a judge, and other board members hear the case and may ask questions. After closing arguments, the board goes into a closed-door session to decide on the case before a public vote.
Lyle Kelsey, the board’s executive director, leads the board staff. His office includes the board investigators. No members of the medical board responded to a request for comment on this story.
OBN, which often works in conjunction with the medical board, licenses the prescribing, transport, distribution and manufacture of controlled substances. Oklahoma is also a dual-registration state, requiring doctors to have licenses from both the OBN and the Drug Enforcement Administration.
Spokesman Mark Woodward said OBN is often aware of actions by state regulatory boards and may review those cases to take action against prescribers. Follow-up action by the OBN isn’t required, but Woodward said it’s often the case. Those actions sometimes lack criminal charges.
“We sometimes conduct investigations that do result in us presenting charges to a district attorney,” Woodward said. “And sometimes we do investigations where we don’t see criminal violations, but we do see violations of opioid rules such as where they stored the drugs and who had access to them.”
While the medical board polices a doctor’s ability to practice medicine, the OBN specifically regulates an ability to prescribe and distribute. Although the medical board has five full-time investigators, some of them former OBN diversion agents, the OBN has its entire Diversion Division dedicated to controlled substances.
But they aren’t doctors and don’t prosecute on medical decisions, Woodward said.
“We never use the term overprescribed because we do leave that up to the medical boards and their experts,” Woodward said. “We certainly do not get into the business of determining appropriate medical doses. What we do look at are the reasons behind the prescriptions, for example if they are writing prescriptions for a patient without a medical necessity.”
‘Magnitude of difference’
The medical board began its investigation into James Michael Ferris after a pharmacy board investigator found Ferris’ blank, pre-signed prescriptions during an inspection at a Wellston clinic in December 2015, according to medical board records.
Ferris and a pharmacist, Katherine Dossey, were accused of setting up a scheme whereby homebound patients would be automatically re-prescribed Schedule II opioids. The board’s case included 922 prescribing violations.
Ferris’ and Dossey’s attorneys of record did not respond to multiple requests for comment for this story.
The state and board staff both sought to revoke Ferris’ license and impose a heavy fine, according to a recording of Ferris’ medical board disciplinary hearing. In Seay’s opening statement, he sought to dispel any defense of Ferris’ actions as mistakes.
“This was not inadvertent or inattentiveness due to a practitioner,” Seay said at the hearing. “This is a business model done by a corporation. This board should send a strong public policy message that the business model for raw dispensary of CDS in violation of the Controlled Dangerous Substances Act absolutely will not be tolerated in this state.”
In one instance mentioned at the hearing, a prescription was automatically renewed and sent to a patient who had already died. The scheme reportedly broke the “opioid safety net,” which an investigator described as a system of checks designed to keep opioids from diversion. The investigator testified there was no way to definitively know the number of Ferris’ prescriptions, as many as 3,000, that were diverted to the black market.
The board, instead of the revocation prosecutors sought, suspended Ferris’ license for 30 days and imposed a $5,000 fine. One board member, Bob Howard of Oklahoma City, voted against the measure because he didn’t feel the punishment was severe enough, according to board filings.
In the meantime, Seay and the board staff were aware of a federal case against Ferris and Dossey building in the Western District of Oklahoma.
Seay said the Attorney General’s Office chose not to pursue Ferris criminally to avoid interfering with the federal case, but the board’s decision against the state’s recommendation still came as a shock to him and to Ferris’ defense counsel.
“It seemed to be because they decided that perhaps he was taken advantage of by (Dossey),” Seay said. “They pretty much bought into that. That’s why I think he got the leniency that he got.”
On June 20, 2018, the federal case produced a 103-count indictment against Ferris, Dossey and the clinic’s owner. The three are awaiting trial on 62 counts of distributing a Schedule II controlled dangerous substance and 41 counts of Medicare fraud for allegedly billing Medicare for invalid prescriptions.
Kelsey said the indictment vindicated the state’s original argument in wanting Ferris’ license revoked.
Seay said cases like Ferris’, in which prosecutors allege a business enterprise, ought to be handled by OBN. It’s difficult to prove criminal intent in cases of overprescribing, but when a line can be drawn between a doctor’s benefit and an unnecessary prescription, Seay said it’s not the board’s strength.
“OBN has more resources and are better situated to adjudicate those cases,” Seay said. “By resources, I mean they’ve got helicopters, guys with big guns and they can go around and arrest people. The board investigators ... there’s only, like, five of them, and they are very busy all the time.”
‘If you can’t land a plane …’
The Oklahoma Bureau of Narcotics and Dangerous Drugs, in conjunction with a medical board investigator, served a search warrant at Scott Lilly’s office in Muskogee on July 9, 2015, after parallel investigations into Lilly’s prescribing practices.
Lilly declined to comment for this story; his attorney, Vicki Behenna, answered questions on his behalf.
In practice, Lilly was an oncologist, but the board began investigating after the family member of a patient filed a complaint, according to board records. The board investigator testified at Lilly’s hearing that the OBN was also looking into eight suspicious overdoses possibly connected to Lilly’s prescribing.
When the board staff filed its formal complaint against Lilly on July 25, 2015, “at least two” of Lilly’s patients had died since March. At least 12 others had died since 2010, according to the complaint. Seay said at the hearing that Lilly’s decisions reflected bad judgment in bad situations.
“If you can’t land a plane, you probably shouldn’t take it off,” Seay said.
No one at the hearing disputed Lilly’s ability as a physician; in fact, his diligence and skill in medicine were praised. Seay seized on his lack of training in chronic pain management outside the treatment of cancer. Lilly prescribed opioids to patients for pain but often lacked patient pain contracts and rarely did drug screens to monitor his patients, according to an audio recording of his hearing.
Behenna said he had taken on high-risk patients for chronic pain that other clinics had refused. She said Lilly knew mistakes had been made, but he was not solely to blame because his patients had an equal responsibility to take medications as prescribed.
A state narcotics agent testified that he recalled Lilly saying he could “just not say no” and that he knew some patients were known drug abusers when speaking to investigators in 2015. Lilly surrendered his OBN license the day agents raided his office.
The state’s expert witness, Dr. Robert Brittingham, reviewed patients’ medical records and described Lilly’s prescribing practices as a “really, really smart doctor doing stupid stuff.”
The hearing ran long enough that it lost a quorum on May 5, 2017, because board members are also physicians frequently on call. Between then and when the meeting reconvened, Behenna claimed she reached an agreement with prosecutors for Lilly to serve a 30-day suspension with a $25,000 fine. However, in that same time frame, the state filed its suit against pharmaceutical companies on June 30, and the agreement in principle was never formalized.
Seay said in his closing statement there were “a lot of deaths and they happened fast,” and that the board “should send a strong message that this type of prescribing practices cannot and should not be tolerated.”
On the other side, Behenna disputed the need to send a message to doctors.
“To persecute physicians who are trying to treat chronic pain is not the message to send,” Behenna said. “If there is an addiction problem in the state of Oklahoma and this nation, we should be treating the addiction.”
Despite prosecutors seeking revocation and a heavy fine, the board unanimously returned a six-month suspension and a $20,000 fine, along with a ban on prescribing controlled dangerous substances.
Medical board filings show Lilly has not practiced medicine since the warrant service, though he successfully appealed for the right to prescribe Schedule V substances, like low-dosage cough syrup, in May 2019. OBN records show Lilly was re-issued a limited prescribing license in May and works at a clinic in Bixby.
To date, Lilly hasn’t been criminally prosecuted. Seay said thanks to the board’s restrictions on Lilly’s prescribing and his surrendered OBN license, the flow of drugs stopped. Despite concerns with some of Lilly’s patients, Seay said he doesn’t think Lilly did anything maliciously or with criminal intent.
Seay said the board is built to discern between good and bad choices by doctors. It’s why he said he thinks the board isn’t quite sure where the bar is for holding doctors accountable.
“For policy reasons, you will have leadership — who wants to appear hard on cracking down on opioids — just constantly ask for the max on these things,” Seay said. “But the individuals actually responsible for policing the profession will probably invariably have a different opinion because they understand context in this particular case matters.
“You’ve had the standard of care evolving throughout that timeframe where we were understanding more about how opioids work, and the problems with addiction wound up being more serious than what was previously thought.”
Standard of accountability
The OBN and medical board both have authority to revoke or suspend licenses. The board also has the option to impose a fine of up to $5,000 for each violation, impose certain restrictions and mandate continued education for physicians.
State law enforcement deals in black and white with its rules for controlled substances, and its agents’ knowledge of criminal enterprises is equivalent to board members’ knowledge of medicine. Short of prison time, the standard of accountability for doctors lies somewhere between reprimand and license revocation.
Seay said he believes the board for the most part has held doctors sufficiently accountable. The state leaves regulation of the medical profession to itself, not to judges, attorneys or other arbitrators. It’s why he said the board faces an ongoing challenge in combating the opioid crisis.
“The board is tasked with the unenviable job of telling their peers whether or not they get to keep their licenses, their profession, their livelihood based on decisions they made on individual patients years before,” Seay said. “The board has to come to terms with the fact that the standard of care may have been different than what the profession was actually doing.
“In hindsight, we would want to hold doctors to a higher standard than what they did, previously. I think that’s a hard position to put those folks in.”