Police and prosecutors throughout Florida have significantly increased their attention on drug possession, distribution and trafficking crimes relating to pills (such as Oxycontin, Xanax, Hydrocodone, Oxycodone and many others) as opposed to more traditional drug crimes involving marijuana, cocaine, crack and heroin. New laws in Florida have been enacted to deal with pain clinics and people who acquire such pills without the proper prescription. Doctor shopping is one area where lawmakers, police and prosecutors are cracking down.
Doctor shopping, generically, deals with a person going to various doctors within the same time period (30 days) in order to get multiple prescriptions for the same or similar drugs. Because doctors and doctors’ offices may not have good networking systems that can tell them if a patient has seen a similar doctor or been given a related drug prescription in the recent past, people looking to acquire a large number of drugs may go to different doctors for prescriptions without each doctor knowing of the patient’s prior visits to the other doctors.
Florida passed a law making doctor shopping illegal. However, what must the state prove to establish that a person has broken the doctor shopping law and illegally obtained drugs without a prescription? Is it a crime if the patient fails to tell the doctor that he/she has seen another doctor and obtained a similar drug prescription within the last 30 days? Or, is it only a crime if the doctor or other medical personnel asks the patient if he/she has seen a different doctor and obtained a drug prescription within the last 30 days and the patient withholds that information or lies about it? The former places the affirmative duty on the patient to tell the doctor about a similar doctor visit. The latter places the initially duty on the doctor or doctor’s assistant and then requires the patient to tell the truth about other doctors and prescriptions. Of course, when talking about a serious felony charge in Florida, the distinction is important.
Specifically, the Florida law on doctor shopping makes it illegal for a person to withhold information that he/she has received a controlled substance or a prescription for a controlled substance within the past 30 days when seeking a controlled substance or a prescription for a controlled substance from a doctor. Does a person commit felony doctor shopping in Florida if he/she goes to an orthopedic doctor on Monday and gets a prescription for Oxycontin, sees another orthopedic doctor on Wednesday and gets a prescription for Oxycontin and then visits a pain management doctor on Friday to get a prescription for Hydrocodone if no one ever asks the patient if he/she has been to any other doctors within the past 30 days and the patient stays silent on the issue? The Florida doctor shopping law, as it is written, is not clear because it does not specifically indicate whether the patient has the duty to disclose a recent prescription for a drug or merely must truthfully answer the question about a recent drug prescription when asked.
A recent case in Florida (not in Jacksonville’s appellate district) addressed this issue. In that case, the court held that it is the patient’s duty to inform the doctor that he/she had seen a doctor and received a similar drug prescription within the past 30 days when the patient is seeking a drug prescription. In other words, if a patient is presently seeking a prescription for a controlled substance from a doctor, he/she must affirmatively disclose that he/she has seen a different doctor who gave him/her a similar drug prescription within the past 30 days, if that is the case. In order for the crime of doctor shopping to be committed, there is no requirement that the doctor or a doctor’s assistant first ask the patient if he/she has recently seen a different doctor and been given a similar drug prescription.
While this case does clarify the Florida doctor shopping law as it is written, it still leaves room for ambiguity. This affirmative duty on the patient to disclose a recent drug prescription only applies where the patient is presently seeking a drug prescription. Therefore, if a patient sees a doctor for the second time in a week with complaints of serious pain with the idea of getting a drug prescription, but does not specifically ask for the prescription, the patient would not have to disclose the prior doctor visit and prescription and could not be guilty of doctor shopping under this recent case.