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United States v. Ahuja

United States District Court, D. Connecticut

July 21, 2016

UNITED STATES OF AMERICA, Petitioner,
v.
AJAY S. AHUJA, M.D., Defendant.

          USA, Plaintiff, represented by Alan M. Soloway, U.S. Attorney's Office, David Christopher Nelson, U.S. Attorney's Office & John B. Hughes, U.S. Attorney's Office.

          Ajay S. Ahuja, MD, Defendant, represented by Glenn Allan Gazin, Law Office of Glen Gazin.

          RULING RE: MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. NO. 74)

          JANET C. HALL, District Judge.

         I. INTRODUCTION

         Plaintiff, the United States ("the Government"), brings this action against defendant, Dr. Ajay S. Ahuja, M.D. ("Dr. Ahuja"), pursuant to the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et. seq. The action includes twenty-three counts of alleged violations of the CSA and its related regulations.

         Dr. Ahuja filed a Motion for Partial Summary Judgment ("Mot. for Summ. J.") (Doc. No. 74), as to four of the counts, numbered XIX through XXII. Each of these four counts alleges that Dr. Ahuja prescribed or otherwise dispensed controlled substances outside the usual course of his professional practice, thus violating the CSA and sections 1306.21(b) and 1306.04(a) of title 21 of the Code of Federal Regulations. Complaint ("Compl.") (Doc. No. 2) at 6-7. Each of these four counts alleges that Dr. Ahuja dispensed said substances to individuals ("the Recipients") for whom Dr. Ahuja had told investigators he did not maintain a patient chart. Compl. at 6-7.

         Dr. Ahuja argues that the Government lacks power to bring an action against a physician for acting outside the usual course of professional practice by failing to maintain a patient chart. Mot. for Summ. J. at 3. Dr. Ahuja bases his argument on the Supreme Court decision Gonzales v. Oregon, 546 U.S. 243 (2006). See Mot. for Summ. J. at 3-4. For the reasons set forth below, Dr. Ahuja's Motion for Summary Judgment is DENIED.

         II. FACTUAL BACKGROUND[1]

         The parties agree as to very little. The parties agree Dr. Ahuja is a physician. Form 26(f) Report of Parties' Planning Meeting (Doc. No. 33) at 2. The parties agree Dr. Ahuja is registered as a practitioner with the United States Department of Justice Drug Enforcement Administration ("DEA") and authorized to handle controlled substances. Answer (Doc. No. 36) at 1, ¶¶ 2-3; Compl. at 1, ¶¶ 2-3.

         DEA Diversion Investigator Marcie Johnson ("Johnson") has written the following: Dr. Ahuja's dispensing records reveal Dr. Ahuja dispensed controlled substances to two of the Recipients, to whom the parties refer as Jane Doe #1 and John Doe #1.[2] Declaration in Response to Motion for Summary Judgment ("Decl.") (Doc. No. 75-2) ¶¶ 14-15. Investigators uncovered prescriptions Dr. Ahuja wrote for a third Recipient, Dr. Ahuja's son, for thirty 12.5 mg Zolpidem CR tablets on June 28, 2013; five of the same on July 29, 2013; twenty-five of the same on August 5, 2013; thirty of the same on September 30, 2013; and thirty of the same on October 28, 2013.[3] Decl. ¶ 16; Investigation Report ("Investigation Rep.") (Doc. No. 74-1) ¶¶ 23, 133. Investigators uncovered prescriptions Dr. Ahuja wrote for the final Recipient, Dr. Ahuja's brother, for two-hundred milliliters of Cheratussin AC on June 9, 2012; thirty tablets of Hydrocodone Bitartrate on November 24, 2012; and one-hundred milliliters of Hydrocodone Chlorpheniramine on March 27, 2013.[4] Decl. ¶ 17; Investigation Rep. ¶¶ 23, 133. Dr. Ahuja told Johnson he does not keep patient charts when treating relatives. Decl. ¶ 13. Specifically, Dr. Ahuja told investigators he lacked charts for his son and brother. Investigation Rep. ¶ 21. In fact, while Dr. Ahuja lacked charts for his son and brother and for Jane Doe #1 that corresponded to the relevant time periods, Dr. Ahuja had charts for these three Recipients outside the relevant periods. Decl. ¶¶ 14, 16-17.[5] Dr. Ahuja also had a chart for John Doe #1, but Johnson considered the chart inadequate to demonstrate a medically-valid reason for Dr. Ahuja's dispensations to John Doe #1. Id . ¶ 15. Dr. Ahuja first told investigators he does not dispense medications and then told investigators he does. Investigation Rep. ¶ 25. Dr. Ahuja told investigators he "mostly'" does not treat family members and denied prescribing to family members. Id . ¶ 21. When asked if he would sign a consent not to treat family members, however, Dr. Ahuja told investigators he wanted to continue treating family members. Id . ¶ 22.

         Based on a review of patient records, the Government's proffered medical expert, Dr. Adam E. Perrin, M.D. ("Dr. Perrin") opines that Dr. Ahuja dispensed controlled medications outside the normal course of professional practice and without a legitimate medical purpose. Dr. Perrin's Expert Medical Opinion ("Perrin Op.") (Doc. No. 74-2) at 7. Dr. Perrin states that Dr. Ahuja "clearly did not adhere to accepted practice standards as [ ] pertains to the safe and proper distribution of controlled medications." Id. at 9. Dr. Perrin indicates that a physician ought to document a controlled substance prescription in the medical record. Id. at 8. Dr. Perrin states that, when prescribing or otherwise dispensing controlled substances, a physician should keep "[a]ccurate and complete documentation." Id. at 8. According to Dr. Perrin, a physician has a responsibility to record in a chart the reason he prescribes a controlled substance, and the fact that he examined the patient when making the prescription. Dr. Perrin Deposition ("Perrin Dep.") (excerpts in Doc. No. 74-3 and Doc. No. 75-5) at 79. Dr. Perrin describes Dr. Ahuja's patient records as "cursory." Perrin Op. at 7. Dr. Ahuja's proffered medical expert, Dr. Gerald J. Hansen, M.D. ("Dr. Hansen"), states, however, that "[i]t is possible for a physician to provide care to a patient that is within the accepted standards of care, and even excellent care, without full or partial documentation." Dr. Hansen Letter (Doc. No. 75-7).

         Based on review of Dr. Ahuja's patient records, Dr. Perrin opines that Dr. Ahuja violated a medical code of ethics by the way Dr. Ahuja prescribed controlled medications to family members. Perrin Op. at 7. Dr. Perrin states that an ethical concern exists when physicians prescribe for family members-especially when physicians prescribe controlled substances. Perrin Dep. at 96. Dr. Perrin reports concern within the medical establishment over the ethics of treating family members generally. Perrin Op. at 8. Dr. Hansen opines, however, that whether it is proper for a physician to treat a family member depends on the situation. Dr. Hansen Deposition ("Hansen Dep.") (Doc. No. 75-6) at 47. Dr. Hansen says that to treat a family member does not necessarily create a conflict. Id. at 58. Dr. Hansen states that a physician who treats a family member is "supposed to" maintain a patient chart for the family member, and that it would be best to note in such chart any controlled substance prescribed. Id. at 47-48. In practice, however, Dr. Hansen says that physicians do not always keep charts for family members they treat. Id. at 48. Discussing whether Dr. Ahuja should have kept patient charts when caring for family members, Dr. Hansen opines that Dr. Ahuja would have been intimately aware of these family members' medical histories, medications, and allergies; and that he would easily be able to perform a physical examination. Dr. Hansen Letter (Doc. No. 75-7).

         III. STANDARD OF REVIEW

         On a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that he is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once the moving party has met its burden, in order to defeat the motion, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial, " Anderson, 477 U.S. at ...


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