United States District Court, D. Connecticut
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
S. Ahuja, MD, Defendant, represented by Glenn Allan Gazin,
Law Office of Glen Gazin.
RULING RE: MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC.
C. HALL, District Judge.
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. Â§ 801 et. seq. The action
includes twenty-three counts of alleged violations of the CSA
and its related regulations.
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.
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.
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, Â¶Â¶ 2-3; Compl. at 1,
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. Declaration in Response to Motion for
Summary Judgment ("Decl.") (Doc. No. 75-2) Â¶Â¶
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. Decl. Â¶ 16; Investigation Report
("Investigation Rep.") (Doc. No. 74-1) Â¶Â¶ 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. Decl. Â¶ 17; Investigation Rep. Â¶Â¶ 23,
133. Dr. Ahuja told Johnson he does not keep patient charts
when treating relatives. Decl. Â¶ 13. Specifically, Dr. Ahuja
told investigators he lacked charts for his son and brother.
Investigation Rep. Â¶ 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. Â¶Â¶ 14, 16-17. 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 . Â¶ 15.
Dr. Ahuja first told investigators he does not dispense
medications and then told investigators he does.
Investigation Rep. Â¶ 25. Dr. Ahuja told investigators he
"mostly'" does not treat family members and
denied prescribing to family members. Id . Â¶ 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 . Â¶ 22.
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).
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).
STANDARD OF REVIEW
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 ...