Housed in a federal prison since April 2007, Bernard Rottschaefer has never stopped fighting for a new trial. But there's a problem overturning his conviction for wrongfully prescribing narcotics to his patients: The justice system keeps coming up with different diagnoses for his case.
In March 2004, federal prosecutors convicted Rottschaefer, a former physician from Plum, with 153 counts of illegally prescribing narcotics to five patients whom prosecutors alleged didn't need the drugs. Four of the five women claimed they received the drugs in exchange for sex. But as City Paper previously reported in 2006, at least three of the five women got breaks on drug charges they were facing in exchange for testifying against Rottschaefer. And one of them, Jennifer Riggle, wrote letters in which she said she lied about her relationship with Rottschaefer in order to catch a break.
"I think they want to subpened [sic] me to a grand jury about the doctor I was seeing. They're saying he was bribing patients with sex for pills, but that never happened to me," Riggle wrote. "DEA said they will cut me a deal for good testimony. Everyone else is testifying against him."
At the time, prosecutors said Riggle's statements were irrelevant. In a written filing, the U.S. Attorney's office argued that, "The question for the jury ... was whether he had written these prescriptions for a legitimate medical reason." If prosecutors could show there was no medical reason for the prescriptions, in other words, it didn't matter if sex was the real reason or not.
But Rottschaefer's most recent appeal was denied ... by a federal judge who says the sex accusations were at the heart of the case after all.
"It's amazing to me that they can keep changing the core of their case," says Dr. Jane Orient, executive director of the Association of American Physicians and Surgeons.
The organization has followed Rottschaefer's fate carefully, because many doctors worry that other physicians could also be punished simply for prescribing powerful pain-killers. And so far, Orient says, she's been "shocked and appalled" by what she's seen.
- Bernard Rottschaefer
Even Rottschaefer himself gets bogged down in it all. In an e-mail interview he says that "perhaps too much evidence has come out" since his trial. His attorneys have alleged that the patients lied on the stand, and that, combined with other evidence, should be enough for a new trial.
"This evidence is overwhelming," Rottschaefer says. "I truly believe that the prosecution and the courts know that mistakes have been made but that they are unwilling to admit such a situation has occurred.
"With so many disappointments, I am now convinced that I have little possibility to receive a new trial. I remain personally positive but pessimistic as to the fairness and mercy of the federal criminal legal system as it has been displayed to me in my case."
Rottschaefer has tried three appeals already. Each has been denied, and at this point he has exhausted enough appeals that he must now ask a federal judge just for the right to make another appeal.
In September, Rottschaefer attorney Thomas Farrell went to U.S. District Court Judge Gary Lancaster to do so. This time, Farrell argued that Rottschaefer's original attorney at trial, Irving Green, gave Rottschaefer inadequate counsel. At trial, prosecutors argued that Rottschaefer gave his female patients an improper course of treatment by prescribing powerful narcotics -- such as OxyContin, Xanax and Fentanyl -- for what should have been minor ailments, if any existed at all. The defense could have found its own medical expert to refute those accusations, but Green didn't retain one.
"This kind of case cannot be defended without the assistance of a defense expert to refute the government expert's contention that the conduct violated the standards of professional conduct," Farrell wrote.
During a hearing before Lancaster in November, attorney John Ceraso testified that Green -- whom Ceraso assisted in the criminal trial -- twice sought to find an expert witness. The attorneys spoke to two such experts, both of whom declined to help.
What makes Green's failure more notable is that Rottschaefer was able to find an expert witness during civil lawsuits related to the case on his attorney's second attempt. In fact even the first witness they found was willing to help Rottschaefer, but his schedule wouldn't allow him to take on a case of this size. The five women who testified against him also sued him for malpractice in April 2004. But in those cases, Rottschaefer hired an expert, Dr. Marc Itskowitz, who testified that Rottschaefer's prescriptions were reasonable, based on the women's medical history and complaints. During depositions taken for those cases, the women admitted that they did have the injuries and ailments that they were being treated for.
Additionally, evidence surfaced in the November hearing that one of them, in fact, acknowledged getting the exact same course of treatment from another physician.
All but one of the malpractice suits has been dismissed, and Itskowitz is now being cited as an expert in the appeal.
But Lancaster was not swayed. In a November 2009 ruling, Lancaster held that Ceraso and Green made a good-faith effort to hire an expert -- and if one couldn't be found, Rottschaefer couldn't fault them for being ineffective. Besides, he said, Itskowitz's expert testimony didn't take into account the drugs-for-sex allegation.
"[E]ven [Rottschaefer's] current expert, Dr. Itskowitz, had to qualify his opinion by excluding the fact the petitioner was exchanging sex for drugs," Lancaster wrote. "The fact that petitioner was exchanging sex for drugs was central to the government's case against him.
"In short, the jury believed that petitioner traded controlled substances for sexual favors from these patients," Lancaster added. "Whether these patients may arguably have had a medical use for the controlled substances is, therefore, not dispositive."
But prosecutors argued that there wasn't a medical use for the drugs -- and that this was the heart of the case. In 2006, Mary Beth Buchanan, then the U.S. attorney for Western Pennsylvania, told the Pittsburgh Tribune-Review that even if they were false, the sex allegations were beside the point. "The jury found there was no legitimate reason to prescribe the drugs, and that's what they convicted him of," she told the paper. And until now, judges have ruled along the same lines.
In an April 2006 ruling denying one of Rottschaefer's earlier appeals, federal appeals court judge Marjorie Rendell wrote, "The crime for which Rottschaefer was convicted was not, as he claims, trading drugs for sex. Rather, he was convicted of unlawfully distributing controlled substances outside the course of professional practice."
But in Lancaster's ruling, Rottschaefer's supporters see a catch-22.
"Sex for drugs is refuted, so they say the core of their case is standard of care," says Orient, of the Association of American Physicians and Surgeons. But when a medical expert appears to cast doubt on that evidence, she says, "they go back to sex for drugs and the courts are apparently fine with upholding that."
Rottschaefer says the "piecemeal" approach to the appellate process is one of the reasons that he is still incarcerated.
"I do not believe that the federal criminal legal system has any established pattern of oversight that looks at the whole," he writes. "They piecemeal parts to hold a jury or a plea verdict as hard as they can at the expense of justice and mercy.
"The federal criminal legal system works overtime to preserve a jury verdict. The federal criminal legal system refuses to admit that they can make an error."
Farrell, the defense attorney, makes a similar argument. According to previous rulings, evidence of Riggle's lies could "undermine the credibility of the patient witnesses," but the "convictions were upheld because they allege that prescribing those drugs was not ... legitimate medical practice." Now, he says, the courts are preventing his client from offering evidence that the course of treatment was legitimate.
Rottschaefer is running out of options. Farrell is appealing Lancaster's ruling to the Third Circuit Court of Appeals. Even if he wins, "There are a lot of hurdles and this is just the first one." Even if the court does allow Rottschaefer to appeal, that doesn't mean his appeal will be successful. And even if it is, there's no guarantee a new trial would turn out any differently.
"If we win here," Farrell says, "all we have won is the right to appeal."
But if he loses, Rottschaefer will, once and for all, no longer be able to seek a second opinion.