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25 Sep 2012

Document Examination Leads To Exoneration On Prescription Fraud

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RKG (not real initials) was employed as a deputy sheriff. On June 1, 2005, he was arrested on felony warrants charging prescription fraud and doctor shopping. The next day, he retained Jeffrey H. Garland.

On July 21, 2005, the State formally charged doctor shopping by failing to disclose information. The alleged criminal act occurred on May 18, 2004.

The defense investigation uncovered cell phone records which proved that RKG called the dentist’s after-hours telephone number. The same records demonstrated that the dentist called RKG back. After this telephone conference, RKG went to a hospital emergency room for treatment. The defense investigation established that RKG truthfully and completely disclosed his health care providers to the emergency room personnel. The defendant was given a prescription for a controlled substance by the emergency room, but only after full disclosure. RKG, two days later, met with the dentist. Although the dentist’s written records from May 18 did not disclose the telephone consultation several days earlier, the cell phone records confirmed the consultation. The dentist, later on during his deposition, also confirmed the consultation.

Recognizing the problem, the State elected to amend the Information by changing the dates of the first charge of doctor shopping and adding the charges of possession of oxycodone and prescription fraud.

During the course of discovery, Attorney Garland deposed the dentist and his staff. The depositions established that the dental office used a software system manufactured by Dentrix Systems, Inc. The dental office assumed that the Dentrix System was complete, infallible and secure. These assumptions proved to be unwarranted.

The dentist and his staff were deposed, by agreement, at the dental office. The staff was cooperative and provided access to the Dentrix database applicable to RKG’s treatment. Two things were discovered by Attorney Garland in conducting this examination. First, the “notes” section reflected a telephone call seeking a prescription refill which was not referenced elsewhere. Second, Attorney Garland confirmed that the Dentrix System would not reflect the date of a new prescription if the “reprint” button were hit without inserting a new date.

The prosecuting detective assumed that a prescription was improperly copied either by a copy machine or a computer imager. The detective assumed that the improperly duplicated prescription was then forged and passed off to a pharmacy as real. The defense investigation contradicted these assumptions with the information uncovered from the Dentrix System, to-wit: That RKG called on the day of one questioned transaction and that the System would not reflect the issuance of a new prescription if the “reprint” button were hit.

Everyone has heard jokes about the handwriting of doctors. While many doctors may have hard-to-read signatures, those signatures are often identical or at least very similar. In this case, the defense investigation located dozens of signatures from the dentist from the official records where the dentist lived and where his office was located. This investigation established that the dentist had a variety of signatures which were very dissimilar to each other. In fact, the defense located signatures which were virtually identical to the signature questioned by law enforcement. None of the signatures in RKG’s treatment file, or on the unquestioned prescriptions, resembled this particular signature. The prosecution was unable to provide any explanation how RKG could have forged a prescription which so precisely matched a signature which was unavailable to him by ordinary means.

Many offices utilize numbered prescription tablets. These tablets are manufactured to minimize the opportunity for fraud. The dentist’s office, however, used regular copy paper to print prescriptions. A “real” prescription could not be distinguished with the naked eye from a “copy”, because both were printed on copy paper.

Attorney Garland retained the services of F. Harley Norwitch, a document examiner based out of Palm Beach County. Mr. Norwitch informed the defense that he would need to examine the original questioned documents at his laboratory. The State was initially unwilling to cooperate in this examination process and was equally unwilling to have the questioned documents examined by any law enforcement-related examiner.

The defense had to petition the court for an order compelling the State to transmit the necessary documents to Mr. Norwitch’s lab for examination. After conducting the examination, Mr. Norwitch could not determine whether or not the questioned signature of the dentist were forged or genuine. However, he was able to determine that the questioned document was not the product of a photocopy, and that the questioned document was probably printed on the same printer and with the same software as a valid prescription.

Mr. Norwitch’s evaluation established that the questioned document was an original and printed out, in all likelihood, on the dentist’s Dentrix System printer. The State had no explanation how RKG would have had access to the computer system. Thus, the core component of the State’s theory of prosecution was rebutted by the forensic document examiner.

In light of these circumstances, the State elected to file a nolle prosequi of all three felony charges on January 3, 2007.

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