Summary
The Seventh Circuit reviewed Jong Hi Bek's convictions for conspiracy to distribute controlled substances, unlawful distribution of controlled substances, and health care fraud. The court reversed the conviction on count nine concerning patient Barbara W. because the evidence was insufficient, but affirmed the remaining convictions, holding that the evidence was sufficient and that medical records were not protected by physician-patient privilege or HIPAA. The court also rejected Bek's claim that the government's prosecution of his former attorney was vindictive.
Topics
Practice areas
Questions Presented
- Whether sufficient evidence supported Bek's convictions for unlawful distribution of controlled substances, conspiracy, and health care fraud.
- Whether the evidence established that Bek prescribed controlled substances outside the course of professional practice rather than merely committing civil malpractice.
- Whether the evidence was sufficient to sustain the convictions concerning deceased patients Don C., Roger M., and Barbara W.
- Whether the evidence compelled acceptance of Bek's entrapment defense.
- Whether the district court abused its discretion by admitting patient medical records allegedly protected by physician-patient privilege or HIPAA.
- Whether the government's prosecution of Bek's former attorney was vindictive and violated Bek's right to counsel or choice of counsel.
Holdings
- To convict a practitioner registered to distribute controlled substances under 21 U.S.C. § 841(a)(1), the government must prove that the practitioner prescribed controlled substances outside the course of professional practice or without a legitimate medical purpose. The evidence was sufficient to establish that Bek maintained a general practice of prescribing controlled substances outside that standard.
- The evidence was sufficient to sustain Bek's convictions relating to deceased patients Don C. and Roger M.
- The evidence was insufficient to sustain Bek's conviction on count nine concerning Barbara W.
- The evidence was sufficient for a rational jury to reject Bek's entrapment defense.
- The evidence was sufficient to sustain Bek's conspiracy conviction under 21 U.S.C. § 846.
- The evidence was sufficient to sustain Bek's conviction for committing or aiding and abetting health care fraud.
- Federal common law does not recognize a physician-patient evidentiary privilege, and the court declined to create one in this case.
- HIPAA did not create a physician-patient or medical-records privilege and did not require patient authorization for the disclosures at issue because the records were obtained by warrant and disclosed subject to a qualifying protective order.
- Bek failed to establish that the government's prosecution of his former attorney was vindictive or that it interfered with his defense or choice of counsel.
Key quotations
“We do not weigh the evidence or assess the credibility of witnesses. Instead, we view the evidence in a light most favorable to the government and reverse only when there is no evidence, no matter how it is weighed, from which a rational jury could find guilt beyond a reasonable doubt.” (798)
“Federal common law has not historically recognized a privilege between patients and physicians.” (802)
“For the reasons detailed above, we REVERSE Bek's conviction on count nine relating to Barbara W., but AFFIRM his conviction on all other counts.” (803)
Factual background
Bek operated a pain-management clinic in Gary, Indiana, where undercover officers and former patients described brief, superficial examinations and the routine prescription of requested controlled substances for cash. Evidence showed that Bek and his assistant Richard Faloona screened patients, facilitated requests for drugs, and used a standardized menu of medications without meaningful diagnostic testing, medical histories, or follow-up care. Government experts testified that Bek prescribed controlled substances without a legitimate medical purpose and outside the course of professional practice. The government also obtained and introduced patient medical records pursuant to a search warrant and a protective order.
Procedural history
Bek was charged in a twenty-seven-count federal indictment and tried before a jury. One count was dismissed, and the jury convicted him on twenty-six counts; the district court imposed concurrent forty-one-month prison sentences and two years of supervised release. The Seventh Circuit reversed the conviction on count nine, relating to patient Barbara W., and affirmed the convictions on all remaining counts.
Remand instructions
The conviction on count nine relating to Barbara W. was reversed; the judgment was affirmed on all other counts. The opinion does not state additional remand instructions.