Oxycontin Case

3 DOCTORS FIGHT JAIL TIME AMID APPEALS

FLORENCE - Three former doctors from the defunct Comprehensive Care and
Pain Management Center in Myrtle Beach should remain free on bond because
they may have been convicted and sentenced improperly, their lawyers said
Wednesday.

"That's not a technicality," said attorney Eli D. Stutsman, who has
appealed the convictions based on the legal standard used. "That is huge."

The doctors' lawyers also plan to appeal their sentences based on a recent
U.S. Supreme Court decision regarding information juries should consider
before sentencing, Stutsman said. Lawyers want the doctors free while the
appeals are pending.

Federal Magistrate Judge Thomas E. Rogers was expected to decide Wednesday
whether doctors Deborah Bordeaux, Ricardo Alerre and Michael Jackson should
begin serving the prison sentences they received in February.

Instead, Rogers allowed defense lawyers and prosecutors time to research
the Supreme Court ruling, which could lead to reduced sentences for the
doctors.

The three have orders to report to prison within a month, but it is not
likely they will report before the next hearing before Rogers is scheduled,
said Assistant U.S. Attorney Bill Day.

Jackson, Alerre and Bor-deaux are among seven doctors sentenced in what
prosecutors said was their largest case involving doctors charged with
overprescribing narcotics, including the potent painkiller OxyContin.

On Wednesday, Stutsman said appeals have been filed asserting that
prosecutors convicted the doctors with a case based about 70 percent on
whether the drugs prescribed at the pain clinic were medically necessary.

He said prosecutors stressed throughout the trial that the drugs
distributed were not medically necessary, instead of saying the drugs were
prescribed outside normal medical practice.

Stutsman told Rogers that, by arguing medical necessity, prosecutors used a
civil standard in a criminal case, which was improper.

The civil standard could be used to prove negligence but not a criminal
violation, he said.

Day said prosecutors used the correct standard by proving the doctors acted
outside their the course of their professional practice.

"You would expect a doctor to examine a patient before prescribing drugs,"
he said. "And I would think they would ask if they took all the medicine
from the month before before prescribing more."

Stutsman said lawyers also will challenge the doctors' sentences citing a
Supreme Court decision last month - Blakely v. Washington.

A judge cannot set a sentence using information a jury did not consider,
according to the Blakely ruling, Stutsman said.

Bordeaux, Jackson and Alerre's sentences were improperly tied to the total
amount of narcotics distributed at the clinic and not the quantity each
prescribed.

Bordeaux, for example, was specifically charged with writing four
prescriptions to two patients but was assigned a share of responsibility
for the entire amount of drugs prescribed at the clinic.

Day said although the indictment didn't link doctors to specific quantities
of drugs, jurors heard during trial about specific prescriptions each was
accused of writing.

An appellate court must decide both issues. Stutsman said it could take as
long as 15 months for the appeal to be heard.

Jackson, Alerre and Bordeaux received sentences of 24 years and four
months, 19 years and seven months, and eight years and one month, respectively.

The clinic's owner, Michael Woodward, pleaded guilty in exchange for
lighter sentences.