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Sex-for-Drugs Case Tries Top Court

The United States Supreme Court will announce Oct. 2 whether it plans to hear the appeal of a Plum doctor, Bernard Rottschaefer, convicted two years ago of distributing narcotics to his patients in exchange for sex.


The court is Rottschaefer's last chance to overturn his March 2004 conviction, in which a federal court found him guilty of 153 counts of illegally issuing prescription painkillers to five women. Rottschaefer was sentenced to more than six years in prison, though he has been free pending appeal.


Rottschaefer's case has garnered national attention because after the trial, evidence surfaced that a key witness against him lied so she could make a deal on her own criminal drug case. All but one of the five patients testifying against Rottschaefer got breaks on their own drug cases. (See City Paper Main Feature, "Bitter Pills," May 25.)


Both the trial judge and the Third Circuit Court of Appeals have denied Rottschaefer's request for a new trial. (The appeals court did, however, refer the doctor's case back for re-sentencing: Rottschaefer was originally sentenced under mandatory federal sentencing guidelines, which the Supreme Court later deemed unconstitutional.)


According to the Supreme Court clerk's office, the justices are scheduled to discuss whether to hear Rottschaefer's appeal on Sept. 25.


Rottschaefer's attorney, Eli Stutsman, recently filed his request to have the case heard; the U.S. Attorney's office waived its right to file a brief in response, according to a court spokesperson. U.S. Attorney Mary Beth Buchanan was unavailable to explain her decision by press time.


Stutsman's brief repeats arguments he's been making in appeals since Rottschaefer's conviction. Because the women allegedly fabricated injuries to get pain medication, Stutsman contends, Rottschaefer is guilty, at worst, of malpractice ... and that isn't a criminal offense. In his brief, Stutsman writes: "Although the government ostensibly brought a sex for drugs criminal prosecution against Dr. Rottschaefer, the government in fact prosecuted a malpractice-type theory of criminal liability" ... something that "Congress did not criminalize."


The alleged perjury of Jennifer Riggle, one of Rottschaefer's former patients, warrants a new trial by itself, Stutsman claims. After Rottschaefer's conviction, Riggle's estranged boyfriend gave defense attorneys hundreds of pages of letters Riggle wrote before the trial. In those letters, Riggle outlines plans to lie about the doctor in exchange for a lighter sentence for herself.

In Rottschaefer's case and several others nationwide, doctors have received lengthy prison sentences for prescribing painkillers to patients claiming to be in severe chronic pain. Convictions in such cases, Stutsman writes, deserve review by the Supreme Court.


"Dr. Rottschaefer and other physicians face prosecutions ... that may rest on substandard medical practices rather than drug dealing," Stutsman argues in his brief. "This case presents the court with an opportunity to announce that a criminal conviction cannot be based on substandard medical practices."

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