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Practicing internist and psychiatrist Muhamad Aly Rifai discusses his article “Criminalizing care: How the system turned on physicians.” He argues that physicians, historically pillars of trust, are increasingly being targeted and criminalized under regulations like the Controlled Substances Act and health care fraud statutes. Muhamad details several cases, including those of Drs. Sachy, Kousa, and Anand, as well as his own acquittal on federal fraud charges, to illustrate how medical judgment and complex patient care are being conflated with criminal activity. He critiques the tactics used, such as aggressive federal investigations, flawed audits, data manipulation in PDMPs, inflammatory press releases (“dirty doctors”), and a perceived erosion of the presumption of innocence, noting that only 0.4 percent of federal defendants are found not guilty. Muhamad highlights the devastating personal and professional consequences for physicians and the disruption to patient care, calling for urgent reforms including clearer guidelines, prosecutorial accountability, DEA process reform, and equal application of due process to end the war on healers.
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Transcript
Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast. Today we welcome back Muhamad Aly Rifai. He’s an internal medicine physician and psychiatrist. Today’s KevinMD article is “Criminalizing care: How the system turned on physicians.” Muhamad, welcome back to the show.
Muhamad Aly Rifai: Thank you for having me to talk about how we can help physicians stay out of trouble and how we can, with these political and significant changes that are happening in our country, keep physicians protected and ensure that care is not criminalized.
Kevin Pho: All right. What’s this article about?
Muhamad Aly Rifai: So in the article, I introduced the fact that physicians in the U.S. have always been part of the pillars of ethics and trust. The Declaration of Independence was actually signed by four physicians. One of them is the Father of American Psychiatry, Dr. Benjamin Rush. There are other physicians: Josiah Bartlett, Lyman Hall, and Matthew Thornton. So, even in the beginning of this republic, physicians have always been pillars of trust and have been involved in the building of American democracy.
It’s kind of, it’s heart-wrenching that we see that some physicians are ending up on the wrong side of the law and seeing that the legal system is weaponized in terms of them providing appropriate care for their patients and that care being criminalized and weaponized. How sometimes lab coats are being exchanged for prison uniforms and how prosecutors can pursue physicians with a real significant zeal without regard to due process or constitutional rights, or sometimes without even regard to the facts: the actual facts of the case and the medical circumstances and patient care.
Kevin Pho: So you talked about some examples of those types of cases in your article, so why don’t you highlight a few?
Muhamad Aly Rifai: Sure. So one of the cases is actually another fellow psychiatrist. He’s a neuropsychiatrist, a prominent research-oriented neuropsychiatrist, who actually saw very difficult cases, complex cases that required complex treatments including treatments with pain medications for complex psychiatric and neurological conditions, and two of his patients had unfortunate circumstances and died. He actually ended up being indicted for controlled substances charges and was charged with the death of two patients. He was incarcerated for an extended period of time and actually decided that he wanted to go to trial because the potential charges involved him being in prison for life.
He ended up going to trial. During his trial, the prosecution really turned out that they didn’t have a strong case. The expert witness—the forensic pathologist, the coroner who was involved in the case—actually misstated facts and indicated that one of his patients had medications next to them next to their bed, and his lawyers objected because that wasn’t true. The expert witness, the coroner, had to admit on the stand that they had mixed up the facts of the case and they couldn’t remember exactly what was going on.
The charges ended up being dismissed after being prosecuted for three and a half years. He ended up going home that day while he was facing life in prison for being a compassionate doctor who provided compassionate care to his patients who had end-stage conditions and ended up dying. So, it was quite an unfortunate situation that Dr. Stasi faced, but he’s back with his family, with God’s blessings.
Kevin Pho: Now, surely there are some legitimate cases where doctors are doing criminal activity. So how often is it that they’re prosecuted for nuanced issues or falsely prosecuted? How often does that really happen?
Muhamad Aly Rifai: It’s quite frequent. The statistics are that there are about between 300 to 500 physicians that are prosecuted around the U.S. A fellow physician who was on the wrong end of the law said a criminal prosecution, next to execution, is probably one of the most painful things that could happen to any person. So it’s really something that’s very, very painful. And 300 to 500 physicians are prosecuted federally throughout the U.S. every year.
The statistics are very sobering, and the majority of them actually end up pleading and not fighting their charges. Of those who go to trial, only about maybe 30 or 40 percent of them are exonerated, but the majority of them will be found guilty at trial because prosecutors just have the cards stacked against physicians. They don’t have appropriate representation; they may have public defenders. They’re not able to mount a significant defense. In my case, I was able, I had resources, so I was able to mount a significant defense and prove that the allegations were not true. They were basically utilizing outdated CPT coding guidelines to incriminate me while I was in the right and was using the appropriate CPT coding guidelines. They were using outdated guidelines from five years earlier. That ended up being discovered during trial on the stand.
The government’s own witness coder actually disavowed the government’s case on the stand. She said, ‘I’m not supporting the government’s case. I’m not supporting this prosecution. I’m out of here. I’m not supporting anything.’ So it was quite a scene that the government’s own witness that they brought in just kind of disavowed the case on the stand.
But there are cases where physicians are guilty. Physicians know that when they’re guilty, they just plea. But there are physicians that ended up pleading just by fear of the outcomes and by fear of additional punishment. So if somebody doesn’t plea, they get additional time, they get longer sentences because they wasted the government’s time and made the government go to trial. So the system is stacked against any federal criminal defendant.
Kevin Pho: Now, are there common themes that connect these false prosecutions? Any specific types of doctors that potentially get falsely prosecuted?
Muhamad Aly Rifai: So we are seeing that there are a lot of physicians who are minority physicians who fall into prosecutions. There’s a significant amount of confirmation bias. Basically, regarding a minority physician, the assumption is that their acts are criminal. They presume that the minority physician will have less resources to fight.
A story of a fellow Syrian physician in Kentucky, Dr. Kassis, who was prosecuted—I mean, he’s an exemplary physician, 30 years in private practice in rural Kentucky. He was accused that he was running a pill mill, and they also added charges that he committed health care fraud by doing serial EKGs on his patient who had some QTc prolongation, and he wanted to ensure that the patient was safe. Each EKG he charged the government $6 for, and they charged him with health care fraud for 10 EKGs—$60. That was his charge because he was worried about the person having a QTc prolongation related to their medications.
He was also accused that he had a pill mill, and his community actually came to his rescue. His own community pharmacist testified on his behalf; his colleagues from his own hospital testified regarding his exemplary record and his pristine management of patients, and he was found not guilty on all charges.
So sometimes individuals who are Middle Eastern—we have a colleague who is currently undergoing prosecution in Philadelphia, Dr. Neil Anand, of Indian ancestry; individuals who are Hispanic; individuals who are Asian—Chinese, Koreans, Japanese—those, sometimes there’s a significant confirmation bias. The statistics do show that these individuals are prosecuted more often than their other colleagues. So it’s quite unfortunate, and sometimes it takes resilience to stand up to a federal prosecution and fight back. I’m doing that right now with my prosecution, suing the government back for an illegal and unjust prosecution.
Kevin Pho: Now, let’s say if you are a physician that tends to be targeted, like you said, perhaps a minority physician, a physician that prescribes, say, a lot of controlled substances, is there anything that they could do to protect themselves against potentially false prosecution?
Muhamad Aly Rifai: Sure. So preparation, preparation, preparation, I think, is very, very important. So there are maybe four or five steps that physicians need to really adhere to. The first one is perception. I think perception is very important. When somebody comes into their office, it needs to be a pristine office, a nice office. You know, in the nineties, Rudy Giuliani cleared up New York City. He cleaned up the broken windows and things like that—perception. So if there’s a perception that this is a pristine, nice office, a clean office, the staff is good, and that the room is clean—that goes a long way at kind of dispelling the fact that this is a pill mill.
Also, preparation: having compliance, having your books, your records, your charts in order, and having an active and robust compliance program, getting help with compliance from outside sources. So getting your charts audited before the government comes and audits them for you and finds issues with your charts.
Also, if there are any issues, if there’s a complaint, if there are issues identified: investigate, investigate, investigate, and document the investigation and get somebody else to help you with the investigation. You would say, ‘Listen, I found that I prescribed too much of this medication, and maybe I need to find out how do I taper these medications off these patients?’ If you bring outside help, the government will look at that very, very positively that this person identified that maybe they were going in the wrong direction, not for any fault of their own, and they corrected. That’s a very positive thing that you can do.
Also, once somebody is identified that they’re under investigation, they need to seek help immediately, and they need to seek legal help. They also need to make sure that they do not disclose anything. Never talk to the police, never talk to investigators; make sure that your lawyer does the talking for you.
So I think there are many things that our colleagues could do to ensure that they remain in a safe situation: compliance, identifying what they’re doing, doing self-audits, as well as audits guided by auditing companies to make sure that they’re doing OK and they’re staying on the good side of the law. And if you do that, even if there’s prosecution, if there’s confirmation bias that the person is going to be prosecuted, they’ll have a positive outcome and they’ll be able to navigate through this.
Kevin Pho: We’re talking to Muhamad Aly Rifai. He’s an internal medicine physician and psychiatrist. Today’s KevinMD article is “Criminalizing care: How the system turned on physicians.” Muhamad, let’s end with some take-home messages that you want to leave with the KevinMD audience?
Muhamad Aly Rifai: Yes. I think that this is a call for improving the ability of physicians to understand the boundaries and limits, clear regulations ensuring that there are boundaries or limits for the Controlled Substances Act, and understanding that physicians have due process rights that need to be protected. Our goal is to serve our patients and serve our communities, and that goal should be lauded and respected.
Kevin Pho: Muhamad, thank you so much for sharing your perspective and insight. Thanks again for coming back on the show.
Muhamad Aly Rifai: Thank you.