CINCINNATI - The former chief of staff at Cincinnati’s VA Medical Center is headed back to court for one more attempt to unravel her conviction on a felony drug charge.
A federal jury in January found Dr. Barbara Temeck guilty on one count of illegally prescribing painkillers for the wife of her former boss. U.S. District Judge Michael Barrett has scheduled a June 7 hearing to consider defense motions for an acquittal or new trial.
Defense attorney Ben Dusing has argued in legal briefs that jurors were confused about the legal standard required for conviction because of “harmful and misleading” statements made by prosecutors in closing arguments.
Assistant U.S. Attorney Patrick Healey has countered that the jury understood the law and there was “ample evidence” to sustain a conviction.
Dr. Temeck spent more than 30 years in the VA before a group of whistleblowers in Cincinnati alleged she forced out experienced surgeons and jeopardized patient care with cost-cutting moves.
That led to a 2016 investigative report by WCPO and the Scripps Washington Bureau, which included revelations about three prescriptions written for the wife of former VA Network Director Jack Hetrick.
Then came three felony indictments alleging Dr. Temeck “knowingly, intentionally and unlawfully” prescribed controlled substances – Diazepam and Norco – during an 11-month period ending in November& ;2013.
After a six-day trial, the jury rejected two of the charges relating to call-in prescriptions. Dr. Temeck denied involvement and prosecutors offered no evidence to prove she actually made the calls. She admitted writing a third prescription but said it was a medical emergency.
That’s important because it allows defense attorneys to argue that the prescription did not violate the terms of her DEA registration. It prohibits writing controlled-substance prescriptions for patients outside the VA, except in limited circumstances, including emergencies.
During the trial, Barrett expressed concerns about a lack of medical expert testimony that the prescriptions were outside the scope of legitimate medical practice. But prosecutors argued in post-trial briefs that such evidence wasn’t necessary for a conviction. They also argued that a guilty verdict could be sustained on the DEA registration issue only.
Dusing argued prosecutors made statements in their closing arguments that left jurors confused about whether the government had to prove that Temeck knew she was operating outside the scope of her DEA registration. He's asking Barrett to order Temeck's acquittal or grant a new trial on the only count that led to her conviction.
“Frankly, it is hard to understand how the jury found Dr. Temeck guilty on Count 3 on the basis of the evidence, were they correctly applying the court's instructions,” Dusing wrote in a Jan. 23 motion. “One obvious explanation for the jury's curious verdict is the government's misstatement of the law on this critical issue.”
Barrett could take the case under advisement, so a final decision on the January verdict could still be weeks away.
