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The verdict is in but questions linger in VA drug trial of Dr. Barbara Temeck

Could expert testimony undo conviction?
Posted: 8:53 AM, Jan 10, 2018
Updated: 2018-01-10 15:07:15Z

CINCINNATI -- The trial is over. The case is not.

Dr. Barbara Temeck was convicted Tuesday of illegally prescribing a generic form of Valium for the wife of her former boss in November 2013. But Judge Michael Barrett has yet to rule on a defense motion to dismiss all charges against the Cincinnati VA’s former chief of staff, based on a lack of expert testimony that Dr. Temeck’s prescriptions were beyond the scope of legitimate medical care.

“You need expert testimony to establish a conviction in this case. End of story on that,” Barrett told prosecutors before a jury of five men and seven women returned their guilty verdict. He reserved final judgment on the matter to consider whether the testimony of a prosecution witness, Dr. Muhammad Munir, “rose to the proper legal standard” to qualify him as an expert witness.

When the guilty verdict was returned, Barrett asked for additional written arguments on the matter in the next few weeks.

“There is reason for hope,” said Ben Dusing, defense attorney for Dr. Temeck. “It’s not every day that the court makes the comments that it made during the trial. So, there were concerns. We’ll see how it plays out.”

U.S. Attorney Benjamin Glassman said expert testimony is “permissible but not required” in prescription cases like Dr. Temeck’s.

“Under the circumstances of this case, I think the jury was correct to find proof beyond a reasonable doubt that Dr. Temeck had acted outside the scope of her license and not within the bonds of legitimate medical practice,” Glassman said. “I don’t think you need an expert to tell you that.”

The conviction followed nearly two years of turmoil for the 67-year-old cardio-thoracic surgeon who spent more than 30 years in the U.S. Department of Veterans Affairs, serving as an administrator in Chicago, St. Louis, Columbia, South Carolina, and Cincinnati. She testified Monday that she became friends in 2001 with Jack and Kathleen Hetrick. He rose through management ranks to become the VA’s Network Director in charge of 11 hospitals in three states. She was a VA nurse who retired on disability in 1999 after being injured on the job.

Suffering from migraines and chronic pain, Kathleen Hetrick evoked sympathy in Dr. Temeck, who testified their relationship was “like sisters” and recounted numerous incidents when she coordinated medical care for her friend.

“I definitely wanted to help her out,” she said. “I could see that she was suffering.”

The relationship became a matter of public controversy after Dr. Temeck arrived in Cincinnati and started making changes at the regional health system serving 43,000 local veterans. She claims she was fighting against waste and abuse by doctors from the University of Cincinnati. But a group of 34 hospital whistleblowers blamed her and Jack Hetrick for morale problems and cost-cutting moves that impacted the hospital’s quality of care.

The Scripps Washington Bureau and WCPO investigated the concerns of those 34 whistleblowers . In the process, we obtained evidence of three prescriptions written by Dr. Temeck for Kathleen Hetrick. Those prescriptions led to Dr. Temeck’s indictment in May 2017.

During the five-day trial, the jury heard testimony that Dr. Temeck had a fee-exempt DEA registration that limited her authority to prescribe controlled substances to her VA practice only. Dr. Temeck testified that she wasn’t aware of that restriction, but conceded under oath that it is a physician’s responsibility to know the limits of their licensing.

Dr. Temeck denied involvement in two of the three prescriptions that were called into local pharmacies when she was working in other cities. The jury found her not guilty on those two counts.

But Dr. Temeck admitted writing a third prescription in 2017, saying her friend was having an acute panic attack that required emergency intervention. Dr. Muhammad Munir testified that he had concerns about that prescription because he was also treating Hetrick at the time and he noticed other doctors were prescribing narcotics for her.

“If the prescriptions have been prescribed by more than one doctor, the patients can have an adverse outcome,” he said. “In that case, basically they can overdose.”

The jury convicted Dr. Temeck on that charge, which could result in up to five years of jail time but is more likely to lead to probation if the conviction stands.

Here’s the issue: Prosecutors presented Dr. Munir as both a fact and expert witness. Barrett instructed the jury to distinguish between his fact and opinion testimony. But to qualify as a medical expert, Barrett told prosecutors, the witness must express opinions to a reasonable degree of medical certainty.

“I never heard those words in this courtroom,” he said.

Whether that defect is large enough to toss out a jury verdict remains an open question. Here’s another: Was the government’s prosecution of Dr. Temeck politically motivated?

Barrett firmly rejected that notion with a ruling in November. But Dusing presented evidence that Congress and the VA communicated with those in charge of the investigation. That evidence is likely to surface again as Dr. Temeck contests her November firing by the agency.

Glassman said the prosecution was “normal in every sense of the word” and not politically motivated.

 “This was the chief of staff at a VA who was writing prescriptions that were outside the scope of her license,” he said. “That’s not allowed by law. It’s a crime. When there is a crime, it’s our job to bring that matter to the grand jury.”