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Two months after verdict, Dr. Barbara Temeck's drug conviction still in doubt

Cincinnati VA physician seeks new hearing
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Posted at 8:44 AM, Mar 12, 2018
and last updated 2018-03-12 09:07:04-04

CINCINNATI -- Two months after a federal jury convicted Dr. Barbara Temeck of illegally prescribing a generic form of Valium for the wife of her former boss, the Cincinnati VA’s former chief of staff wants another day in court to convince U.S. District Judge Michael Barrett to reject the jury’s decision.

“The verdict in this case cannot stand,” wrote Defense Attorney Ben Dusing in a March 8 court filing. “There were two alternative grounds upon which Dr. Temeck could have been found guilty … The government's case failed on both grounds.”

In a series of motions in the last two months, Dusing has argued jurors were confused and misled by prosecutors, that they were given the wrong instructions on the legal standard for the felony charge Temeck faced and that there simply wasn’t enough evidence to support a conviction.

Prosecutors have swatted away each of the arguments in motions that ask Judge Barrett to uphold the jury verdict.

“The jury correctly and carefully considered the evidence against Dr. Temeck,” wrote Assistant U.S. Attorney Kyle Healey in a Feb. 22 motion. “Ample evidence exists that Dr. Temeck knew she was exceeding her registration (with the U.S. Drug Enforcement Agency) or that she prescribed the controlled substances without a legitimate medical purpose.”

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.

Temeck testified that she became friends with Jack and Kathleen Hetrick in 2001. He rose through management ranks to become the VA’s Cincinnati-based network director in charge of 11 hospitals in three states. Mrs. Hetrick was a VA nurse who retired on disability in 1999 after being injured on the job.

Two central issues dominated the trial: Whether Temeck knowingly violated the requirements of her DEA registration, which allowed her to write prescriptions only in the context of her official duties in the VA, and whether a “legitimate medical purpose” was served by three prescriptions that Temeck allegedly wrote for Mrs. Hetrick.

The prescriptions came to light when the Scripps Washington Bureau and WCPO investigated the concerns of VA whistleblowers about cost-cutting and management problems in the hospital system that cares for 43,000 Tri-State veterans.

RELATED: Read the full investigation here

The jury rejected two felony charges after Temeck denied calling in prescriptions to pharmacies. She admitted to writing a third prescription, but said it was a medical emergency.

During the trial, Judge 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 “harmful and misleading” 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 Judge 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.”

Prosecutors countered that jury instructions were clear and there was plenty of evidence that Temeck knew her DEA registration didn’t allow the kind of prescription she wrote for Mrs. Hetrick.

“The defendant has taken one illustration by the prosecutor in rebuttal out of context and argued the government wholly misstated the law. The record shows this argument lacks merit,” Healey wrote.