A physician whose prescription pad was used to forge prescriptions they did not write is a victim of the forgery, not its author. The legal question of whether that physician faces liability for the forged prescriptions depends on what the physician knew, what procedures they had in place, and how they responded when the forgery was discovered.
The general rule is that a physician is not criminally liable for a prescription they did not write, did not authorize, and did not know was being written in their name. The forger bears the criminal responsibility. The physician’s exposure depends on facts that cluster around the security of their prescription materials, their awareness of the forgery, and their response to it.
Criminal Liability for the Forged Prescription
Criminal liability for a forged controlled substance prescription requires proof that the defendant knowingly issued the prescription for a purpose other than a legitimate medical one. A physician who did not write the prescription and did not authorize it cannot have issued it with the required criminal intent. The prescription forgery statute at 21 U.S.C. 843 specifically addresses the forging of prescriptions, and its prohibitions apply to the person who commits the forgery, not the physician in whose name it is forged.
There is an exception that applies to physicians whose negligence or willful blindness to forgery essentially facilitates the criminal conduct. A physician who is aware that their prescription pads are being forged, who has been notified of forged prescriptions by pharmacies, and who takes no steps to report the forgery or secure their prescription materials may face scrutiny about whether their inaction constitutes something more than mere victimhood.
Civil Liability Considerations
Civil liability for a forged prescription that caused harm, such as an overdose death, is more complex. Tort claims against physicians in whose name prescriptions were forged have been brought in several jurisdictions, typically on negligence theories alleging that the physician failed to implement reasonable security measures to prevent unauthorized use of their prescription credentials.
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(212) 300-5196The negligence theory requires proof that the physician had a duty to take reasonable steps to secure their prescription materials, that they breached that duty, and that the breach was the proximate cause of the harm alleged. Where a physician left prescription pads in unsecured areas, failed to account for missing prescription blanks, or failed to report known forgery to the DEA and pharmacies, the negligence theory has more traction.
Regulatory Consequences
The DEA and state medical boards may examine the security practices of a physician whose prescription materials were forged, particularly where the forgery was extensive or prolonged. 21 C.F.R. 1301.75 requires DEA registrants to provide effective controls and procedures to guard against theft and diversion. A physician whose prescription materials were systematically forged over an extended period, with no security procedures in place to detect or prevent it, may face DEA and state board scrutiny about the adequacy of their security practices.
The physician who discovers that their prescriptions have been forged faces two simultaneous obligations: reporting the forgery to the DEA and pharmacies, and reviewing the circumstances that permitted the forgery to occur. Both obligations exist regardless of whether the physician bears any legal responsibility for the forged prescriptions.
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Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
Immediate Steps When Forgery Is Discovered
When a physician discovers that their prescriptions have been forged, the appropriate immediate steps include: reporting the forgery to the DEA field division responsible for their jurisdiction; notifying pharmacies in the area that specific prescription information has been compromised; contacting local law enforcement to file a police report; and reviewing the practice’s prescription security procedures to identify how the forgery occurred and what can be done to prevent its recurrence.
You learn that federal investigators want to interview you about a business transaction you were involved in.
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Counsel should be retained to assist with these notifications and to ensure that the reporting is complete and accurate. The physician’s own account of the forgery discovery, and the security procedures that were or were not in place, may become relevant in a subsequent investigation and should be documented contemporaneously with the discovery.
