Nwoga v. State

SUSAN IWUNZE NWOGA v. STATE OF MARYLAND

No. 0741

No. 2652

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

February 17, 2021

Circuit Court for Baltimore City

Case No. 118114013

UNREPORTED

Kehoe, Beachley, Shaw Geter, JJ.

Opinion by Kehoe, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. See Md. Rule 1-104.

After a bench trial in the Circuit Court for Baltimore City, the Honorable Marcus Z. Shar presiding, Susan Iwunze Nwoga was found guilty of one count of Medicaid fraud (Crim. Law § 8-509), one count of theft of over $100,000 (Crim. Law § 7-104(g)(iii)) and 287 counts of distribution of controlled dangerous substances (Crim. Law § 5-602(1)). The court sentenced her to twenty years' incarceration with all but five years suspended to be followed by five years of supervised probation. The State also sought restitution. After a separate hearing, the court ordered her to pay a total of $507,433.46 in restitution.

Nwoga presents five issues on appeal,¹ which we have reworded and consolidated into three:

A. Was there sufficient evidence to support Nwoga's convictions?

B. Did the trial court abuse its discretion by failing (i) to postpone the restitution hearing to enable Nwoga to hire replacement counsel, or (ii) to order the Office of the Public Defender to represent her at the restitution hearing?

C. Was the restitution award supported by legally sufficient evidence?²

We will affirm the convictions and the restitution order.

Background

The State's theory of the case was that Nwoga, a licensed pharmacist, participated in a drug distribution scheme by filling hundreds of false prescriptions for medications containing opioids and other controlled dangerous substances.³ She fraudulently billed Maryland's Medicaid program for these medications and received hundreds of thousands of dollars in reimbursements. Although the evidence produced at trial in this case was voluminous, the underlying facts were largely uncontested.

Beginning in 2012 and ending in 2016, Nwoga, operated the Poplar Grove Pharmacy in Baltimore. She was Poplar Grove's sole pharmacist and filled thousands of prescriptions for medications containing controlled dangerous substances. Under the relevant federal and state regulations, pharmacists must ensure that controlled dangerous substance prescriptions are written for legitimate medical purposes by physicians or other healthprofessionals acting within the normal scope of their professional practices.⁴ A pharmacist is also required to exercise her professional judgment to assess the validity of each prescription for CDS medication before filling it.

Poplar Grove was a Medicaid provider. As part of the agreement to become a Medicaid provider, Poplar Grove agreed to comply with all federal and state laws and regulations, administrative policies and guidelines issued by the Food and Drug Administration and the Maryland Department of Health, including filing accurate and truthful claims submitted to the Department for reimbursement. All pharmacies are subject to periodic inspections by agents of the Department of Health's Division of Drug Control (the "DDC").⁵

In 2012, DDC inspector Peter Smith reviewed Poplar Grove's records for CDS prescriptions and discovered "seven or eight" apparently fraudulent prescriptions as well as discrepancies in Nwoga's record-keeping. He discussed these problems with her.

In May 2013, Smith and James Polek, the Deputy Director of the DDC, conducted another inspection. They uncovered a large number of apparently fraudulent CDS prescriptions. The prescriptions contained errors in the security features and/or theaccompanying physician's directions as to dosage were unusual. For example, the directions on some prescriptions directed the ultimate user to take the medicine every 46 or 68 hours, instead of four to six or six to eight hours and the same errors appeared on prescriptions from different physicians. In other prescriptions, the first and last names of the prescribing physician were transposed.

Polek and Smith contacted the prescribing physicians to verify the legitimacy of the prescriptions. This led the inspectors to conclude that 260 prescriptions appeared to be fraudulent, which was an extremely high number for a pharmacy. Polek discussed his findings with Nwoga and explained to her why these prescriptions were suspicious and probably fraudulent. He provided her with a list of "red flags," that is, indicators that a prescription was potentially fraudulent.⁶ He warned her that the presence of one or more red flags should cause her to exercise her due diligence to make sure that the prescription was legitimate.

In their 2014 inspection of Nwoga's records, Smith and Polek uncovered 62 fraudulent prescriptions. Once again, Polek provided Nwoga with a report explaining the "red flags" uncovered in the inspection.

The last inspection was not a routine one. The Department of Health received a complaint that a Darnella Carter and a staff member of a methadone clinic were obtaining drugs from Nwoga by means of fraudulent prescriptions. Polek reviewed Poplar Grove's records and found that the pharmacy had filled prescriptions for Carter. The DDC then subpoenaed records for all of Poplar Grove's prescriptions for medications containing controlled dangerous substances that were filled between January 1, 2012, and September 24, 2015, approximately 6,000 prescriptions in total. Polek did not complete his analysis of these records—he stopped after finding 748 fraudulent prescriptions. As a result of the information uncovered by the investigation, Nwoga was charged with a total of 320 counts of theft, fraud and drug distribution.⁷

At the trial, the State introduced physical and testimonial evidence. It first produced the HIPAA logs that Nwoga maintained at her pharmacy. These logs contained information about the prescriptions filled by Nwoga and the signatures of the persons who had picked them up. The State matched this information with claims that Poplar Grove submitted to Medicaid.

Polek, who was qualified as an expert witness, testified that the 2015 inspection showed an "overwhelming presence of fraudulent activity." He also noted that Nwoga had shown him seven prescriptions that she did not fill because she thought they were fraudulent.Polek told the court that if Nwoga had been "able to spot those," then she should have been able to identify the other fraudulent prescriptions.

Additionally, the State called as witnesses five physicians and one physician's assistant who purportedly issued the prescriptions that were referenced in the indictment. They testified that they had not written the prescriptions in question, that none of those who signed the HIPAA logs were in fact their patients, that Nwoga had never reached out to them to verify the prescriptions, and that many of the prescriptions themselves had glaring issues. These problems included prescriptions that lacked the patient's date of birth or address, prescriptions for unusually high dosages or amounts of medication, and prescriptions for multiple opiates for the same patient on the same day.

In addition to the testimony of Polek, Smith, and the health care providers, the State also called Todd Sheffer, an investigator and auditor for the Medicaid Fraud Control Unit of the Office of the Attorney General. Sheffer concluded that the State had paid Nwoga $365,131.68 as reimbursement for the fraudulent prescriptions purportedly issued by the health care providers who testified at trial. The State also introduced voluminous documentary exhibits to support the testimony.

Nwoga testified in her own defense. She did not deny that she had filled the prescriptions that the State alleged were fraudulent. She asserted that she had done so because she believed that they were legitimate. According to Nwoga, before she opened Poplar Grove, she had worked in suburban pharmacies where fraudulent prescriptions were not an issue. She was naive, credulous, and, as the only pharmacist at Poplar Grove, was,in her lawyer's words, "easy pickings" for sophisticated groups of criminals looking to get these drugs.

Nwoga confirmed that nearly 98% of her patients were Medicaid recipients. And she admitted that without the payments she received from Medicaid, she would have been forced to close Poplar Grove within a matter of weeks. Nwoga testified that she often took a financial loss by filling prescriptions for CDS covered by Medicaid, so she had no reason to defraud or steal from the program.

To support this argument, her counsel introduced Nwoga's accounting logs for Poplar Grove into evidence. Those logs were kept by a third-party vendor, Best Rx. And because Nwoga was the sole pharmacist at Poplar Grove, only she entered information into the logs.

According to those logs, Nwoga filled, distributed, submitted a claim to, and received a payment from Medicaid for each of the fraudulent prescriptions at issue. The logs noted the type and quantity of medication Nwoga filled for each prescription, how much Medicaid paid Nwoga for filling each prescription, and had Nwoga's initials next to each of the prescriptions showing that she had filled them.

Based on this evidence, the trial court convicted Nwoga of one count of Medicaid fraud, one count of theft of over $100,000 and 287 counts of distribution of CDS.

After she was sentenced, Nwoga discharged both of her trial attorneys and filed a pro se motion to postpone the restitution hearing so she could find new counsel. The trial court held a hearing on the motion in early October, granted Nwoga's request, and postponed the restitution hearing until January 2020.

Nwoga arrived at the January hearing unrepresented and asked the court to again postpone the hearing. The trial court refused to postpone the hearing a...