United States v. Murphy

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK MURPHY, JENNIFER MURPHY, Defendants-Appellants.

No. 23-10781

United States Court of Appeals, Eleventh Circuit

November 21, 2024

DO NOT PUBLISH

Appeals from the United States District Court for the Northern District of Alabama D.C. Docket No 5:20-cr-00291-LSC-SGC-1.

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge.

This criminal appeal involves two codefendants-Dr. Mark Murphy and his wife Jennifer Murphy-who operated a pain management clinic in Alabama. After a jury convicted the Murphys of drug conspiracy and healthcare fraud among other crimes, the Murphys were each sentenced to twenty years in prison. Both challenge their convictions on appeal, arguing among other things that the evidence underlying their convictions was insufficient, that the court gave an erroneous jury instruction on their drug conspiracy charge, and that the court violated their constitutional right to present a defense when it excluded testimony of Dr. Murphy's good care for some of his patients. Separately, Mrs. Murphy argues that the court abused its discretion by denying her motion for a mistrial after a witness provided testimony the court later instructed the jury to disregard. Dr. Murphy also challenges his sentence, arguing that the district court improperly calculated drug weight and loss amount, and that his sentence was substantively unreasonable. We reject all their arguments and affirm.

I.

A.

We begin with the facts. Dr. Murphy was a licensed physician specializing in pain management. He and Mrs. Murphy, his business partner, operated a pain management clinic called North Alabama Pain Services. NAPS had two locations in Alabama-one in Decatur and the other in Madison. Despite the practice's large patient population, Dr. Murphy was the only doctor on staff. Often, though not always, NAPS employed a nurse practitioner or physician's assistant to work as a physician extender. As one extender testified, she and Dr Murphy would work opposite one an-other-one would go to Madison one day while the other went to Decatur, and vice versa.

NAPS patients suffered from chronic pain issues. To manage their pain, patients sought prescriptions for opioids, including hydrocodone, oxycodone, fentanyl, and morphine. Doctors testified at trial that opioid use can cause addiction, overdose, and death. Accordingly, only medical providers registered with the Drug Enforcement Administration can prescribe drugs like oxycodone or hydrocodone. To mitigate the risks of opioid use, prescribing physicians conduct risk-benefit analyses. For instance, an expert testified that doctors should consider whether the patient has a history of alcohol or drug dependence. Another physician explained that they should conduct a physical examination of the patient, review medical records, and create a treatment plan. And doctors use prescription monitoring programs to ensure patients are not "doctor shopping" and receiving medications elsewhere. After prescribing opioids, doctors often conduct drug tests; if those tests reveal that a patient failed to take the prescribed medication or is taking other drugs-all possible signs of drug abuse, misuse, or diversion-a doctor "better do something about it," testified one physician. And, an expert acknowledged, patients receiving steadily increasing amounts of medication should have regular office visits, including with a physician, physician assistant, or nurse practitioner-not only a nurse.

Dr. Murphy's practice was very busy. NAPS patients had an office visit every twenty-eight days to obtain their opioid prescriptions. The Decatur office saw about eighty to one hundred patients a day-and the Madison office, at least another fifty. In total, NAPS scheduled about two thousand patients a month for office visits. The clinics were so full of patients that there "wasn't a seat to be had" in the waiting room, and about twenty patients had to stand or wait outside. Sometimes, when exam rooms were full, a nurse conducted visits in the hallway or kitchen.

NAPS patients followed a standard routine to continue their prescriptions. They took a drug test at each visit. Regardless of the results of the in-house drug test, Dr. Murphy had standing orders that patients also do a comprehensive urine test, which was conducted in the NAPS clinic by an outside lab. Dr. Murphy required this extra test each visit, but insurers told him it should be "reserved for the confirmation of results produced by the simple screen." Also, twice a year, NAPS patients underwent a nerve conduction test by a company called QBR. QBR paid the Murphys $120 for every test that insurance covered. And that was often-QBR did more tests for Dr. Murphy than for any other doctor. QBR benefited too by using the highest-paying billing code, which required testing thirteen or more nerves. Patients complained about these painful tests, which Dr. Murphy often did not discuss with them. But to get their prescriptions, many patients had to complete these tests. And even though insurers did not allow standing orders for services like the urine and nerve tests, NAPS continued to issue such orders.

On top of the tests, NAPS also doled out unnecessary and expensive braces and medicated pain creams. Those prescriptions were funneled through the urine collectors who, though employed by an outside lab, did the Murphys' bidding and at times provided them with free labor. While the urine collectors obtained the urine samples, they routinely told patients that the patients needed these products and then filled out prescription orders pre-signed by Dr. Murphy. Mrs. Murphy told the collectors and patients that Dr. Murphy wanted patients to get those products in addition to their opioids. The Murphys even gave the collectors stamped or presigned prescription orders with four or five different signatures so that the photocopying and pre-signing was not too obvious. The collectors sent updated prescriptions for patients every month, whiting out and changing the date before sending in the same form, regardless of whether the patient visited on the new date. So those expensive creams came every month until patients contacted the pharmacy to stop-which they regularly had to do. Some patients told the pharmacies that they had not seen Dr. Murphy in years. Others received creams even after they died.

There was a reason the Murphys significantly over-prescribed braces and creams-money. Pharmaceutical sales representatives for those products paid the urine collectors a commission for each prescription the collectors sent in. Mrs. Murphy told the sales representatives which collectors to pay and how much. And two of the collectors whom she told the representatives to pay were her son and brother-in-law. As Dr. Murphy admitted on the stand, sales representatives seeking his business had paid his family members.

Patients could go long stretches of time without seeing Dr. Murphy because of the sheer volume of patients and because Dr. Murphy went to only one clinic a day. And because he often did not see patients at their visits, Mrs. Murphy would bring home a stack of unsigned prescriptions for Dr. Murphy to pre-sign-and he signed them days or even weeks in advance of patient appointments. For instance, Dr. Murphy signed a prescription for an August visit even though the patient did not attend that month's visit-he had died in July. Some patients complained about not seeing the doctor, and "even if they did see him, they didn't have time to discuss whatever concerns because it was so quick." Per Dr. Murphy's instructions, nurses began doing a process they dubbed a "wave by." As one nurse testified: "A wave by is when there is not enough time to actually see the patient. You were to bring them by the room Dr. Murphy was in so he could wave at them." Dr. Murphy also told his staff to use his billing code as a default, even when he did not see the patient, on the theory that he had reviewed patient charts in advance. Insurance companies do not allow that practice, witnesses testified-nurse or extender visits use a different billing number at a lower rate. Even when Dr. Murphy was not physically present, patient records included a boilerplate statement that he was available but the "patient decline[d]" to see him.

Dr. Murphy ignored many patients' red flags. Physicians who reviewed patients' medical files testified that he ignored signs of abuse. For example, there were indicators that some patients were abusing or selling their drugs. One patient testified that he had flagged his prior alcohol abuse on his intake form, but Dr. Murphy never explained the dangers of mixing opioids and alcohol. The patient admitted he was addicted to opioids while he was a NAPS patient for several years, only overcoming that addiction after the clinic closed. Nurses or physician assistants tried to release patients for repeatedly failing drug tests but were overruled by the Murphys. The Murphys refused to release one patient who failed drug tests because they had invested in the patient's patent and believed, as one witness stated, that the patent would "get them rich." At least one nurse left NAPS- for lower-paying employment- due to the quantity of opioids that NAPS was prescribing.

Dr Murphy was NAPS's sole doctor, but Mrs. Murphy managed its day-to-day operations. She had "[a]ll the authority" and "pretty much ran all aspects of the office," one witness stated. Witnesses further testified to aspects of her leadership, including that it involved "a lot of yelling" and "[a] lot of intimidation." She screamed at nurses and patients and would yell at a nurse to make Dr. Murphy "move faster." She referred to herself as the...