Heard: September 5, 2019.
Indictments found and returned in the Superior Court
Department on January 26, 2017. Motions to dismiss were heard
by Mark D. Mason, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Benjamin Shorey, Assistant District Attorney, for the
O'Donald III for Frank Stirlacci.
Anderson for Jessica Miller.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
2017, a Hampden County grand jury indicted Dr. Frank
Stirlacci and his office manager, Jessica Miller, for
numerous violations of the Controlled Substances Act, and for
submitting false health care claims to insurance providers.
The charges under the Controlled Substances Act included
twenty-six counts each of improper prescribing, G. L. c. 94C,
§ 19 (a.), and twenty counts each of uttering a false
prescription, G. L. c. 94C, § 33 (b). The defendants
also were indicted on twenty-two charges each of submitting a
false health care claim, G. L. c. 175H, § 2.
Superior Court judge subsequently dismissed the indictments
for improper prescribing and uttering false prescriptions.
Because of insufficient evidence, the judge also expressed an
intent to dismiss six of the twenty-two indictments against
each defendant for submitting false health care claims. The
Commonwealth appealed from the dismissals pursuant to Mass.
R. Crim. P. 15 (a) (1), as amended, 476 Mass. 1501 (2017).
reasons that follow, we conclude that there was sufficient
evidence to indict Stirlacci on twenty-six counts of improper
prescribing, but that Miller's status as a
nonpractitioner precludes her indictment under that
provision. We conclude further that there was insufficient
evidence to indict either defendant for uttering false
prescriptions. Finally, there was sufficient evidence to
indict both defendants on twenty of the twenty-two counts
against each defendant of submitting false health care
claims, in violation of G. L. c. 175H, § 2.
recite the facts as the grand jury could have found them,
reserving some details for subsequent discussion. The
Commonwealth's investigation of Stirlacci, a physician
who operated a solo practice with offices in Agawam and
Springfield,  stemmed from a number of prescriptions
issued between April 17, 2015, and May 11, 2015, while he was
incarcerated in Louisville, Kentucky. Of particular
concern to investigators were fifteen prescriptions for
hydrocodone, six prescriptions for oxycodone, two
prescriptions for fentanyl, and three prescriptions for
of its investigation, the Commonwealth obtained recordings of
Stirlacci's telephone calls made from the Louisville
facility where he was being held. In these conversations, he
spoke of his inability to raise money to satisfy his alimony
obligations if he remained incarcerated and unable to see
patients. In addition, he expressed concern that he needed to
maintain sufficient cash flow to keep his practice open, that
he was abandoning his patients, and that he could incur
liability if a patient suffered an injury as a result of not
being able to obtain necessary medication.
Stirlacci was on vacation or otherwise out of the office, he
typically would leave pre-signed prescription forms for
Miller, who was not a medical professional, to use for
patients who came in for prescription renewals. While
Stirlacci was in jail, he instructed Miller that, if a
patient came in seeking a renewal, she should issue it and
also submit a claim to the patient's insurance company.
Miller sought to clarify whether she could submit claims for
visits where Stirlacci would not have seen the patient.
Stirlacci told her that even if he did not see the patient,
the office was "doing work" and should submit a
claim. He also explained that such claims would be "down
charg[ed]" because the patient had not seen a
conversations between Miller and Stirlacci reveal
Stirlacci's mounting frustration with his inability to
run his practice, which he worried would "implode"
in his absence. The conversations also indicate that a nurse
practitioner employed by Stirlacci raised concerns to Miller
about the propriety of Miller issuing renewal prescriptions.
In addition, the nurse practitioner objected to Miller
billing for patients who had not been examined by Stirlacci
on that date. Stirlacci reassured Miller that she knew the
proper standards for billing, and she should do what she knew
was "right." He also expressed frustration with the
nurse practitioner's unwillingness to recognize that
small private practices could not afford to follow every
regulation if they were going to be successful businesses and
remain flexible enough to accommodate patients.
January of 2017, the Commonwealth convened a grand jury to
present the results of its investigation. The evidence
submitted to the grand jury included a complete transcript of
Stirlacci's telephone calls with Miller and other
associates while he was incarcerated in Kentucky. It also
included records for twenty-two patients who either were
issued prescriptions, or whose insurance providers were
billed for office visits, on dates when Stirlacci was in
Kentucky and Miller was working in the office. These records
included copies of twenty-six prescriptions for narcotics,
all issued on dates when Stirlacci was in Kentucky and Miller
was at the office. The records also included copies of
billing entries showing that each patient's insurance
provider had been billed for an office visit on a date when
Stirlacci was in Kentucky. In some instances, the records
also included documents from the patients' insurance
companies that referenced the reimbursement claims, thus
indicating that a claim had been made.
Commonwealth's sole witness was a State police trooper
who had worked on the investigation. Although the trooper did
not provide a detailed explanation of medical billing
practices or what the specific billing codes in the patient
records meant, he stated that the records showed that the
patients' insurance providers were billed for the
patients having seen Stirlacci. The trooper further explained
that Stirlacci was not directly issuing the prescriptions
from jail, but that Miller was filling out the prescriptions
using blank prescription forms that had been pre-signed by
Stirlacci. The trooper also confirmed that all the
prescriptions were renewals for ongoing treatment.
trooper read two excerpts from the transcripts of
Stirlacci's telephone calls to Miller while he was
incarcerated. In the first conversation, Stirlacci directed
Miller to issue prescriptions and submit billing charges for
the times when patients came to the office to pick up
(renewal) prescriptions.In the second excerpt, Stirlacci and
Miller discussed the nurse practitioner's concerns with
this arrangement. The trooper also testified that he had
interviewed that nurse practitioner, and read the grand jury
her written statement. Her statement provided an account of
the manner in which Stirlacci's medical practice operated
in his absence. In addition, the nurse practitioner said that
the signatures on the prescription forms issued in
Stirlacci's absence were in Stirlacci's handwriting,
but that the details of the prescriptions were in
Miller's. The nurse practitioner mentioned requests she
had received from Miller and from the Springfield office
manager (Miller only managed the Agawam office) to complete
patient notes for patients she herself had not seen; she
refused these requests.
and Miller each were indicted on twenty-six charges of
improper prescribing, G. L. c. 94C, § 19 (a.); twenty
charges of uttering false prescriptions, G. L. c. 94C, §
33 (b); and twenty-two charges of submitting false health
care claims, G. L. c. 175H, § 2. After a hearing on the
defendants' joint motion to dismiss for insufficient
evidence to establish probable cause, the judge dismissed the
indictments for improper prescriptions and uttering false
prescriptions, and further concluded that there was
insufficient evidence as to six of the twenty-two false
health care claims. The Commonwealth appealed to the
Appeals Court, and we transferred the consolidated appeals to
this court on our own motion.
Commonwealth contends that the evidence indicating that
Miller provided pre-signed prescriptions to patients when
Stirlacci was not present established probable cause either
that the prescriptions lacked a legitimate medical purpose or
that they were issued outside the usual course of
professional practice. The Commonwealth also maintains
that evidence that Miller filled out prescriptions which had
been pre-signed by Stirlacci established probable cause that
both defendants uttered false prescriptions, and that
submitting billing claims for these visits established
probable cause that both defendants submitted false health
Standard of review.
in general, a "court will not inquire into the
competency or sufficiency of the evidence before the grand
jury" (citation omitted), Commonwealth v.
Robinson, 373 Mass. 591, 592 (1977), a "grand jury
must hear sufficient evidence to establish the identity of
the accused . . . and probable cause to arrest him [or
her]" for the crime charged, Commonwealth v.
McCarthy, 385 Mass. 160, 163 (1982). A grand jury may
indict when presented with sufficient evidence of "each
of the . . . elements" of the charged offense.
Commonwealth v. Moran, 453 Mass. 880, 884 (2009).
cause is a "considerably less exacting" standard
than that required to support a conviction at trial.
Commonwealth v. O'Dell, 392 Mass. 445, 451
(1984). It requires "sufficient facts to warrant a
person of reasonable caution in believing that an offense has
been committed," not proof beyond a reasonable doubt.
Commonwealth v. Levesque, 436 Mass. 443, 447 (2002).
An appellate court reviews the evidence underlying a grand
jury indictment in the light most favorable to the
Commonwealth. See Commonwealth v. Catalina, 407
Mass. 779, 781 (1990). In considering a judge's decision
to dismiss for lack of sufficient evidence, we do not defer
to the judge's factual findings or legal conclusions. See
Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015).
Improper prescribing in violation of G. L. c. 94C, §
Controlled Substances Act mandates that valid prescriptions
for controlled substances "be issued for a legitimate
medical purpose by a practitioner acting in the usual course
of his [or her] professional practice." G. L. c. 94C,
§ 19 (a.) . Practitioners who issue invalid
prescriptions are subject to criminal penalties. Id.
To determine whether the indictments should have been
dismissed, we must (a) establish the standard for
"improper prescribing" by defining the relationship
between "legitimate medical purpose" and
"usual course of professional practice"; (b) assess
whether the Commonwealth presented sufficient evidence to
establish probable cause that there was improper prescribing
by a practitioner, and (c) decide whether the explicit
reference to practitioners in the Controlled Substances Act
precludes liability for a nonpractitioner such as Miller. We
conclude that the Commonwealth has met its burden with
respect to Stirlacci, but that G. L. c. 94C, § 19 (a.),
does not impose liability on nonpractitioners such as Miller.
Standard for "improper prescribing."
statute must be interpreted according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language" (citation
omitted). Seideman v. Newton, 452 Mass. 472, 477
(2008). In order to effectuate the intent of the Legislature,
we consider the text "in connection with the cause of
its enactment . . . and the main object to be
accomplished." (citation omitted) . Id. We
discern the intent "from all [of a statute's] parts
and from the subject matter to which it relates."
Id. We also consider a statute within the context of
the broader statutory framework, including prior versions of
the same statute and similar enactments. See Bellalta v.
Zoning Bd. of Appeals of Brookline, 481 Mass. 372, 378
Defining "legitimate medical purpose" and
"usual course of professional practice."
Laws c. 94C, § 19 (a.), provides that a valid
prescription is one issued "for a legitimate medical
purpose by a practitioner acting in the usual course of his
[or her] professional practice." G. L. c. 94C, § 19
(a.) . Articulating a standard for improper prescribing
requires us to define these two concepts and to determine
their respective roles in distinguishing valid prescribing
from criminal conduct.
Commonwealth argues that it is sufficient to prove either
that a prescription lacked a legitimate medical purpose
or that it was issued outside the usual course of
professional practice. In the Commonwealth's view, G. L.
c. 94C, § 19 (a.), imposes two distinct requirements for
a valid prescription: that it (1) have a "legitimate
medical purpose" and (2) be issued in the
"usual course of professional practice." Thus, the
Commonwealth argues, a prescription is improper if the
Commonwealth can prove that a practitioner failed to meet
just one of these requirements.
not convinced by this argument. General Laws c. 94C, §
19 (a.), provides that a valid prescription is one issued
"for a legitimate medical purpose by a practitioner
acting in the usual course of his [or her] professional
practice." To read "legitimate medical
purpose" and "usual course of professional
practice" as two distinct requirements would require
inserting the word "and" between the two phrases.
We "refrain from reading into the statute . . . words
that the Legislature . . . chose not to include"
(quotation and citation omitted). Essex Regional
Retirement Bd. v. Swallow, 481 Mass. 241, 252
(2019). Moreover, for the reasons that follow, we conclude
that "legitimate medical purpose" and "usual
course of professional practice" are best read as a
single, holistic standard.
neither "legitimate medical purpose" nor
"usual course of professional practice" are defined
anywhere in the statute, we turn first to the ordinary usage
of this language. "Purpose" implies one's goal
or intent, Black's Law Dictionary 1493 (11th ed. 2019),
while "legitimate" implies something that is
"genuine" or "lawful," see Id.
at 1084. Accordingly, "legitimate medical purpose"
may be read as a genuine or lawful medical intent or goal.
"Usual" implies "ordinary" or
"customary." See Id. at 1857.
"Course" implies a "routine." See, e.g.,
Id. at 443 (defining "course of business"
as "[t]he normal routine of managing a trade or
business" [emphasis added]). "Professional"
means "pertaining to one's profession," here,
the medical profession. See Dorland's Illustrated Medical
Dictionary 1514 (30th ed. 2003). The "usual course of
professional practice" thus may be read to mean the
routines customarily expected in the context of the medical
profession. See United States v. Smith, 573 F.3d
639, 647-648 (8th Cir. 2009) ("usual course of
professional practice" refers to "generally
recognized and accepted medical practices" [citation
the plain language, then, we can infer that the relevant
factors when determining if a practitioner has engaged in
improper prescribing are whether the practitioner's
intent is not related to a genuine medical objective, and the
degree to which the practitioner's conduct deviates from
"generally recognized and accepted medical
practices." See Smith, 573 F.3d at 647. What
remains unclear is the precise relationship between these
factors. We therefore turn from the text to a broader
consideration of the objectives of the statute.
Purpose of G. L. c. 94C, § 19 (a).
crafting the Controlled Substances Act, the Legislature
recognized the need to strike a careful balance between
allowing medical practitioners to prescribe narcotics where
appropriate as medical treatment and preventing the same
practitioners from abusing this power to promote the unlawful
distribution of these drugs. By its terms, G. L. c. 94C,
§ 19 (a.), both serves to create "an exemption from
criminal liability" for practitioners who issue proper
prescriptions and a "gateway to liability" that
"makes it possible to prosecute physicians" who
issue improper prescriptions. See Commonwealth v.
Brown, 456 Mass. 708, 717-718 (2010). This fundamental
legislative intent can be traced to previous drug laws in the
Commonwealth, which use similar language and reflect a
concern with ensuring that medical professionals do not use
their prescribing authority to evade narcotics
preserve this careful balance, courts also have held that the
prohibition on improper prescribing does not establish
criminal liability merely for medical malpractice. "It
is not enough to show that the physician did not comply with
accepted medical practice." Commonwealth v.
Kobrin, 72 Mass.App. Ct 589, 596 (2008). In
Commonwealth v. Comins, 371 Mass. 222, 232 (1976),
cert, denied, 430 U.S. 946 (1977), we observed that
"mere malpractice in the prescribing of drugs has not
been made a crime," and that the physician must not have
"intend[ed] to achieve a legitimate medical
approach is consistent with positions adopted by the Federal
courts in interpreting the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. §§
801 et seq., on which the Commonwealth's Controlled
Substances Act is modeled. See Brown, 456 Mass. at
716. Under the Federal statute, "courts have
consistently concluded that it is proper to instruct juries
that a doctor should not be held criminally liable if the
doctor acted in good faith when treating his [or her]
patients." United States v. Hurwitz, 459 F.3d
463, 477 (4th Cir. 2006). "[T]he government must prove .
. . that the practitioner acted with intent to distribute the
drugs and with intent to distribute them outside the course
of professional practice." United States v.
Feingold, 454 F.3d 1001, 1008 (9th Cir.), cert, denied,
549 U.S. 1067 (2006).
Standard for improper prescribing under G. L. c. ...