From Emily Allen in today's Portland Press Herald:
Kennebunk doctor says feds illegally confiscated patient records
Merideth Norris, who’s accused of overprescribing opioids, wants evidence against her tossed out.
By EMILY ALLEN Staff Writer
A federal judge must decide whether prosecutors can use the patient records at the heart of their case against a doctor in southern Maine who has been accused of overprescribing opioids and other controlled substances.
Dr. Merideth Norris, of Kennebunk, is scheduled for a jury trial in April in U.S. District Court in Portland. She faces 17 counts of distribution of a controlled substance.
Her attorneys have argued all evidence seized from her practice in October 2022 was taken in violation of her rights, because it was obtained through a "deliberately misleading" affidavit from federal investigators.
That evidence broadly includes patient schedules, referrals, treatment notes, assessments, medical correspondence and billing records.
Norris' team also is arguing a judge should throw out any evidence prosecutors plan to use from a search warrant for Norris' electronic patient records.
Although her indictment lists five specific patients whom Norris prescribed to between October 2021 and July 2022, prosecutors had access to records for dozens of other patients while investigating Norris in 2022.
They were granted special access to records for Norris' patients with substance use disorder after a judge approved prosecutors' application for access in August 2022.
Federal law offers a high level of privacy to substance use disorder patients. When a judge agrees to grant investigators access to these orders, they're instructed to only offer limited access.
Orders are only allowed when the "potential injury to the patient" and their care is outweighed by the public interest and the need for disclosure.
Norris' lawyers have argued that affidavits requesting search warrants for her practice and electronic medical records "misled the court" on the scope the legality of what investigators were able to take and the scope of the authorized scope of their search.
Prosecutors denied that the federal government violated these orders.
Records also were seized without any notification to the roughly dozens of patients they came from, according to testimony from investigators.
One investigator said Monday that she reached out to some of the patients referenced in Norris' indictment in January, at the direction of prosecutors.
Brian Pellerin, who an agent for the Department of Health and Human Services' Office of the Inspector General in 2022, helped execute the search warrant on Norris' practice that October.
He said he never went to those patients before or after their records were taken, nor was he aware of any other investigators doing so.
TWO INVESTIGATIONS
Norris was the first doctor arrested for her prescribing habits by the New England Prescription Opioid Strike Force in October 2022, months after the group's creation that June.
On Wednesday, FBI agent Dale Wengler said investigators were acting with haste when they arrested Norris because they felt lives were at stake.
Wengler signed the Oct. 25, 2022, affidavit that led to a search warrant for Norris' office, which Torresen approved.
Norris' attorneys argue Wengler left out key details, deliberately, that might not have shown Torresen enough probable cause.
Wengler's omissions included the fact that the Maine Board of Osteopathic Licensure had concluded an investigation into Norris' prescribing practices 12 days earlier, Norris' attorneys said. Wengler used the allegations that spurred the board's investigation in his affidavit, describing them as things the board had "determined."
Wengler's affidavit also made no mention of Norris' response to the board, which she filed with them in September, even though investigators had a copy of that response before the affidavit was submitted.
Emma Hinnigan, a diversion investigator for the Drug Enforcement Administration, was tasked with requesting Norris' disciplinary records from the state board. Prosecutors argue they have more evidence against Norris than anything to do with the state board's work - they have called her a "prescriber outlier" and alleged eight of her patients have died from overdoses.
Hinnigan testified Monday that she didn't know the board had dismissed its investigation against Norris until the day Norris' office was searched.
Both Wengler and Hinnigan denied intentionally withholding any information from Torresen, and both have downplayed the board's findings as having any bearing on their own work.
"In my experience, boards tend to not discipline their licensees," Hinnigan said Monday. "They tend to do whatever they can to avoid disciplinary action."
RABBIT HOLES
Hinnigan testified that even though she worked closest with the board, she never communicated with board members or the physician who conducted the investigation into Norris.
She didn't attend any public meetings, during which the board discussed its investigations, and didn't follow up to check if a conclusion had be reached ahead of the Oct. 25 warrant.
She said she was surprised the board had reached a decision so quickly.
But Torresen has shared her own shock with how fast Norris' criminal investigation has proceeded - Norris was arrested roughly four months after the task force began its work. Torresen said last week it was the fastest drug investigation she has ever seen.
And Norris' attorneys have suggested the investigation might've proceeded a little too fast.
In a September 2022 email to his supervisor, Pellerin, the agent for the Department of Health and Human Services, said he thought investigators were "chasing down leads from various rabbit holes."
"As of September 2022, you didn't know what possible charges there could be against Dr. Norris, did you?" asked Norris' lawyer Timothy Zerillo.
"We had our suspicions and we were working to gather facts as to whether those suspicious were validated or not," Pellerin said.
Emily Allen — 207-791-6457 eallen@pressherald.com
