Federal District Court Judge Matthew Leitman in the Eastern District of Michigan issued a recent ruling that has significant impact on health professionals in the State of Michigan by excluding Michigan Prescription Drug Monitoring records from evidence in a criminal case against a physician. It appears that the Government’s habit of admitting Michigan Automated Prescription System (MAPS) reports under the business record exception does not comport with the Federal Rules of Evidence. For those unfamiliar, MAPS is a database containing data related to all controlled substances filled in the State of Michigan. Many other states have similar prescription drug monitoring programs (PDMP). The U.S. Attorney’s Office for the Eastern District of Michigan, and just about every other prosecutors office, traditionally introduces MAPS reports in prosecutions of physicians alleged to be overprescribing medications. In one such case, the Assistant U.S. Attorney (AUSA) sought introduction of MAPS reports in order to show that the physician prescribed over 25,000 illegitimate prescriptions. Attorneys, Ronald W. Chapman II and Edward Bajoka contested the evidence as irrelevant, inadmissible hearsay and a violation of the confrontation clause. In a very lengthy and thoughtful opinion issued from the bench, the court did not agree with the Defense’s relevance argument and did not reach the confrontation clause argument but ruled that the MAPS reports were inadmissible hearsay for which there was no exception under Fed. R. Evid. 803. The prosecution argued that the reports should be admissible under Fed. R. Evid. 803(6) because the records were reliable and pharmacies had a legal duty to report to MAPS. Judge Leitman did not agree, he determined that there are essentially three levels of hearsay related to MAPS reports:
- the report is a statement,
- the pharmacist who enters the data is making a statement, and
- the statement by the customer that the prescription is for a particular dose and issued by a certain physician.
Judge Leitman ruled that a Department of Licensing and Regulatory Affairs employee does not have sufficient knowledge to lay a foundation for prescriptions filled by multiple pharmacies in Michigan and thus the Pharmacists must be called to lay a foundation prescriptions used by the government against a physician. Moreover, Judge Leitman ruled that MAPS records and pharmacy records are not an appropriate substitute to show that the doctor actually issued the prescription at issue.
The effect of this opinion may be wide spread, this opinion paves the way for other Districts and Judges within the Eastern District of Michigan and courts elsewhere to prevent the Government from simply offering a MAPS report into evidence without a foundation from the pharmacist who worked at the originating entity. This will allow the physician the opportunity to contest the validity of the prescription by cross examining the pharmacist who filled the prescriptions and prevent the government from implying wrongdoing simply on the amount of prescriptions. The U.S. Attorney for the Eastern District of Michigan has not yet determined if she will appeal but this site will be updated accordingly.