Relying on Attorney’s Advice is no Defense in Patient Brokering Cases

The 4th District Court of Appeal ruled on Wednesday August 7, 2019 that defendants won't be able to beat criminal charges of patient brokering related to the opioid epidemic in Palm Beach County by claiming they got bad advice from their attorneys.

"As a matter of first impression, we hold that 'advice of counsel' is not a defense to the general intent crime of patient brokering" Judge Jonathan Gerber wrote on behalf of the three-judge panel.

The District Court's decision overturns a Palm Beach County Circuit Judge's previous ruling that allowed for nearly 90 people to blame their attorneys for engaging in patient brokering.

Florida Patient Brokering Act – § 817.505, Fla. Stat.

The Florida Patient Brokering Act is a criminal statute that provides that it is crime for any person, including health care providers and facilities, to offer or receive kickbacks, bonuses, commission or rebates, or engage in any split-fee arrangement, in return for referral of patients or patronage to or from a healthcare provider/facility. Violations of the Florida Patient Brokering Act is a third degree felony, punishable by up to five years in prison.

As a general intent crime, patient brokering requires the prosecution to prove that the defendant intended to do the act prohibited by law.

The intent element is thus satisfied if the prosecution can prove the defendant intended to offer or receive money in exchange patient referrals and actually caused the exchange of money to happen - it doesn’t matter whether the patients actually became patients of the particular healthcare provider or facility he/she was referred to.

Impact of the 4th District Court's Opinion

A defense to patient brokering by negating the criminal intent element would result in dismissal or acquittal by a jury.  By its opinion, the 4th District Court has eliminated the argument that the defendant is not guilty because he/she relied on the advice of an attorney that what they were doing was legal.

The Palm Beach County State Attorney has stated that his office will now renew prosecutions of patient brokering cases.

The 4th District Court ruling is expected to be appealed to the Florida Supreme Court.