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Judge gives Gosy a right to advise on painkillers

When considering bail in a criminal case, a judge will almost always look at the potential danger that the defendant may represent to the community.

The federal judge overseeing the prosecution of Dr. Eugene J. Gosy found a different kind of danger Monday – the potential for a public health crisis if Gosy’s pain management practice shuts down.

U.S. Magistrate Judge H. Kenneth Schroeder Jr. said the potential for a crisis was serious enough to warrant a major change in Gosy’s bail, a change he hopes will help keep the Amherst medical practice open to thousands of patients.

Under the change approved by Schroeder, the neurologist and pain medication specialist will be able to return to his practice and, under the direction of a supervising physician, make recommendations on the use of painkillers and other narcotics.

“What’s the alternative – do nothing and make 10,000 people suffer?” Schroeder asked Monday.

Schroeder, in a ruling from the bench, pointed several times to the thousands of patients in Gosy’s practice and suggested they represent a different kind of danger to the community.

With patients not having access to Gosy’s practice or a suitable alternative, the judge said, he worries about their health and the impact on their pain from illnesses and injuries.

“You created a danger, as well,” Schroeder told federal prosecutors at one point Monday. “There are two sides to a coin. This is one of those rare instances when the other side of the coin appears.”

In ordering the change in bail conditions, Schroeder criticized the government for not providing expert medical testimony to back up its contention that Gosy’s practice could function without his ability to recommend controlled substances.

In contrast, the defense provided an affidavit from Dr. Robert A. Milch, a respected pain management expert and one of the three doctors who are currently filling in for Gosy.

“I don’t think I have to tell this court what will happen if this practice closes,” Joel L. Daniels, a defense lawyer for Gosy, told Schroeder at one point Monday.

Milch, in his statement to the court, predicted that the office would close within two weeks and said the only way to keep it open is for Gosy to return. He said Gosy’s experience and expertise are crucial to the treatment of his patients’ complex medical problems. The doctor also warned of a “veritable tsunami” of chronic pain patients flooding the community looking for care if Gosy’s practice were allowed to shut down. Milch also offered to stay on as a supervising physician.

The change in Gosy’s bail came seven weeks after his indictment on federal charges and after local health officials warned of a public health crisis if his practice shut down. Gosy faces charges that he issued illegal prescriptions and cheated the state workers’ compensation system.

Gosy did not ask for the authority to prescribe painkillers – he lost that after he was charged with writing thousands of illegal prescriptions. But he did ask for the ability to ask other doctors to prescribe them.

“We just believe it’s the right thing to do for the community,” said Herbert L. Greenman, one of Gosy’s defense lawyers.

Prosecutors opposed Gosy’s request and said that there was nothing standing in the way of his return to his medical practice, one of the largest pain medication practices in the state. They also argued that the doctor’s bail conditions did not limit in any way his ability to diagnose or consult on pain management cases.

What prosecutors are against is giving Gosy the ability to prescribe narcotics or ask others to prescribe them on his behalf. To make their case, they pointed to the laundry list of allegations against him.

At the crux of the case outlined in court papers is the allegation that Gosy issued hundreds of thousands of prescriptions for controlled substances without proper medical review.

Prosecutors also allege that he continued to prescribe addictive drugs even when there were clear indications that patients abused them.

At the request of Assistant U.S. Attorney George C. Burgasser, Schroeder gave the government access to any new prescriptions written at Gosy’s office, as well as access to the doctors who write them.

“We can now go to the practice and monitor what’s going on,” Burgasser said Monday.

Assistant U.S. Attorney Russell T. Ippolito Jr. said Schroeder’s ruling also is significant in what it did not do, which is give Gosy the ability to sign prescriptions or have the final say on prescriptions.

“We’re happy with the judge’s decision today,” Ippolito said.

Gosy, 55, of Clarence, is charged with conspiracy to distribute controlled substances, unlawful distribution of narcotics, conspiracy to commit health care fraud, and health care fraud. If convicted, he could face up to 20 years in prison.