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People v. Einstein

OPINION FILED MAY 7, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MORTON EINSTEIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT COLLINS, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Defendant, a pharmacist, was charged in a 152-count indictment with forgery and theft in submitting false prescriptions to the Department of Public Aid. After a bench trial, he was convicted and sentenced to concurrent terms of 3 years and 4 months to 10 years on each of 142 counts of forgery and 10 of theft. On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in allowing the State to call a nonpracticing pharmacist as an expert witness; and (3) he was improperly sentenced.

Richard Abrams, president of Farns Associates, Inc. (Farns), a book-keeping and financing company for major medical professions, testified that defendant did business with his company as Fullerton Kedzie Health Clinic (Pharmacy); that Farns advanced or lent money to defendant against prescriptions which defendant brought him in connection with welfare recipients; that when defendant came in with prescriptions, Farns would prepare a voucher describing the amount an account received, the service charge, and the amount of the next check payable to defendant; that Farns would then submit the prescription forms and all necessary papers to the Department of Public Aid for reimbursement; and that Farns did this type of work for many doctors, dentists, and pharmacists. Abrams identified microfilm copies of 71 prescriptions submitted to his company by defendant and checks, vouchers, and State warrants received by his company showing payment by the State on those accounts.

An assistant director of records with the State Comptroller's Office testified that her office issues all warrants as payments for the vouchers submitted, and she identified the name of defendant on the vouchers and warrants in question.

A supervisor of the Medicare Vouchering Unit of the Department of Public Aid testified that a public aid recipient receives a green card as a means of identification and, when seeking medical services, he takes the card to a physician; that if a prescription is necessary, the physician completes a portion of a two-page prescription form (215 form) which the recipient then takes to a pharmacist who provides the prescribed drug, signs and dates the form, and completes other portions labeled order number, item number, quantity, name of manufacturer, charge and credit; that the first page of the form is retained as a record by the pharmacist, and the second is the billing device submitted to the Department for payment. He also testified that a manual sent to providers states that a pharmacist may receive prescriptions over the telephone from a physician and may sign a physician's name with the physician's consent.

John Bertulis, a special agent for the Illinois Department of Law Enforcement, was called by the State as an expert witness. He stated that he graduated in 1973 with a bachelor of science degree from the University of Illinois College of Pharmacy and is a licensed pharmacist; that he worked in pharmacies during the summers while in school and, under the supervision of a registered pharmacist, prepared "tens of thousands" of prescriptions; that he worked for two years after graduation as a pharmacist; and that, in his current job, he uses his expertise to act as a consultant to the Department in pharmacy and doctor investigation.

Defense counsel at that point was permitted to cross-examine the witness as to his qualifications, and it was brought out that he did not have a master of science or a Ph.D. in pharmacology; that he did not take any post-graduate courses, and did not belong to any pharmacology organization; and that the last time he acted as a registered pharmacist was in 1975.

Over the objection of defense counsel, Bertulis testified as to the medicinal purposes of particular drugs on the prescription forms in evidence and that the drugs prescribed for certain recipients would not have been prescribed by physicians because they were inappropriate for the medical problem of the patient.

An employee at the Kedzie and Diversey Currency Exchange, after identifying a signature card which defendant had filled out at the currency exchange, testified that she cashed business checks for him from Farns; that she recognized his signature because she had seen him write it three or four hundred times; and that defendant's signature was on the back of checks shown to her.

A former document examiner with the Chicago Police Department testified as an expert witness over the objection of defense counsel that the known writing samples of defendant matched his signature on the Public Aid Department 215 forms in evidence.

Nathanael Burgos testified that as a high school student from 1974 to 1976, he was employed part-time by defendant at the Pharmacy; that beginning December 1974, defendant gave him blank 215 forms as well as two to three original prescriptions and asked him to copy the case identification number, the patient's first and last name, address, doctor's American Medical Association (AMA) number from the original to the blank forms, to make two check marks for refills, and to sign the doctor's signature, and defendant then wrote in the item numbers, quantity, charge, and price; that he (Burgos) wrote out about three to four hundred forms each month; that he specifically remembered having copied the names Nilda Nieves and Linda Quintanna; and that he once saw defendant give another employee approximately 40 blank 215 forms and three to four originals. Burgos also identified his handwriting and that of defendant on the forms admitted into evidence.

Doctor Guziec testified that he had a patient named Brenda Lindsey in January 1975 whom he surgically treated for trauma to her nose; that Lindsey had also seen Dr. Dominguez-Gross for treatment; that he prescribed a medicine known as Rondomycin and post-operatively prescribed Tylenol #3; that he never authorized any prescriptions for her after January 20; and, when asked about drugs listed on eight prescription forms dated February 8 and March 19, 1975, which had the name "Gross Gizie [sic]" on them, he stated that he rarely and in some cases never in his career had prescribed those drugs. He identified certain exhibits as prescriptions with the name "Gross Gizie [sic]" on them but testified that he was totally unfamiliar with those prescriptions. On cross-examination, he stated that he often spoke with pharmacists on the telephone and did not have an independent recollection of when he treated Lindsey.

Dr. Dominguez-Gross testified that she treated Brenda Lindsey, called Dr. Guziec for authorization to prescribe Tylenol #3, and signed the prescription "Dr. Gross/Guziec."

Brenda Lindsey testified that she began receiving public aid in 1974; that Dr. Guziec performed surgery on her nose; that she was given a prescription by Dr. Dominguez-Gross, who treated her when Dr. Guziec was unavailable, which she filled at the Pharmacy; that she lost her green card in 1976; and that she never received the other prescriptions in evidence with her name on them.

Wilma Salley stated that she was a public aid recipient in 1974 and 1975; that she used her green card and went to the Pharmacy on one occasion to have a prescription filled and could not identify the 10 other prescriptions in evidence with her name on them.

Two pediatricians testified that they never prescribed certain medicines written on the prescriptions in evidence because they were not applicable to their field, and that they never signed nor authorized the prescriptions with their names on them. One of the doctors further testified that although he did prescribe certain medicine for Imelina Quintanna in 1973, he never prescribed medication for the child's mother, Linda Quintanna, who was named on 11 of the prescriptions at issue. The State similarly elicited testimony from three other physicians to the effect that prescriptions in evidence bearing their names were not signed, written, or authorized by them.

Linda Quintanna, Theresa Styck, Angela Carmona and Nilda Nieves testified in substance that they were public aid recipients and that they had never received prescriptions shown to them in court. Nieves further stated that she had moved and lived at addresses different than those listed on the prescriptions ...


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