Dr. Kirkwood, 62, and his wife, Beverly, 50, are both scheduled to be sentenced Tuesday in Dayton’s U.S. District Court. Dr. Kirkwood could face from five to nine years in prison if U.S. District Court Judge Walter Rice accepts his plea deal, according to court documents, but Rice is not bound by that recommendation.
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Kirkwood pleaded guilty to one count of unlawfully distributing controlled substances and one of health care fraud. The maximum consecutive sentences Dr. Kirkwood could face are 30 years in prison and a $1,250,000 fine for the two counts in the plea agreement.
Kirkwood’s wife Beverly, who was the office manager for Kirkwood Family Practice, pleaded guilty to one count of health care fraud. She could be sentenced to 18 to 24 months for her role, according to her plea agreement. The maximum potential sentence she faces is up to 10 years in prison and a $250,000 fine.
A prosecutor’s sentencing memorandum said from Sept. 6, 2006 through Oct. 4, 2012, the doctor “knowingly, intentionally, and unlawfully distributed and dispensed mixtures and substances containing a detectable amount of Methadone, Oxycodone, Carisoprodol, and Alprazolam, all controlled substances, not for a legitimate medical purpose and outside the scope of medical practice.”
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A prosecutor sentencing memo said Beverly Kirkwood “knowingly executed a scheme or artifice to defraud a health care benefit program” by causing false claims to be submitted to the Medicare and the Ohio Medicaid programs. An indictment said the practice distributed nearly 4,000 units of Oxycodone outside the scope of medical practice.
The memo said Beverly Kirkwood did not have a high school diploma or GED and that her relationship with her husband is “strained.”
In October 2012, federal and state agents served a search warrant at the Kirkwoods’ 2838 Linden Ave. office in what Ohio Attorney General Mike DeWine then called a year-long investigation into a suspected pill mill. DEA agents removed boxes of what appeared to be records.
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In late 2014, a federal grand jury indicted the Kirkwoods on 20 counts related to a conspiracy “to make as much money as possible by distributing and dispensing controlled substances,” according to indictment documents.
The indictment listed seven people who allegedly died soon after receiving prescription pain pills from the practice: Eula Hoskins, 58, of Dayton; Deborah Goff, 54, of Trotwood; Ronald Jackson, 54, of Dayton; Tyrone Redavide, 45, of Dayton; Gregory Spurlock, 47, of Dayton; Norma Shepherd, 59, of Trotwood; and Gary Durham, 45, of Fairborn, according to the indictment.
In his memo, defense attorney Dennis Lieberman wrote that Dr. Kirkwood was a general practitioner who became involved in pain medication only after another doctor in the community stopped.
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“Dr. Kirkwood should have obtained additional training to become competent in the area of treating individuals in a pain practice,” Lieberman wrote. “He did not. Instead, he regretfully treated patients beyond his expertise which resulted in the current charges.”
In the memo, Lieberman objected to a pre-sentence report which stated that patients “lost their life as a result of the controlled substances prescribed by Dr. Kirkwood.”
The prosecution memo said the 2011 death of Durham, 45, of Fairborn, three days after receiving drugs from the Kirkwoods, was from the exact substances prescribed.
“The investigation of the defendant revealed that several of the defendant’s patients died from drug overdoses which were determined to be the result of multiple drug intoxication,” said the memo written by U.S. special assistant attorney Maritsa Flaherty. “The defendant’s overall disregard of his patient’s medical and pharmacological histories certainly put his patients at a higher risk of opiate overdose and/or endangered their health.”
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Lieberman’s memo included 18 letters of support written by Dr. Kirkwood’s patients and 10 more written by family, friends and colleagues. Many disputed DeWine’s characterization that the Kirkwood’s ran a pill mill.
One patient, Theresa Scherer, wrote “He hired the wrong people and trusted them and they have destroyed him and his family.”
Many writers said Dr. Kirkwood didn’t have the right people working for him while fellow doctors praised his work with an under-served community.
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J. Scott Wilcher, a fellow physician, wrote: “I never saw any signs of unethical behavior or immorality” and added that Kirkwood pleaded guilty to avoid the possibility of an even lengthier prison term.
“While many of them believe that he is not guilty of the charges to which he pled guilty, their belief is formulated upon their experience of Dr. Kirkwood, his integrity, his compassion and his never ending zeal to help them,” Lieberman wrote of the patients’ letters. “The portrait painted by the 28 letters attached to this Sentencing Memorandum are of a hardworking man who all of the writers believe would not intentionally harm anyone.”
The restitution owed to the government for health care fraud by the Kirkwoods was calculated at $159,825.03.
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