BECKLEY – Former Raleigh County doctor Michael Kostenko is facing 20 counts of distribution of oxycodone in his upcoming trial in federal court.
Kostenko’s trial is scheduled to begin April 24 in the U.S. District Court for the Southern District of West Virginia at Beckley.
Kostenko had previously backed out of entering a plea deal in which he would’ve plead guilty to one count of intentionally distributing a quantity of oxycodone without a legitimate medical purpose. Since backing out, he now faces all 20 counts of distribution, among other charges and a jury trial.
On April 6, the United States responded to multiple pretrial motions filed by Kostenko. The United States wrote that there is no bright-line test to prove a physician acted outside the usual course of professional practice or beyond the bounds of medical practice.
“Rather, courts must determine whether reasonable inferences of guilt may be drawn from the facts of a specific case,” the response stated. “In a case-by-case analysis, courts look for questionable practices or recognized ‘red-flag’ evidence.”
Red flag evidence is often the leading proof of a physician’s distribution of controlled substances not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice, according to the response.
“A pattern of red flags is powerful evidence of a physician’s deviation from the accepted medical practice; and, importantly, a physician’s ‘idiosyncratic view of proper medical practices’ cannot constitute the ‘usual course of professional practice,’” the response states.
The United States intends to meet its burden of proof, in part, by offering relevant “red flag” evidence to prove conduct by Kostenko that was not for legitimate medical purposes in the usual course of professional medical practice and/or beyond the bounds of medical practice.
Kostenko’s attorney have asked the judge to prohibit prosecutors from introducing evidence about patients who died under Kostenko’s care but are not part of the charges brought against him.
The United States claims the photographs at issue are relevant to one of the counts against Kostenko and “are probative, and are not unfairly prejudicial,” and, because of that, the judge should deny Kostenko’s motion to suppress.
Between 2012 and 2016, 16 of Kostenko’s patients died of alleged drug overdoses while under his care. The deaths of seven of those former patients are part of the charges brought against Kostenko.
The United States wrote that Kostenko lost his medical license, in part, because of the overdose deaths.
“Defendant is charged with illegally distributing oxycodone which caused the death of Patients 1 and 5, and illegally distributing oxycodone to Patients 4, 8, 14, 15, and 19, all of whom died of oxycodone intoxication,” the response states.
Before the start of Kostenko’s trial, prosecutors will present the District Judge Irene Berger with the photos they want jurors to see and it will then be up to her whether to allow them to be used as evidence against the former doctor.
The United States is represented by Miller Bushong III, Eric Patrick Bacaj and Joshua C. Hands of the U.S. Attorney’s Office.
Kostenko is represented by Derrick W. Lefler of Gibson Lefler & Associates and E. Ward Morgan.
U.S. District Court for the Southern District of West Virginia case number: 5:16-cr-00221