After a lengthy sentence hearing in Beckley federal court, where Dr. Michael Kostenko continued to defend his medical practice at Coal Country Clinic, a judge sentenced him to serve 20 years in prison for improper distribution.
"You are, in my opinion, the worst kind of drug dealer," Judge Irene C. Berger said. "You poured thousands of prescription opiates into the streets, to people you knew weren't taking them as prescribed."
During the second day of his criminal trial in April, Kostenko asked the court to accept a guilty plea to one of the 22 felony counts against him.
He faced one count of maintaining a drug-involved premises; 19 counts of distributing oxycodone not for legitimate medical purposes; and two counts of distribution not for medical purposes resulting in the death of two patients. He pleaded guilty to one count of distribution not for legitimate medical purposes.
Judge Berger told Kostenko his greed took priority over the health and care of his patients. She also said he breached professional and ethical standards, and he violated his medical oath of "do no harm."
"You do not believe you have to follow the law... which makes you dangerous. Nothing short of losing your medical license could cause you to stop."
Berger said Kostenko's "arrogance" caused many of his patients to become addicted to the medications he prescribed them. While she said he is clearly "informed and bright," she said he went about his practice with disregard for rules and regulations.
The judge said the doctor's exams, pill counts and urine screens were inadequate. She also cited a single day in December 2013 when Kostenko wrote 375 prescriptions without actually seeing the 271 patients. The prescriptions totaled more than 22,000 oxycodone pills and more than $20,000 was collected in cash that day.
After his 20 years in prison, the 61-year-old must serve five years supervised release, and he must pay a $50,000 fine. Berger said had he been financially capable, she would have imposed a greater fine.
"I recognize this is a lengthy sentence... but it is arguably less than your conduct has earned."
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As the hearing began Wednesday morning, Kostenko again expressed dissatisfaction with his court-appointed attorneys, Ward Morgan and Derrick Lefler.
"I don't believe they ever articulated a defense," Kostenko said, noting no expert witnesses were subpoenaed for trial. "They didn't look at how the prosecution demonized oxycodone. I'll stop there, but in general, there was no effective defense."
Morgan said he and Lefler spent hours at Southern Regional Jail, where Kostenko was being held, to review discovery evidence provided by the prosecution.
"There was a lack of cooperation from our client," Morgan said as Kostenko turned to face him, eyebrows raised and mouth slightly agape.
Morgan said no expert witnesses could be found to testify on Kostenko's behalf, with the exception of one individual from Los Angeles, Calif., who charged $800 per hour — a cost-prohibitive move for the defense.
"We had an affirmative defense that we didn't get to at trial," Morgan said.
Lefler added, "We feel like we put together the best defense we had available."
The defense then offered a number of objections to items included in Kostenko's pre-sentence report, which is used to help judges determine an appropriate sentence for the defendant. Berger largely agreed with the interpretations of the prosecution for the issues raised.
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Charlotte Pritt, a former West Virginia delegate and senator, as well as 2016 gubernatorial candidate, spoke on Kostenko's behalf, defending his "non-pharmaceutical" and "non-invasive" techniques in his medical practice.
Lefler urged the court to consider a variant sentence, as he, too, defended Kostenko's practices.
"He has done many good things for many patients," Lefler said, noting many patients said the doctor helped save their lives. "There was substance in what he was attempting to provide to his patients."
In his address to the court, Kostenko reviewed his practice history, including the criticisms of his practice which arose after his public health advocacy for "pathologic adaptation," a medical principle Kostenko has described as the “failure to heal (and the) loss of resistance to stressors.”
"I'm guilty of doing this medicine," he told the court.
Assistant U.S. Attorney Miller Bushong said instead of focusing on public health concerns, Kostenko should have been more focused on his own patients.
"Perhaps 16 of his patients would not have died."
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If Kostenko wishes to appeal the decision of the court, he must file intent to appeal within 14 days. Due to his dissatisfaction with his current attorneys, new counsel will be appointed in the event of an appeal.
Kostenko and his daughter, Christina, with tear filled eyes, exchanged smiles before the bailiffs led him away.
After the hearing concluded, Christina indicated her father will appeal.
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