CAPE MAY COURT HOUSE - A North Wildwood physician refused to write an illegal prescription for an undercover Cape May County Prosecutor's investigator in 2005, a Superior Court judge was told Tuesday.
But in 2007, two undercover county investigators posing as exotic dancers allegedly succeeded individually in getting Dr. John Costino to write them prescriptions for painkillers without giving them complete exams, according to testimony presented to Superior Court Judge Raymond Batten.
During a pre-trial hearing Tuesday, Batten heard testimony outlining the prosecution's case against Costino as well as the defense's assertion that the state has targeted Costino.
Costino, 67, is charged with multiple counts of distributing a controlled dangerous substance (Percocet) to two female undercover officers who visited Costino's North Wildwood medical practice between April and August 2007. He is also charged with health care claims fraud.
The state argues the women, who told Costino they were exotic dancers, never told Costino they were in pain and that he never conducted a complete medical examination before prescribing Percocet for them on seven separate occasions. Percocet is a combination of acetaminophen and oxycodone used to treat moderate to severe pain.
During a daylong hearing Tuesday, defense attorney John Tumelty told Batten that the undercover officers' "goal was to trick" Costino into prescribing the prescriptions.
The defense attorney said that one of the undercover officers came across as conflicted about whether or not she was in pain, and that she told the doctor she was an exotic dancer who spent much of her day on her feet.
Tumelty also attempted to convince Batten that the medical records of that officer, referred to as undercover one, should be deemed admissible to demonstrate that she received medical care from a chiropractor in July 2007.
He told the judge that the undercover officer's statements to her chiropractor put her credibility into question.
"Credibility with respect to the two undercover officers in this case is a material issue in this case," Tumelty said.
Tumelty argued that while the woman may not have said she was in pain Costino assessed her condition not only on her words but on her physical manner during her visit to his office.
"I would expect to cross-exam her on her physical condition" and whether she was in pain when she saw Costino, Tumelty said.
Assistant Prosecutor Tina Kell said the officer's personal medical records should not be admitted as evidence at trial because they were irrelevant to her role as an undercover officer.
Kell said nothing in Costino's records indicates he noticed any physical problem during the officer's visit.
"His medical records are silent on that issue," Kell said.
Kell said the undercover officer never said she was in pain and that during his examination he only listened to her heart and lungs. Kell said there was nothing else in the records to indicate she needed medication "other than ... what he conjured up."
Batten is expected to make a ruling on the admittance of the medical records in two weeks.
Other motions are also slated to be heard as late as March, meaning a tentative February trial date is no longer an option.
Costino's case has been pending since Sept. 14, 2007, the day he was arrested at his office on Surf Avenue in North Wildwood.
Since then, two other indictments charging Costino and his wife, Barbara Haas, with health care claims fraud have been dismissed by a judge because of failed grand jury presentations. A July 2009 indictment was dismissed by Batten due to a lack of specifics in the lengthy indictment. In March 2011, Batten dismissed a fraud indictment against Costino after determining that prosecutors presented incorrect information to a grand jury.
Costino was indicted on the drug distribution charges in January 2011 under a superseding indictment. He was initially indicted on those charges in 2008.
Before his arrest, Costino, whose medical license was revoked in December 2009, was a physician specializing in pain management, geriatric medicine and the treatment of heroin addiction.
Also on Tuesday, Sgt. Joseph Landis testified that, posing as a heroin addict, he met with Costino on Dec. 13, 2005, "to obtain a prescription for pain medication."
But Landis said that Costino turned him down, instead prescribing a legal drug used for treating heroin addiction called Suboxone, a combination of buprenorphine and naloxone.
Landis said he was directed to go undercover while he was a member of the Cape May County Prosecutor's Office narcotics task force, and that the investigation was prompted by information provided by the Drug Enforcement Agency about Costino.
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