Monday, May 13, 2013

Convictions for Prescribing Controlled Substances Without Legitimate Medical Purpose Upheld for Pain Management Doctor

U.S. v. Mackay, 2013 WL 1802147 (4/30/13) (Ut.) (Published) - There was sufficient evidence to support convictions for prescribing controlled substances to patients outside the usual course of medical practice and without a legitimate medical purpose. The jury did not convict the defendant just because his patient charts were not adequate or because of the subjective opinions of an expert. The expert testified there was no legitimate medical basis to prescribe the opioid medications in the quantity and over the time span the defendant prescribed for each indictment patient. The charts revealed early prescription refills, lack of depth in examinations and instances where the defendant did not relay his diagnosis to the patient. The testimony of patients and the receptionist backed up the expert's assessment. It didn't matter if the patients were actually experiencing pain. 10th Circuit case law provided adequate notice the Controlled Substances Act prohibited his conduct. And, in any event, due process does not preclude prosecution of someone for engaging in conduct that had never been prosecuted before. There was sufficient evidence that the death of 1 of the defendant's patients resulted from the defendant's prescriptions for oxycodone and hydrocodone and were reasonably foreseeable. The patient had previously overdosed on methadone the defendant had prescribed. The patient sought an early refill. The defendant knew the patient was getting opiates from another doctor and was on the defendant's do-not-see list and that the patient binged on his medication. The defendant prescribed more oxycodone and hydrocodone than the patient needed. There was testimony the patient took a large amount of the drugs before he died. Contrary to other experts' testimony, one expert, the only toxicologist witness, testified the levels of the drugs found in the body postmortem don't matter. She testified the death would not have occurred absent the hyrdocodone and the oxycodone. The 10th finds from this evidence the jury could find the oxycodone by itself, count 1, and the hydrocodone by itself, count 2, resulted in the patient's death [?]. The 10th notes it would not decide if ยง 841(b)(1)(C) requires the government to prove proximate cause and/or reasonable foreseeability, while noting other circuit opinions have held the government has no such burden. In this case, the government acquiesced in instructions placing that burden on it and so it had that burden under the law-of-the-case doctrine.
Troublingly, the 10th suggests maybe a defendant waives the right to plain error reversal if the defendant does not argue that the plain error standard is met until the reply brief. The 10th acknowledges there are arguments in favor of both sides of that question. Certainly such a rule is problematic where a defendant has good reason to believe the issue was preserved below and only learns of an argument to the contrary when the government files its response brief. The 10th reviewed the defendant's challenge to the admission of an autopsy report as violative of the Confrontation Clause under the plain error standard. While an 11th Circuit case applying Bullcoming to autopsy reports was decided after trial, Bullcoming was decided before the trial. So there was no intervening- change-in-the-law excuse for not raising the issue at trial. The defendant did not satisfy the plain error standard because he didn't show any error affected his substantial rights. Troublingly again, the 10th finds no effect because there was sufficient evidence to convict aside from the autopsy report. That isn't the test. The defendant also forfeited a challenge to the formulation of jury instructions because he did not help the d. ct. draft those instructions, despite the d. ct.'s request that he do so. And he waived a plain error argument by not making such an argument in either of his briefs. And, on the same theme, the defendant did not preserve a challenge to the qualifications and methodology of the government's expert. The defendant only objected below that the expert's testimony would be cumulative and that a pathologist would be a more appropriate expert to testify. Because of the failure to object on Daubert grounds, the d. ct. had no obligation to make explicit reliability findings. There was no plain error to admit the toxicologist's testimony. She was board certified. She did not testify on the ultimate issue of the defendant's guilt. She only explained her observations based on the evidence. The 10th wonders aloud, but does not resolve, whether a defendant would avoid waiver of a plain error argument by noting facts that would support a plain error argument, even if the defendant doesn't explicitly note the plain error standard.
The 10th finds no abuse of discretion in admitting evidence the defendant was high on the list in the state of Utah in number of hydrocodone and oxycodone prescriptions, despite Rule 403. That evidence painted a picture of the defendant's practice as a pain management physician. And, according to the 10th, it countered counsel's claim in the opening statement that the defendant shifted his practice to pain management to eliminate the need of community members to travel to other parts of the state to receive pain treatment. The 10th admitted the evidence could evoke an emotional response, but stressed that to be excluded under Rule 403 the prejudice must substantially outweigh the probative value and that it must accord deference to the d. ct. The 10th distinguished a helpful 8th Circuit reversal under similar circumstances on the grounds that in this case the defendant "opened the door" in the opening statement.
The defendant preserved his arguments challenging the differential treatment between hydrocone mixtures resulting in death , zero to 15 years, and oxycodone resulting in death, 20 years to life. While he refined his argument to refer to "mixtures" on appeal, the gist of his argument hadn't changed from what he argued below. The defendant's 20-year, below-guideline-range sentence was not cruel and unusual. On the thin record before the 10th it could not decide the AG acted irrationally in scheduling one drug under Schedule II and another under Schedule III. The d. ct. did err when it imposed an across-the-board 20-year sentence, given that the maximum sentences of some of the defendant's offenses were less than that. The 10th remanded for the d. ct. to correct that, while admonishing the d. ct. to provide better explanations for its downward variance.