In the current climate of heightened awareness of the dangers of opioid addiction–and enhanced enforcement by New York State Health Department’s Office of Professional Medical Conduct and the Drug Enforcement Administration–New York’s highest court, by majority decision, has recently affirmed the conviction of a physician on charges of manslaughter in the second degree where two of his patients died of fatal overdoses caused by the patients’ abuse of opioids and other controlled substances prescribed by the physician. The People, Respondent v. Stan XuHui Li, Appellant, __ N.Y.3d __, __ N.E.3d __, __ N.Y.S.3d __, 2019 WL 6312500, 2019 N.Y. Slip Op. 08544 (November 26, 2019).
In People v. Li, the defendant-physician was accused of running a “pill mill” at his pain management clinic in Queens. In its decision, the Court of Appeals detailed the prosecution’s evidence of the practice patterns employed by the defendant-physician in the overall operation of his clinic: Prescribing combinations of high doses of opioids, alprazolam (Xanax) and other controlled substances; little to no physical examination of his patients; poor documentation of the medical necessity for such prescriptions; failure to order diagnostic tests for objective confirmation of the existence of the pain; and requiring payment in cash with an increased fee for, among other things, higher or more frequent doses of opioids, if a friend or family member picked up the prescription, or if the patient was also obtaining prescriptions from other doctors. Additionally, the evidence included the defendant-physician’s altering of medical records in response to an investigation request from the New York Health Department’s Office of Professional Medical Conduct.
At trial, the prosecution provided the jury with expert testimony that included an explanation of the “synergistic respiratory depression” effect of opioids and Xanax when taken together and the highly addictive nature of Xanax when taken in combination with opioids. The expert opined that addicts sometimes request the medications together in order to enhance their narcotic highs and that the combination greatly increased the risk of a fatal overdose. The expert for the prosecution also testified that, with respect to the first patient overdose fatality, the combination of the prescription medications created a “very high” risk that included overdosing due to the misuse of the prescribed medication and dying from respiratory death. With respect to the second patient’s death, the expert testified that there was a “high probability of overdose and death” even if the patient took the medications exactly as prescribed by the defendant-physician.
THE MAJORITY’S DECISION
The Court held that charges of manslaughter in the second degree against the defendant-physician were permissible based on the patient’s abuse of the medications prescribed by the defendant-physician. The Court noted that to convict the defendant-physician of second-degree manslaughter, the prosecution was only required to prove beyond a reasonable doubt that the physician recklessly caused the death of his patients; that there be a substantial and unjustifiable risk that death would occur; that the physician engaged in some blameworthy conduct contributing to that risk; and that the physician’s conduct amounted to a ‘gross deviation’ from how a reasonable person would act. The conduct must be “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong.” People v. Li, 2019 WL 6312500*3.
The Court noted that the prosecution did not present any evidence that the defendant-physician was directly informed that his deceased patients were addicts or had previously overdosed on medications he prescribed (as he was with respect to some of his surviving patients based on the testimony elicited at trial). Nevertheless, with respect to the element of “recklessness,” the Court concluded that in viewing the evidence in the light most favorable to the prosecution, and giving the prosecution the benefit of all reasonable and permissible inferences, that a rational jury could have found that the defendant-physician was aware of and consciously disregarded a substantial and unjustifiable risk that his patients would take more drugs than prescribed and would die by overdose; that given the defendant-physician’s position as their medical doctor, his conduct constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation; and, as such, the evidence was sufficient to support the jury’s finding that the defendant-physician acted “recklessly.”
With respect to the element of “causation,” the Court, relying on case law, stated that a defendant’s conduct constitutes a sufficiently direct cause of death if the prosecution proves that (1) the defendant’s actions were an actual contributory cause of the death in the sense that they forged a link in the chain of causes which actually brought about the death; and (2) that the fatal result was foreseeable. The defendant’s actions need not be the sole cause of death nor need the defendant to commit the final, fatal act to be culpable for causing death. People v. Li, 2019 WL 6312500*6.
The Court further noted that the prosecution did not prove that that all of the drugs detected in the decedents’ systems at the time of their deaths came from prescriptions prescribed by the defendant-physician. Nevertheless, the Court, relying on the fact that some of the medications prescribed by the defendant-physician were found with the patients when their bodies were discovered, and citing to testimony concerning the toxicology results from the patients’ death, concluded, in each instance, that there is a valid line of reasoning and permissible inferences from which a jury could conclude that the defendant-physician’s conduct was an actual contributory cause of his patients’ deaths.
The Court found without merit the defendant-physician’s contention that his patients’ ingestion of the prescribed drugs in an amount greater than he prescribed was either an intervening cause or unforeseeable. Responding to these contentions, the Court stated that the fact that the patients, “…took substances prescribed for them in a greater dosage than prescribed is neither an intervening, independent agency nor unforeseeable….[A] rational juror could conclude that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk that [his patients] would take the medications he prescribed at a higher dosage than prescribed in order to attain a narcotic high rather than for legitimate pain management, and that they would die as a result.” People v. Li, 2019 WL 6312500*6.
The sole dissenting Justice, Wilson J., took issue with the majority’s finding of “causation” with respect to the two deceased patients of the defendant-physician. Judge Wilson describes the net result of the majority’s holding: “a reckless doctor is criminally liable for all deaths of patients under his or her care where drugs prescribed by (or errors made by) the doctor contributed to a patient’s death, irrespective of whether the doctor knew or should have known that the deceased patient would abuse the prescription medicine and would die as a result of the abuse (or error).” People v. Li, 2019 WL 6312500*8. Judge Wilson further stated:
The majority has extended homicide liability to physicians by blurring recklessness into causation: if a doctor is generally reckless in prescribing drugs, it is foreseeable that some patient may die; if it is foreseeable that some patient may die, causation is established when any patient dies from an overdose of the prescribed drug(s). In applying a standard under which doctors can be found guilty of manslaughter if they maintain reckless prescription practices and a patient takes an overdose, the majority creates a novel and unwelcome extension of criminal liability for physicians.
People v. Li, 2019 WL 6312500*13.
All healthcare practitioners should take heed in prescribing opioids and other controlled substances to patients. In holding a physician guilty of manslaughter based on a patient’s fatal overdose of medications, without evidence that the physician was either directly informed that his deceased patients were addicts or had previously overdosed, and without limiting such holding to instances where the physician is guilty of such flagrant and deplorable conduct as exhibited by the defendant-physician in People v. Li, leaves the question open as to just where future court decisions (or the state legislature) will draw the line between negligent conduct and a criminal charge of homicide.
In order to minimize the risk involved, each practitioner should develop and implement a thorough, comprehensive and vigorous compliance plan and establish protocols, to be faithfully observed in connection with the treatment of each and every patient and the practitioner’s prescribing of opioids and other controlled substances.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, formulating compliance plans, responding to OPMC inquiries and investigations, bankruptcy and creditors’ rights, and commercial real estate transactions.
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 See, “What Physicians Need to Know About Prescribing Opioid Medications” (July 2018) and “Department of Health Prescribes Additional Opioid Treatment Guidelines” (March 2019), each available on the Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C. Website.