By Jessica M. Seidman, Esq.Email the Author
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).
THE EVIDENCE
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 DISSENT:
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.
CONCLUSION
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.[1]
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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[1]
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.