-: SJC-12735, Commonwealth, Frank Stirlacci.
-: Mr. Shury, good morning.
-: Thank you Mr. Chief Justice and may please the court.
The Massachusetts legislature conditionally has exempted
medical practitioners from general
drug distribution liability.
That of course is a necessary result if modern medicine
is to be practiced in the Commonwealth.
The superior court's decision below however,
extended that limited exemption
to egregiously improper criminal conduct.
In interpreting exactly what the scope of that exemption is,
I suggest we look first to the statute at issue.
And we see my brief, I believe contributed to some confusion
as to the exact language of that statute.
In suggesting the word and, actually appears
in the statute, it does not.
But it does state positively what is required
in order for a prescription to be valid.
In doing so--
-: The statute says only that a prescription
for a controlled substance to acknowledge that
the issues for a legitimate medical purpose
by a practitioner acting in the usual courses
is a professional practice, right?
-: Correct, your honor.
-: Okay, that's all it says.
No and in there and there's no disjunctive.
-: There's no and, correct.
Judge: What are the elements that you have to prove?
-: So suggest that I have to approve that a prescription
was issued and then the question below is about
whether it has to be a practitioner or not,
Chatfield-Taylor suggested it did and then the two that
are relevant here because the practitioner issue
really isn't whether it was issued
for a legitimate medical purpose
or in the usual course of professional practice.
I apologize?
-: And, how bout trying and? What happens if you do and?
-: If we do and, it depends how it's phrased.
The Commonwealth has to prove both of those elements.
Judge: Has the Commonwealth done that here?
-: I suggest the Commonwealth has done that.
Judge: Okay, so what's the difference between that
or an and in this case?
Mr. Shury: Well, the difference in this case is--
-: Does the judge actually rule on this issue?
-: He actually did, and on this issue too, I think
my brief confuses things a little bit.
I think he states the standard correctly.
He does state that these are two elements
that either one is sufficient.
Of course we disagreed then
is the application of that standard.
-: Wouldn't it be that evidence would satisfy both
but they're separate requirements?
I think what we're asking you is
where are you getting the or?
You said some sort of 10th circuit case, is that it?
-: Sure, so the 10th circuit case which relies on Moore
which is a supreme court case, of course this is
technically persuasive authority, however I would suggest
in the circumstances of this case or the
Massachusetts statute almost exactly parallels
the federal regulation and came immediately after it,
that that persuasive authority should carry
a significant weight especially where the cases here
really haven't addressed that issue directly
in Massachusetts and have treated it somewhat differently
in different places.
I'd suggest that the most recent case to do the issue,
Brown 2010 case out of this court,
really on one page
suggested that legitimate medical purpose
was all that was required for a conviction
or lack-there-of, and then the next page suggests otherwise.
-: You're aware if any statute in the Commonwealth,
criminal statute where there's a list
of very simple sentences just read to you
where the Government inserts an or where there isn't one?
-: I am not aware of any other case with the parallel--
Judge: Probably for a reason, right?
-: Well I don't see any other case or statute
that positively lists what is required for someone
to be immune from criminal liability
which is what this statute does.
And the courts have said that repeatedly.
The statutes list not what needs to be approved for a crime,
but states positively what is needed
in order for a prescription to be valid.
-: Can I make this a little simpler for your argument,
I understand your argument
but it seems much simpler than that.
Aren't you saying that what the statute says is,
to come outside of the normal distribution laws
and have this exemption, the
practitioner has to prescribe
for a legitimate medical purpose
in the usual course of his professional practice.
And if it's for legitimate medical purpose
but not in the course of professional practice,
you don't get the exemption.
If it's a
usual course of professional practice
but not a legitimate medical purpose,
you don't get the exemption
so either one makes it not a prescription.
-: Who's burden of proof is that, then?
Who's burden of proof?
-: Well I believe it is the Commonwealth's burden of proof--
Judge: The Commonwealth's burden of proof,
not the defendant's burden of proof.
-: Correct, and I would suggest that that's where I agree,
your honor, that's one way of explaining it.
I don't think it can be phrased entirely in terms
of an exemption from criminal liability
because this court has said,
no, this isn't just an affirmative defense.
This is actually what would be charged,
the violation of this statute.
It wouldn't be an exemption to the other statutes--
-: In Commonwealth vs. Coleman's, I know it's an old case,
but that was just addressing whether it was
usual course of professional practice
and the case was allowed to go forward.
-: Right, and there are a couple of cases
that seemed to hint at that, there has been some
vagueness in that, your honor.
That is my position, not necessarily I'm asking the court
to overrule prior precedent, but to clarify
how those elements work together.
-: Perhaps I'm being recessively simple-minded,
but it is a crime to issue a prescription
that is not valid.
Correct? -: Correct.
-: And a prescription is not valid
unless it's issued by a practitioner,
it's issued for a legitimate medical purpose,
and it's issued in the usual course
of professional practice.
And so, unless all three of those are met,
it is an invalid prescription.
-: I believe that's the plain reading of the statute,
however, the only thing I would clarify
is the Chatfield-Taylor case suggests that actually,
that practitioner element, because of the purpose
of the statute, is actually something that might
need to be affirmatively proved here as well.
Judge: That sees weird because if I were to issue
a prescription in the usual course of professional practice
for a legit medical purpose, it's still not
a valid prescription and I would still think
I've committed a crime.
-: It seems weird to me too, your honor.
I believe the idea is that then,
if you're not a practitioner, the appropriate course
for the Commonwealth way to prosecute you under
the other drug statutes.
But I don't think we necessarily, and I should clarify,
that Chatfield-Taylor didn't,
that's the suggestion Chatfield-Taylor,
they include several footnotes which suggest
we're assuming this, that a practitioner is an element
the Commonwealth has to acquire,
we're not definitively saying that.
-: So what does it mean to be
in the usual course of his professional practice?
I know that was something that was
challenging for Judge Mason.
What do you say it means?
Or I guess more precisely, why is there evidence
that indicates that what this doctor did
was not in the usual course of his professional practice?
-: So the federal case in Nelson would suggest malpractice.
If it's medical malpractice according to the board,
then that would be outside the usual course of practice.
Cobran suggested a little bit differently, essentially
that the doctor has failed even
to act as a physician at this point.
The defendant here acted outside
the usual course of practice because he was prescribing
medications without having any involvement
in that decision whatsoever.
Simply authorizing a non-medically licensed person
to use pre-signed prescriptions to fill essentially
whatever individuals asked for who come into the practice.
-: Saying this was not a question of refills
or things like that, these were brand new prescriptions
for drugs these patients had never had?
-: Well no, I don't know that there's a distinction
that it's not a prescription if the patients
had it previously, I think the judge below relied on,
these were renewals? Judge: They were renewals.
-: They were renewals.
That's a question the grand juror asked
and the state trooper explained that they were renewals.
But a prescription is a prescription, and because you had it
in the past, doesn't entitle you to have it forever.
It doesn't entitle you to have it next time.
-: What if, let me ask you a different question
going in a different direction.
Suppose this was a medication that
had the patient not received the prescription
there would've been consequences to the patient
and the doctor is the normal doctor,
this doctor is the patients regular doctor.
Would the doctor not have been liable
in those circumstances, for not renewing
the prescription as a matter of course
even though he was wherever he was?
-: Well, so to be clear, the issue isn't necessarily
that he wasn't at the practice, but if it's an emergency
or it needs to be done, no one's saying that
if it needs to be done, the doctor can't do it.
The problem is he didn't here.
He didn't review any of these.
If the office manager--
-: Then he didn't use any medical judgment,
it was the office manager who used medical judgment?
-: He wasn't even aware of what the prescriptions
were going out for or who they were going to.
-: Isn't the problem when the judge below was looking at
the usual course of medical practice and whether it was
legitimate, he was, and you cited
the supreme court case for this proposition,
he was bothered by the lack of
expert testimony in this case.
And here, we have no guidance other than,
and you'll get to this, the phone conversations
which are pretty damning for the defendant.
But typically this issue is something that a right person
can't understand, right?
So an indictment would be based
on some type of
medical expert to tell us what is outside normal practice.
-: Typically, it would.
In this case, it goes to the egregiousness of the conduct
that I'd suggest doesn't have to be.
The grand juror, the average person
from their common knowledge has some concept
of what a prescription is.
They don't necessarily need to know--
-: If you took the phone conversations out of this
and you had someone who
issued a renewal
and didn't see the patient, you're saying that
that would satisfy probable cause?
-: No, I suggest that would need expert testimony.
Because I don't think it's within the average person's
or reasonable person's knowledge, what precise involvement
a doctor needs to have in order to issue a prescription.
But it is within the average person's knowledge
that it requires some level of expertise,
some level of involvement, whatever that may be
in issuing a prescription and you can't just
sign a blank pad of prescriptions
and say to a non-trained person, fill in the bodies of these
to whoever comes and asking for one.
-: Even when it's a renewal, sort of an ordinary renewal,
cause I don't know about you, if you're on
a regular prescription, the pharmacy calls you up
and says your prescription is expired,
and they can automatically do this, are they really
checking with the doctor each time?
I have no idea what needs to be done
in the usual course of medical practice
for renewals of standard prescription.
I just don't know how it works. I just know
a lot of it's automated these days.
-: Yeah, and following up on that question,
I think is if the doctor has authorized,
let's say three refills at the time
he issues the prescription, what then?
-: Sure, well I think three,
we're not dealing with what he said to the pharmacy,
of course if he issues, you can renew this
up to this number of times--
-: Wait, wait, wait.
Renewals and refills are different.
So let's be precise with the language.
So if the doctor says three refills,
that's gonna go through automatically.
-: Well, I guess
in Justice's hypothetical
that refills isn't ordered to the pharmacy.
And I think if it's authorized by the doctor to the pharmacy
or even otherwise, then we wouldn't
have enough evidence here.
That's not what happens, though.
It's not a statement of I've said this can be refilled
this number of times, he says anyone comes in
for a prescription, give it to them in effect,
is what he says.
So these are not refills going directly to a pharmacy.
-: Are they renewals?
-: I believe that's the word the state trooper
uses in describing--
-: And a renewal would be a prescription that has expired
and has no refills but needs to be renewed
by the doctor, correct?
-: Correct.
-: And so that's what we're dealing with here?
We're not dealing with the office manager decided to write
a prescription for something brand new
that the patient came up with?
-: Well, none of the prescriptions
that actually were written were for something brand new
according to that trooper's testimony.
He says that they've been treated for these before,
they've had these prescriptions before.
But factually that's not a surprise, that no one came in
off the street who hadn't been to this office before
and said to the office manager, can I please have
a prescription for this without an appointment
or without seeing anyone or giving a medical history, right?
You wouldn't expect that.
So the end result, I don't think saves the doctor here.
That the only people that actually get prescriptions
were people who had come before
and had gotten prescriptions from them.
Judge: The same prescriptions?
-: Correct. Judge: For the same drug?
-: Right. -: Was there any
evidence of where the grand jury
of the distinction between the renewal
of a controlled substance versus the renewal
of a typical cholesterol or blood pressure medication?
-: Distinction came through some of the conversations,
with the phone conversations where the doctor
actually lays out to the office manager,
because he was trying to say some of the
pre-signed prescription pads says if it's not narcotics,
then you can just sign your name/my name
to have these sent out.
So the inference that she needs to use
the actual prescriptions for the,
that all the ones with his actual signature on them
are the controlled substances.
-: And are all of the counts
that we're dealing with, controlled substance counts?
-: Correct. -: All right, thank you.
Mr. O'Donald?
-: Good morning, Mr. Chief Justice.
Good morning other Justices.
May I please the court, I'm A. J. O'Donald,
and I represent doctor Stirlacci in this matter.
I would suggest to the court that Justice Mason
was correct in his decision on this point.
He spent an enormous amount of time, as you can see,
from his decision to make sure he got this right.
And if you look, he endeavored very hard
to look for guidance from other areas.
He looked at the statute 94-C,
the controlled substances act, and if you look
in the beginning of that statute, the first section
is up to about 30.
They point to the commissioner of public health
and he looked for guidance for definitions for these
two terms before the commissioner didn't exist.
-: So he was struggling with what is legitimate
medical practice and he looked at
the board of registration in medicine guidelines, correct?
-: Yes, yes your honor, that's accurate.
-: And you're absolutely right, he put a lot of work
into this case, and a lot of thought.
The problem I see is that these phone conversations,
and I probably would agree with you
if we didn't have the phone conversations,
and we don't know what the normal practice is,
I don't think a right person does, but we have
the phone conversations where they're talking about
keeping the business afloat, there's a certain profit motive
and then there are instances where the office manager
tells the physician, this person came in
and he doesn't even ask him about any medical issues.
He just basically is worried about
keeping the money coming in.
Doesn't that provide evidence of at least probable cause?
-: No.
-: (unintelligible) to get over the rail?
-: I would say no.
In fact, even in your hypothetical--
-: It's not a hypothetical, it's what happened in here.
-: You're missing some facts because these are renewals
of existing patients who came in, and all of these patients,
they were renewing prescriptions.
These weren't patients coming in with new complaints
or patients who had some history of some illegal activity
or concerns of substance abuse.
-: Okay, so someone came in, they're getting Oxycontin
and they want a renewal and the physician
doesn't know whether their back still hurts, correct?
-: Well, I presume, your honor--
Judge: Does the physician know
whether their back still hurts?
-: If you're creating a hypothetical
if someone just comes in,
in that hypothetical I don't know the answer.
Judge: Someone is a patient of this physician, they were
on fentanyl or Oxycontin. -: Yes.
Judge: This is what happened in this case.
The physician is now in a Kentucky jail, correct?
-: Yes.
-: The prescription is lapsed,
they want a renewal of the Oxycontin or fentanyl
prescription and they've given it by the office manager.
A.J.: Yes.
-: Does the physician know whether or not
this person is still in pain?
-: I would suggest what you can infer
from the record evidence in this case
is if the patient is coming back in, seeking their renewal,
there's nothing to suggest that they were not
continuing to suffering whatever the condition was.
-: A person at the point of a renewal of a prescription
for the practitioner to decide whether a renewal
is appropriate or not?
-: Take that a step further, your honor.
If it's just a renewal and someone's coming in
in the ordinary course to ask to have
the prescription renewed, I don't think the physician
needs to see them each and every time
to make that determination.
And in fact, if you look at Judge Mason's decision,
if you look at the citations to the medical board,
there isn't that requirement.
These are simply renewals.
If someone was coming in with some new complaints
or some change in their condition,
that would change the circumstances.
-: I'm not suggesting that the practitioner
would have to see every patient, but they'd have to have
some information about whether to renew the prescription.
And keeping in mind, there's a difference between refills
because the doctor says three refills on this prescription,
and a renewal which is renewing the original prescription.
In order to renew it, you have to have some information
to decide whether to do that or not.
-: Well I think, your honor,
they did have medical charts, there were records.
In fact, those records were presented to the grand jury--
Judge: Did the doctor have access to medical charts?
-: While he was incarcerated, he didn't
physically have those, no, he wouldn't.
-: Did he consult the medical charts when he said go ahead,
let's keep the business afloat?
-: I don't think there's any record ever,
your honor, but--
-: In all those phone conversations with the office manager,
did he ask about any of the patients?
-: I don't think there's record evidence
to that point, your honor.
However, what I think what's important is there's also
no record evidence that there were people coming in
with complaints that weren't substantiated.
-: But isn't this going back to Justice Bud's point,
isn't this particularly of concern
when you're dealing with opiates?
I mean everyone is just, for good reasons, so focused
on making sure that there really is a need
for the renewal because of the tragedy
involved with addiction.
And so it's not just renewals,
it's more pronounced here because of the type of drug,
you gotta be really incredibly careful
when you're dealing with a renewal of an opiate.
-: Would you remind me what the counts here are for,
what kind of substances we're talking about,
which controlled substances we're talking about?
-: You can answer Justice Lowry first,
and then get on with Justice Link, so go ahead.
-: Same question, basically.
-: Okay, just to follow up on that point,
the concerns of Oxycontin I think, is probably
the question we both have, but the issue is I think,
that if there's some concern with that
and how that should be managed, I think that
perhaps belongs with the legislature
or even with the medical board.
And the medical board, as we've seen from
Justice Mason's decision, is silent on that.
These are renewals, these aren't new prescriptions,
these aren't new patients that are walking into the practice
and just getting a prescription.
These are existing patients who, from the record
as we've seen, have been examined by the doctor,
they've maintained these records,
there's no indication that any of these patients
have any history of substance abuse,
there is no indication that any of these patients
have any drug addictions.
That was presented to the grand jury
so I certainly understand your concern given our climate,
it's unfortunate what's happened.
But not withstanding, there's nothing to substantiate
some concern that if you look at the case law
the Commonwealth mentioned where there's this
egregious conduct, this record is devoid of that.
-: But it's also, sorry, did Justice Link
get her question answered?
-: Yeah, I just didn't remember what the--
-: You we're asking which particular substances--
-: Yeah.
-: There were various controlled substances, your honor,
and I think one of the mot important ones--
Judge: Okay, that was my question.
It wasn't just Codeine or something like that?
-: Yes.
-: (mumbling) No, go ahead.
-: What I hear you telling us essentially,
is although we are saying isn't there some requirement
for some individualized medical judgment to be made
before a renewal is done of a drug like fentanyl
or oxycodone, you're telling us,
well maybe in a better world that's right,
but we can't say that that's in the usual course
of professional practice because there is
nothing or nowhere in the record of the grand jury
that speaks to that?
Is that what you're saying?
-: That's what I'm saying, if these we're renewals
of existing patients where there are medical charts for,
your honor, that had been evaluated
for what their conditions were, these were patients
that were interviewed to see if there was any
substance abuse issues given these particular medications
that they were prescribed, and the record is devoid
of any evidence that there was evidence of
some substance abuse, or a patient coming in
if they have a 30 day prescription, coming in after ten days
or five days, or if there was some concern that this person
was selling these medications on the street.
There's none of that in this record.
-: Okay, but you agree that the record
supports a finding of probable cause,
that there was no individualized medical judgment
made with regard to the decision to renew any of these?
-: Well, I don't know if I would agree with that,
because the doctor had seen these patients,
they were existing patients, they weren't new patients.
So I think if you're suggesting, is he required each time
a patient comes in to renew their prescription,
is he required to do a reevaluation or reassessment,
I don't find any requirement for that.
-: Is there an argument that if he chose not to renew those,
he should be also exercising medical judgment?
A decision to not renew something
that if a patient is without it will cause side effects?
-: [A.J. Well, I-- -: That also requires
medical judgment, to not do something in that instance.
-: Well, if there was a patient coming in
expressing some concerns as you're explaining,
I think that would be an existing patient,
if it was in this case, and the patient came in
and expressed some concerns about their medication
or some change in their medical condition,
whether that's reported to the nurse practitioner or to--
-: I guess what I'm getting at, is if the doctor
is away for whatever reason, and the patient wants or needs
a renewal, the decision to renew or not renew,
whether it's an affirmative decision to renew
or a decision to not renew, both decisions
require medical judgment.
-: Yes, and the answer is yes, it does,
and I think that decision is made by the doctor
when he initially sees that patient
during his course of treatment of that patient,
these patients were seen over months,
over years in this particular case,
these weren't new patients and--
-: Why did he tell the office manager to grow a back bone?
-: Well, your honor, I think two things.
I can't specifically answer that phrase,
I think you can infer from this transcript,
this was a harrowing experience for Dr. Stirlacci.
He went to Kentucky to deal with
a legal matter and was incarcerated.
He wanted to keep his business going,
I know there was some mentions--
-: So he had the issue with the nurse practitioner
who wanted no part of this.
You had the office manager saying
I've got qualms about this, and you have
the doctor saying we need money, grow a backbone.
-: Well, understand something, your honor.
He certainly needed to keep his business going,
he had a responsibility to his employees.
He had to keep the business going.
He was away as sometimes doctors are, they may be away
for a whole canopy of reasons.
And in this specific case, in the narrow issue
of this case, are renewals.
These were not new prescriptions.
So he was explaining to his staff--
-: But aren't there different kinds of, I mean,
he doesn't give specific guidance here.
He's not breaking down the patients into categories
for the office manager.
We're dealing with Oxycontin and other substances.
We're also just dealing with the probable cause.
I understand at trial, these things may be
a totally different story.
But doesn't this cross over into probable cause
when you add up all the telephone conversations,
the lack of individualized review,
the sense that you've got different types of renewals,
and that he's just pulling pieces of paper
one after another?
Doesn't that get over the hump on probable cause?
-: No, I don't think so.
I think the reason being is the issues
that Judge Mason delineated when he looked at
these particular issues.
The seven factors in particular, and if you look
at the case law that's been decided by this court,
by the appeals court, if you juxtapose those two,
you'll see that they are very similar.
The factors as well as the decisions in those cases.
This case doesn't rise to a level
of that egregiousness in those cases.
-: So what do you say this required?
Do you think usual course of professional practice?
Do you think there has to be a medical expert
on the standard as it relates to renewals
to satisfy him sufficiently?
-: That's something I argued in the brief
and that's the problem with this case.
Because we're taking lawyers stepping into the medical field
and saying here's what we think should be done.
This required expert medical opinions,
and if you looked at some of the other cases,
there were experts involved.
So now lawyers are trying to decide
what the doctor should be doing
and how they should be operating their practices
and what's good practice.
Frankly, this is like a medical malpractice tribunal
and that's how it should've been handled
because we're taking about the district attorney's office
finding what they believe to be inappropriate
without any expert opinion, any opinions
from medical practitioners.
And I think that's what the real issue is,
and I argue the brief.
You needed someone from the medical field to opine on this,
not the opinions of the doctors.
And that's why Judge Mason worked so very hard
to look into the medical field.
He went to the board of medicine to see what they had,
because the government didn't give any guidance
to the grand jury as to how the medical field works,
what their ordinary course of practice is,
how they dispense meds, how renewals are done,
the record is devoid of that
and that's the gaping hole for this case.
So now we're here struggling over what do
we think the ordinary course is
and how things should be dispensed.
Whether it be Oxycontin or fentanyl,
but that required an expert medical opinion.
We needed some medical professional to testify
before the grand jury as opposed to just the state trooper.
And the state trooper in fact at one point,
was uncomfortable answering questions about
some of the patients medical backgrounds.
-: Wasn't that because of HIPA, I mean there are all kinds of
rules about not giving individualized
patients' personal data.
So I assume he's just being cautious there, right?
-: I don't know about that, and here's why.
Because they're already past HIPA in this case,
because they're already looking at prescriptions
and they're presenting some of that material
to the grand jury.
So I think we were past that.
The bottom line is they needed some expert to give them
guidance because otherwise, we're substituting what we think
might be right from what the medical field,
who specializes in this.
This is their profession, this is their science,
and we should be relying on them.
Judge: All right, thank you.
-: Thank you.
-: Mr. Anderson, we've not forgotten you.
On behalf of Ms. Miller.
-: Yes, good afternoon, and may I please the court,
my name is Roy Anderson, I represent Jessica Miller.
And because she's been indicted as a practitioner,
I submit that all the defenses raised by my brother
in defense of Dr. Stirlacci, apply equally to her.
Judge: Why doesn't the accessory statute
apply in this incidence?
-: The accessory statute is separate, judge,
I think in the federal system, they will indict
as an accessory or an aid or an abettor or whatever.
Here, there's no such language in the particular statute.
They limited the application to this statute
by the language of the statute.
-: Don't you have the strange situation
where if your client isn't under this statute,
which limits liability because it's done
in the medical field, she could be indicted
as just someone who aided and abetted
in the distribution of narcotics?
Right, under the normal statute, it would be worse for her.
-: Maybe, but that is not where we're looking at today.
We're looking at someone that was basically
indicted as a practitioner, and she is not.
Clearly not, there's no suggestion that she ever was.
And the statute defines
the conduct of a practitioner,
tells what the responsibilities are,
and what he shall issue.
-: But in the separate statute is the accessory statute
that says, anybody who's an accessory to any felony
shall be liable, blah blah blah.
-: But I submit, your honor, because this statute
does not refer to that, I think that because of
the exclusive nature of the statute that is limited--
-: Maybe that's your instance, this exclusive nature of it,
because no statue refers to accessory statute, right?
-: No, but they don't limit the application of the statute.
Usually, it's not a practitioner, it is a person,
and they could have expanded the length and breadth
of the application of the statute
by substituting person, but they didn't.
-: Any other statutes where that's the case
that you've found in your travels?
-: Only in the federal system, or they say aid and abettors
and all the statutes, that's the only thing I can think of
that would be comparable, and by not doing that,
I think that basically that's legislative intention.
In this case in particular, to address
the conduct of practitioners.
Judge: No other state statutes you found?
Roy: No, judge.
-: But she's covered by 33-B,
and 175-H2, right?
'Cause those ones are no person
or any person language, right?
-: Yes, but that is not what we're facing today, judge.
We're facing two indictments for charging her
under 19-A and under 94-33.
-: But she has not been charged under 33-B
for issuing a false prescription?
Roy: Yeah, she has.
-: Okay, so she has? -: Yes.
-: So how does she get out of that, because isn't she covered
by the falsification of a prescription?
-: The falsification was defined as forgery,
deception or subterfuge.
There was none of that in this case, there was no forgery,
there was no deception, there was no subterfuge.
-: It says forgery, fraud, deception or subterfuge
including but not limited to, the forgery
or falsification of a prescription.
So if she signs his name, I can't remember,
how is she signing--
-: She did not sign his name, he signed his name.
He signed the names, he gave her pre-instructions
as to who was to receive what prescriptions apparently,
and if they came in for their prescriptions,
she would add that to the prescription.
Judge: But on the body of the prescription?
-: To the body of the prescription.
She never signed his name.
-: Okay, so if she fills out the thing so that
it looks like he's filled out the whole thing,
does she sign her name anywhere?
Does her name appear anywhere?
-: No, it does not.
Judge: So the prescription is--
-: Not only the prescriptions her name does not appear,
she's acting under his direction, not as a practitioner,
but as a secretary essentially.
-: But wouldn't the pharmacist think that the entire script
is authored by the person who signed it?
-: I'm sure the pharmacist wouldn't give that any thought
because the prescription is signed by the doctor,
who fills it in is probably the secretary
in many of these types of situations.
This is a one man operation.
He has one employee who's called an office manager,
but essentially is a secretary who turns the lights on
in the morning, turns off at night,
takes phone calls and fills in documents.
-: But isn't it for the jury to decide all this
and whether or not she's committed this crime?
I hear you arguing that she hasn't.
-: Well I'm saying that there's no forgery
because she didn't sign anything.
Therefore, 94-33 does not apply.
I'm saying that 19-A does not apply
because she's not a practitioner.
-: I'm just trying to figure out why the 33-B doesn't apply,
because she has filled in the body of the thing,
and maybe, again, I don't know enough--
-: That's what secretaries do, judge.
-: That may be what they do, but I don't know enough
to know that's true, and whether there's probable cause
in this circumstance where, again with
all the background facts that we've got
before the grand jury, that think that
that's not what secretaries do.
Which is that secretaries don't fill out
that kind of information when the doctor has no clue
about the individual patient at all.
I just don't know that's so obvious.
Roy: But does that make it a forgery?
Judge: It doesn't have to be a forgery,
it could be a false document, right?
-: Fraud, deception or subterfuge.
-: Yes, but it's not.
It was the doctor's intention communicated to the secretary
for her to give his clients the renewal
of the drug that they had been prescribed
for who knows how long,
based upon his relationship with the client.
That is not a forgery or a misrepresentation.
That is the doctor's intention,
that is accurately applied to the prescription.
And he signed it, all she did was act as a secretary
according to his instructions, and not a practitioner.
-: But you agree that the fact that she was operating under
his direction does not protect her from being
an aider or an abettor, it's not as if we have a,
I was just taking orders, sir--
-: I think that would be a stretch,
to call that relationship aiding and abetting
as any secretary could be subject to attack on that
if she was the one that typed the letter,
and as secretaries do even, apply now
the electronic signature to the document.
-: If I asked my secretary to type out a bank robbery note,
that would be okay?
-: A bank robbery note?
I'm not quite sure that would be okay, judge.
But in reality, this is not that type of conduct.
This is standard office procedure.
And she is not a practitioner, and there was no forgery
and there was no deception because this was
the instruction she was given, to supply the drug
that had been prescribed on prior occasions,
subject renewal, to patients that needed it
while the doctor was out.
I think that in Judge Mason's decision
and other decisions,
they acknowledged the fact that there are times
when a solo practitioner's not gonna be in the office,
and that leaving a legitimate signature
with instructions to the secretary,
if someone comes in to receive the-
fill it in for them.
There's no sense in filling it in if they're not coming in
to look for the renewal at that time,
because it may be needed for someone else
with similar legitimate requests.
The other thing I was gonna mention is
the billing charges, submitting the false bills.
-: We really don't get an indication from the judge,
I was a little unclear as to which ones he threw out.
I think he said some of them are good,
some of them are bad, I guess, right?
-: I am looking at it from a different direction.
I am looking at it as these instructions
given to a secretary from a doctor that she works for
that knows the requirements.
The secretary obviously doesn't, 'cause she's asking him
on the record, on the phone call, what should I do?
How do I handle this? And he tells her.
I submit that's a secretarial employer relationship.
And the secretary is not responsible in terms of
-: For all of them as opposed to just--
-: For all of them, correct.
That's my feeling on that.
I had a little trouble figuring out which ones were.
I was kinda hoping you would ask that.
Judge: Thank you, and we'll take our morning breaks.