David H. Fitch
Ask An Attorney - The Opioid Crisis and Physician Liability
I am concerned about the continuing increase in opioid abuse by patients over the last several years. I work hard to counsel and treat these patients. What risks are there to my practice if a patient overdoses while I am treating them?
In response to the public health crisis related to the misuse, abuse, and risk of addiction to opioid-based pain killers, the New York State Department of Health mandated accredited continuing medical education (CME) for all prescribers in 2017. In addition, the Center for Disease Control and Prevention issued opioid-treatment guidelines for health care professionals and patients. Under New York State’s “I-STOP” law, prescribers are required to review the state’s Prescription Monitoring Program Registry within 24 hours of issuing a prescription for a controlled substance.
A physician’s failure to complete this CME and follow required guidelines can lead to discipline from the New York State Office of Professional Medical Conduct. Recently, the New York State Court of Appeals held that if misconduct by a physician prescribing opioids results in a patient’s death, the physician can be held criminally liable.
At the end of November 2019, the state’s highest court upheld the manslaughter convictions of a physician after two of his patients died from medications he prescribed. In People v. Stan XuHui Li, the Court of Appeals outlined the history leading up to the conviction of Dr. Li, who was board-certified in anesthesiology and pain management. The doctor was “accused of running a ‘pill mill’ at his Queens pain management clinic.”
During the jury trial, the prosecution offered evidence that, over a three-year period, “the defendant prescribed medically unnecessary high doses of opioids, alprazolam, as other controlled substances as a first resort.” During that time, the doctor conducted “little or no” physical examination, failed to confirm the source of his patients’ pain, failed to order diagnostic tests to verify the existence of the pain, and failed to implement alternate treatment for pain management. The defendant “often prescribed heavy doses of whatever medication his patients requested to alleviate their complaints of pain.” Furthermore, Dr. Li “required payment in cash and charged extra for, among other things, higher doses of opioids.”
At trial, the prosecution presented several of Dr. Li’s former patients who testified that they were opioid addicts and used the prescribed drugs to get high and not for pain management. In fact, the defendant was informed by patients’ family members and other medical practitioners that “several of his patients were addicted to opioids and at the risk of dying from opioid abuse.” In 2009 and 2010, two of the doctor’s patients suffered respective fatal overdoses as the result of taking a combination of oxycodone and alprazolam. Both had recently filled prescriptions with the defendant for the drugs and pills from those prescriptions were with the patients when their bodies were found.
Dr. Li was convicted after trial of two counts of manslaughter in the second degree as well as numerous other crimes, including reckless endangerment, criminal sale of a prescription, scheme to defraud, grand larceny, falsifying business records, and offering a false instrument for filing. The doctor only appealed the manslaughter convictions arguing that, as a matter of law, he could not be convicted of a homicide offence for prescribing controlled substances that result in death by overdose and that the manslaughter counts were not supported by legally sufficient evidence.
The Court of Appeals dismissed the doctor’s claim that the law did not allow for the manslaughter convictions. The court noted that the homicide statutes in the state’s criminal penal code offer no evidence that the legislature intended to exclude the prosecution of a defendant who, with the required state of mind, “engages in conduct through the sale or provision of dangerous drugs that directly causes the death of a person.”
The court also disregarded the doctor’s claim that there was insufficient evidence for the manslaughter convictions by citing the prosecution’s expert physician witness who outlined the defendant’s practice in prescribing opioids. This included Dr. Li’s failure to consider non-opioid pain management treatment for his patients and his disregard of the “warning signs that his patients were abusing their medication and were addicted to opioids, such as early visits, obtaining prescriptions from other doctors, deterioration in physical appearance, and, in some cases, direct warnings from family members and hospitals that defendant’s patients had overdosed.” Furthermore, the defendant did not alter his practices in prescribing medication until 2011 after learning of the law enforcement investigation.
Even though Dr. Li was not informed directly that either patient who died was abusing their medication or had previously overdosed, the court found that the victims’ deaths could not be deemed unexpected considering the doctor’s practices. The court underscored the doctor’s failure to order any diagnostic testing of the victims and prescribing anti-anxiety medication to both patients without evidence that either were experiencing anxiety. The court found that, based on the Dr. Li’s reckless prescription practices, a reasonable juror could conclude “that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk” that both victim patients would take more drugs than prescribed and thereby could suffer fatal overdoses.
As opioid-related overdoses and abuse have increased in New York State in recent years, prescribers of controlled substances must be aware of and follow the legal requirements in order to keep their patients safe. Therefore, when prescribing opioids, it is essential for care providers to conduct a physical exam and obtain a thorough history from the patient, order the appropriate diagnostic testing to identify the existence and source of the patient’s pain, implement alternate treatment for pain management when indicated, and only prescribe the amount and dosage of medication that is supported by the provider’s exam and testing of the patient. As the Court of Appeals decision in Dr. Li’s case makes clear, a prescribing physician’s failure to do so may result in criminal liability.
If you have any questions regarding the issues discussed above or if you have any other Health Care Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or David Fitch, the author of this piece, here or at (585) 258-2840.
 34 NY3d 357 (2019)