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July 24, 2017

Distinct approaches to the opioid epidemic

Earlier this month, Kathleen Sebelius and Tommy Thompson, who served as U.S. Secretaries of Health and Human Services under the last two Presidents, penned this Hill commentary headlined "5 big ideas to halt America's opioid epidemic."  Here are the five big ideas as these HHS Secretaries presented them: "Expand access to treatment through insurance...; Rein in overprescription of opioid pain relievers...; Treat opioid addiction as a public health problem...; Stop drug overdose deaths with this solution...; Learn how to treat pain with minimal side effects."

But as the headline of this New York Times article reports, some prosecutors in the New York region have been pursuing a much different big idea: "New Tactic in War on Opioids: Charging Dealers in Overdose Deaths."  Here is an excerpt from the piece:

As heroin and its synthetic cousin, fentanyl, send more and more victims to the morgue, prosecutors are leaping into largely uncharted legal terrain, as they tried in the 1970s, to fight the scourge. The second-degree manslaughter and criminally negligent homicide charges filed against Mr. Cummings follow similar strategies used recently by prosecutors in upstate New York and on Long Island. They also mirror a case brought three years ago by the city’s special narcotics prosecutor, Bridget G. Brennan, against a pain management doctor, Stan Xuhui Li, who was sentenced to more than 10 years in prison.

Convicting a physician of recklessly causing the death of his patients is a leap beyond proving a drug dealer did the same to a customer, but they reflect the same approach: prosecutors mixing current laws with new investigative tools to fight back against the rising tide of opioid-related deaths. The Richmond County district attorney, Michael E. McMahon, has applied such tactics in more than 240 overdose cases....

Around the city, a more common path for such cases has been through federal courts. Prosecutors in the Southern District of New York have brought 13 cases over the last four years charging people with “distribution of drugs causing death,” a statute that carries a 20-year minimum sentence. A bill in Albany, dubbed Laree’s Law, to create a homicide charge in state cases, has languished in the Assembly. In all cases, the authorities said they sought the most punitive sanctions, which has led to a focus on tying narcotics rings to violence, particularly in gang takedowns.

July 24, 2017 at 05:36 PM | Permalink


I do not know the facts of the prosecution of the pain management doctor. Assume he deviated from professional standards of due care. He may be sued for malpractice. To be prosecuted,

1) he would have had to intentionally tried to kill the patient;

2) if the patient had any non-prescribed substance on toxicology evaluation, that would have ended the case;

3) if the patient overdosed by accident or by intention, that intentional act would have broken the chain of causation to the death. I deride the lawyer idea of chain of causation, as so 1275 AD. However, that is how the law is;

4) lastly, say the doctor had been totally guilty, I would seek dismissal of the case on policy grounds. The prosecution would deter doctors from treating millions of pain patients. Such deterrence would be a crime against humanity, the agonizing and prolonged torture on a mass scale of millions of people. It would be a catastrophe for the economy, as millions of people in pain would have to stay home, and not go to work anymore.

Posted by: David Behar | Jul 24, 2017 7:23:25 PM

Yet more evidence that social liberals and social conservatives both love to beat the meat. They simply disagree on which part of the beaten body provides the most pleasure. Conservatives the skull, liberals somewhat lower.

Posted by: Daniel | Jul 24, 2017 7:30:29 PM

As unlikely as it may seem, I agree with Supremacy Claus. I am currently representing a client charged with Second Degree Murder due to a death caused by opioid overdose.

His crime? He and an adult drug addict texted each other and met at a bar. After a few drinks, they went to a house and shared alcohol and pills, Opana and Xanax. girls's blood alcohol content was above the legal limit.

The female, who was on probation for drug use, crushed a pill herself, put it on a dollar bill and snorted it. She overdosed and died.

Defendant was charged under NC law providing for Second Degree Murder for a death caused by "the unlawful distribution" of opium"

What does "distribution" mean? I think it means something other than two adults sharing drugs. I have filed a motion to dismiss due to vagueness.

(and yes, SC, last month the Judge approved funds for me to hire a toxicology expert)


Posted by: bruce cunningham | Jul 24, 2017 10:16:16 PM

Prosecute the execs at big Pharma for promoting the opiods; and the doctors who take their perks for over prescribing--hooking the patients and turning them into drug zombies.

Posted by: anon1 | Jul 24, 2017 10:27:09 PM

Bruce. Can you ask Doug for my email? Scan and send me your expert reports and the indictment. I will look at them for free.

When the defense goes to work to defend the innocent, I support that as an essential service to the rule of law. I want to see that happen 10 times more than today.

Did the addict have a doctor patient relationship, I will be asking you?

"Defendant was charged under NC law providing for Second Degree Murder for a death caused by "the unlawful distribution" of opium""

That means, that a used car saslesman could be charged for distributing a non-defective car from his lot, for a death caused by the car. A gun store owner could be charged with murder if an irresponsible parent allows a kid to hold it and kill his playmate.

The intentional act of the deceased was the proximate cause of the death. It broke the chain of causation.

Posted by: David Behar | Jul 24, 2017 11:19:12 PM

Anon1. Before you spout false left wing propaganda, let's break your knee. Let's offer you Tylenol. Then you may speak.

Surgeon at a party. Intravenous Tylenol after an operation is as effective as intravenous opiates in controlling post-surgical pain. (If we made IV Tylenol available, would the DEA classify Tylenol as a controlled substance? I am now in the beginning of a conflict with the DEA. Will keep you posted about the drama, even if in prison, but not if shot dead.)

Posted by: David Behar | Jul 24, 2017 11:25:15 PM

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