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Prosecution of doctor in overdose cases worries physicians

When prosecutors earlier this year filed murder charges against a physician for prescribing to patients who overdosed, Los Angeles County Dist. Atty. Steve Cooley said he was also sending a message to other "Dr. Feelgoods" who over-prescribe.

"Enough is enough," he said. "Doctors are not above the law."

But in the months since Rowland Heights physician Hsiu-Ying "Lisa" Tseng was charged, there has been a growing debate among medical professionals about whether prosecutors went too far by alleging murder.

Some physicians fear the crackdowns in Los Angeles and other parts of the country could have a chilling effect on the way doctors work and end up making patients suffer needlessly. They also worry authorities are holding doctors criminally liable for the behavior of their patients.

"The question is whether this is a criminal act or medical malpractice," said Dr. Marshall Morgan, chief of emergency medicine at UCLA Medical Center. "The concern that I have as a physician is that it's a slippery slope."

Dr. Kimberly Lovett, who teaches at the UC San Diego School of Medicine, said the Tseng case became a hot topic of conversation at a recent discussion about prescribing opiates among physicians in San Diego. Some doctors expressed fear the prosecution would make them think twice before prescribing pain medication even when it is necessary, Lovett said.

"The legal community is now sending a strong message to physicians: If you prescribe opiates to some ill-defined degree that we consider criminal, we're going to put you away for it and we're going to call you a murderer," said Lovett, who is also a member of the Institute of Health Law Studies at the California Western School of Law. "When physicians adapt to that message, patients will suffer.... You're now putting patients in a position of proving their innocence."

Lovett says she and other physicians do not condone the practices of doctors who deliberately prescribe powerful narcotic medications to addicts despite repeated warnings that their patients are misusing the drugs. But it can be difficult for doctors to discern when patients are lying about pain to get medication, she said.

The district attorney's office issued a statement in March after filing charges against Tseng, saying she and other doctors violated the law "by prescribing drugs for no legitimate medical purpose to otherwise healthy individuals for the sole purpose of the patient getting high. Those victims die while the doctor gets rich."

Still, prosecutions of doctors are rare, and murder charges rarer still, when their treatment of patients results in injury or death. The line between committing a crime and medical malpractice is unclear and depends largely on how reckless and egregious prosecutors consider the misconduct to be, said Tracy Green, a Los Angeles attorney, who has represented doctors.

While some doctors fret over the implications of trying Tseng for murder, the verdict among the relatives of her dead patients is already in. They hailed the charges as a bold — and overdue — move to hold doctors accountable for reckless prescribing. When a Los Angeles County Superior Court judge in June decided Tseng should stand trial on the murder charges, patients' relatives embraced outside the courtroom, celebrating the decision.

Joseph Rovero II, the father of one of Tseng's patients who died, said his family was thankful for the charges. "She committed a crime, and she has to answer for it," he said.

Drug-related deaths have doubled in the last decade, fueled by an increase in prescription narcotic overdoses, and now outnumber traffic fatalities, killing more than 37,000 people nationwide, according to a Times analysis of data from the U.S. Centers for Disease Control and Prevention.

Lawmakers in Florida, where an estimated seven people die of prescription drug overdoses every day, passed tough legislation last year that enhanced penalties for doctors who overprescribe or violate standards of care and made it easier to prosecute such physicians.

The state also banned most doctors from personally dispensing some of the most potent narcotic painkillers, such as oxycodone and methadone, and barred doctors from prescribing more than 72 hours worth of controlled substances unless the doctor documents why more pills are justified.

This year the Florida Medical Directors Assn., which supported the law, said some of its members had reported that patients in skilled nursing facilities had seen their care suffer because of the law.

"Patients are suffering because physicians are afraid to prescribe controlled substances," Dr. John Symeonides, the association's president, said in a statement.

In the last 18 months, more than 50 doctors in the state have been arrested since Florida created regional law enforcement strike teams to target physicians, clinics and healthcare facilities suspected of prescribing or dispensing unnecessary drugs, according to the state attorney general's office.

"I refer to them as drug dealers in white coats," Florida Atty. Gen. Pam Bondi said.

In addition, at least two Florida doctors are facing first-degree murder charges in connection with the overdose of patients.

For years, doctors suspected of overprescribing typically have been charged in federal court with violating the same drug-dealing statutes that apply to street-corner drug dealers. In such cases, prosecutors must prove that doctors acted so far outside the realm of legitimate medical care that their prescribing could be considered criminal activity, but they do not have to prove that physicians caused the death of patients.

In murder cases, prosecutors must go well beyond that and prove that doctors were consciously aware their prescriptions were likely to harm patients and that the drugs they prescribed were factors in the person's death, said David A. Kettel, a Los Angeles white-collar defense lawyer and former federal prosecutor.

Prosecutors say Tseng, 42, prescribed powerful drugs with little to no medical examination and knew her prescribing was dangerous. She has been charged with murder in connection with three patients who fatally overdosed. Prosecutors are using the same theory used to convict drunk drivers with prior convictions who have been warned by authorities of the dangers of drinking and driving but continue to do so.

Prosecutors have named nine other patients who died of overdoses while under Tseng's care. Tseng is not charged in those cases, but prosecutors contend she was aware of the deaths and continued to prescribe, showing a "conscious disregard for human life."

Tseng's attorneys argued that her patients' actions contributed to their deaths, and they died days after she prescribed to them. The doctor was not present when the patients filled their prescriptions, the attorneys said, nor did she advise them to misuse the medication. Her attorneys contended that Tseng wound up behind bars because she believed her patients' claims of pain.

"Doctors can't practice pain management if this is going to be the standard," Donald Marks, one of her attorneys, said during a court hearing.

Tseng is expected to be arraigned on the charges this month.

hailey.branson@latimes.com

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