August 28, 2004

Judge to consider Burnside drug case

By Katharhynn Heidelberg

Journal Staff Writer

Does a statutory exemption spare physicians from prosecution when they prescribe drugs during the course of ordinary medical practice?

Visiting District Judge David Dickinson said Friday such could be a viable argument for sparing Dr. Allan Burnside felony drug distribution charges. However, Dickinson made no ruling as to whether the case against Burnside could be dismissed on those grounds. Instead, he will take the matter under advisement and issue a ruling by Sept. 3.

He also cautioned the defense against presenting philosophical arguments as evidence when the latter suggested the case was that of "the power of the gun versus the art of medicine."

"This is a case that won't be tried in the press. This is a case that will be tried in a court of law," Dickinson said.

Burnside, 51, previously pleaded not guilty to the felony-4 charge of distribution of a schedule III controlled substance; the felony-5 charges of false or forged order and making a false statement on a prescription, as well as to the misdemeanor-1 charge of second-degree forgery.

He was arrested in February, after he allegedly prescribed Lortab to a 22nd Judicial District Drug Task Force employee who presented herself as a patient. The employee, acting as a confidential informant, was wearing a recording device.

Lortab, a synthetic narcotic, is to be prescribed only for pain. The informant mentioned a desire to "feel good" but never specified that she had pain. Burnside allegedly gave her the script anyway, stating that he had to list pain as the reason.

Issuing the prescription was not as damning as painted by the prosecution, attorney Cameron Secrist argued. Colorado law prohibits the knowing distribution of controlled substances "except as authorized" and Burnside's authority was implied by his medical license. "What we have here is law enforcement trying to second-guess medical practice," he said.

Pain, Secrist added, has a broad definition in the medical world and Burnside had conducted appropriate questioning and testing to diagnose the woman's purported complaint.

A definition Secrist provided the court from an online medical dictionary defines pain as "lack of well-being or ... mental uneasiness...may be generalized."

The informant had told Burnside she'd previously received Lortab from a friend, which made her "feel wonderful." Burnside cautioned her that sharing prescription medications was illegal, but, said Secrist, made the determination, based on the woman's statements, that Lortab would help. He diagnosed "general malaise."

"This (prescribing medicine) is not a criminal act," Secrist said. "This is what doctors do. They prescribe. To be held criminally responsible for this has an absolutely chilling effect."

Burnside had not falsely used his medical license to procure controlled substances to be sold for illicit gain, as other American doctors convicted of drug violations have, Secrist added.

District Attorney Joe Olt disagreed, maintaining Burnside had been appropriately charged with dispensing outside the bounds of his medical practice.

"He gave a narcotic to a patient who'd merely asked for it," Olt said.

Secrist also sought suppression of the tape recording, saying its creation had violated Burnside's rights of due process and expectation of privacy.

"I can think of no better expectation of privacy than at a doctor's office," Secrist said. Doctors, additionally, should not have to suspect the government of "surreptitious" eavesdropping activities, he said.

Olt successfully argued that privacy expectations applied to the patient, not the doctor, and the informant had consented to having her appointment recorded.

"I believe it's common for patients to talk to others about their treatment," Olt said. "There was no reasonable expectation of privacy (for a doctor)."

Dickinson agreed with that much and said the tape recording would be allowed into evidence.

The primary issue - whether Burnside had simply been doing his job as a physician and was therefore protected under statute, or was trying to circumvent the law - remained unresolved Friday.

Dickinson said there was no dispute that the accused was a licensed medical doctor, but he needed time to consider whether he could dismiss the case or if the argument should be presented to a jury.

Another motions hearing was set for Sept. 24, with trial tentatively scheduled for Nov. 1.