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
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
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
"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
"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.