Criminal Law

U.S. case could alter Canadian opioid crisis strategy: Dale

By AdvocateDaily.com Staff

The manslaughter conviction of a U.S. doctor resulting from his prescribing of opioids could be the “catalyst” in the creation of a special narcotics prosecutors office in Canada, Toronto criminal lawyer Laurelly Dale tells The Lawyer’s Daily.

Dale, principal of Dale Legal Firm, tells the online magazine that a New York court recently heard the appeal of a Trenton, N.J., doctor convicted of two counts of manslaughter in the overdose deaths of two patients, along with another 196 opioid-related charges.

“Fentanyl is like the embarrassing drunken text sent at 2 a.m. to your ex. It’s out there, and there’s no pulling it back,” she tells The Lawyer's Daily. “All we can do is clean up the damage and stop the bleeding. Our first response didn’t work. (The New Jersey) appeal could impact the next Canadian response.”

Dale says North America is at the “SOS stage” of the fentanyl and opioid crisis. Following a predictable first response of blaming addicts and “throwing them in jail for as long as possible,” attention has turned to doctors, she says.

A California doctor was the first to be convicted in that state for her “egregious” prescribing practices and sentenced to 30 years in prison for the second-degree murders of three patients, the San Gabriel Daily Tribune reports.

An Oklahoma doctor was charged with five counts of second-degree murder on allegations of similar practices. And these stories are becoming more frequent, with the New Jersey case being one of the most recent, Dale says.

She tells The Lawyer’s Daily that fentanyl was synthesized in the 1960s “as a safer alternative to morphine,” with its use limited to cardiac anesthesia.

However, when a decision was made to make the opioid available to the public, general practitioners started prescribing it to combat chronic pain.

“It slowly trickled into the streets, complementing many existing opioid addictions with a reduced price tag and more powerful effects. Currently, there is an explosion of the lethal drug in both the U.S. and Canada. We are well aware of the numbers of growing addicts, overdoses and deaths,” Dale tells the legal news magazine.

The response to the crisis in the U.S. has included the creation of the Office of the Special Narcotics Prosecutor in New York, which handles large-scale drug cases, including the New Jersey proceeding, she says, noting that the same prosecutorial response in Canada is unlikely — for now.

“Both nations face the same crisis, yet our differences limit the Canadian response,” Dale says.

She explains private versus public health-care systems “produce differing monetary incentives for prescribing fentanyl.”

“In addition to his two manslaughter charges, (the Trenton doctor) was convicted of 196 other charges. Most were related to the ‘pill mill’ he ran once a week out of his shared clinic. At a base of $100 per visit — paid in cash, he would see around 90 patients a day. He was making, on average, US$9,000 per day. (He) would see patients once a week, always over a weekend, as there would be no other doctors working at the clinic. In a mere three years, (he) had written 21,000 prescriptions for opioids,” Dale says. “In Canada, we don’t have the same cash-only payment structure.

A second key difference is the resources devoted to the prosecution, she says, adding that a shift could be coming in this country.

The prosecution of doctors are difficult cases to make, Dale tells The Lawyer’s Daily.

That’s why the U.S. created a special office, she says, to convince a jury beyond a reasonable doubt that the amounts prescribed were not within the therapeutic range and that the prescribing doctor knew the patient would overdose.

“Why should you care about the (Trenton) appeal if Canada won’t prosecute doctors? Because it will shift our national response to the crisis. We are desperate. Canada, like many other counties, looks to the U.S. for guidance on what works,” Dale says.

“The threat of prosecution could have a deterrent effect on doctors in Canada. If his appeal is dismissed and the conviction upheld, his case could be the catalyst that funds a Canadian Office of the Special Narcotics Prosecutor. It could also impact coverage of the drug. Canadian insurance companies could amend, even eliminate, its coverage.”

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