(Take-home - 4 hours working time)
This is an open book, take-home exam. There is one question. Read the facts carefully. If you need additional facts, state what they are and why. Do not change the facts.
You may work on this exam for up to four consecutive hours once you have looked at it. In answering this question, you may consult any written materials (other than computerized or library research materials) you choose. Once you have picked up the exam, however, you are not to discuss criminal law in any way with any other person until one hour after you have handed in the completed test.
The rules governing the exam are contained on the attached rules sheet. Please be selective in your arguments. If counter-arguments are plausibly available, make them, but do not stretch to make arguments that are not fairly supportable on the law and the facts. Feel free to be creative where the facts and the law will support it.
Dave Docta was a licensed, practicing physician in Mokans City for many years. His patient care has always been excellent, but his bookkeeping and records management were never quite up to the standard of his medical care. Although he practiced in the city, he tried to run his office more in the nature of a small town practice. He got to know his patients well and kept the practice relatively small so as to avoid lots of paperwork and red tape. Docta employed Hal Helpa as his assistant, and Helpa was actively involved in patient care. As a licensed physician’s assistant, Helpa was permitted to prescribe a variety of drugs and was allowed to handle certain matters independently and others under the supervision of the doctor.
After having his office at the same location for nearly twenty years, Dave was notified that the building he practiced in was sold and he was forced to move. He found smaller quarters near his home and prepared to move. The move presented a challenge, since Dave was not terribly organized to start with, and he waited until near the last minute to get things packed and ready to go. He wanted to minimize the disruption for his patients, and he was very careful to insure that his patient records were accessible, but this occurred at the expense of doing a good job of organizing and packing his business records. Additionally, while Dave tried to make sure his patients were notified of the move, he kept forgetting to go to the Post Office and process a change of address notice. As a result, the Post Office was holding his mail.
Dave started receiving calls from some of the people to whom he paid monthly bills, inquiring why they hadn’t been paid. Each time, Dave explained about the move and said he’d take care of the matter shortly. Each time he thought to himself that he’d better go pick up the mail and arrange to have it delivered to the new address in the future, but each time something would come up and he’d put off doing so. He also had this nagging feeling, as he signed papers with his accountant that were due on October 1st, that something else was due around that time that was important, and he promised himself he’d go through the box of mail he’d brought from the old office and pick up the new mail just as soon as he got a chance. He finally went to the Post Office and was surprised how much mail he’d accumulated. As he took it to the office, he glanced at an envelope from the Board of Healing Arts that said "Important - Open Immediately." That reminded him that the thing that had been nagging him was his license renewal, and he promised himself that he would take care of it over the upcoming three day weekend.
The next day, Susan Sique, a patient he had treated for many years, arrived at his new office feeling quite ill. He properly diagnosed the cause of her illness and properly diagnosed toxicol, a powerful medication that he knew was a Class I drug, to treat it. Susan took the prescription and had it filled immediately. She began to take the drug, and, unfortunately, had a severe adverse allergic reaction to it. She was hospitalized as a result and may have suffered permanent damage. Although Dave’s prescription of toxicol was an appropriate medical response to her condition, and although he could not have done anything to predict or avoid her reaction to it, her family is very upset. As a result, they made a complaint to the Board of Healing Arts regarding Dave.
While Dave was treating Susan, Hal was meeting with Alexis Adicte, a regular patient of his. Alexis was a drug addict who was participating in a gradual withdrawal program Hal had developed for her. As a licensed physician’s assistant, Hal was permitted to prescribe and administer Class II and III regulated drugs. Hal knew that Alexis was addicted to libracaine, an addictive and very dangerous drug that he knew was classified as a Class I substance. He had a plan to get her off libracaine by administering provisan, a less dangerous and less addictive regulated drug that Hal believed to be classified as Class II, in diminishing doses. He had been working with Alexis for several weeks and his plan seemed to be working well.
Unfortunately, things went awry for Dave and Hal after Susan’s family made its complaint. It appears that, when the Board reviewed the complaint against Dave, they discovered that he had not renewed his medical license as required, and, as a result, his license had been suspended. The letter that said "Open Immediately" was the notice of suspension. Had Dave opened it promptly, he could have gotten reinstated within ten days fairly easily, but since he did not respond, his suspension became effective and requires significant paperwork to lift. Once the Board began looking into the matter with Susan, they also discovered that Hal was improperly prescribing provisan. His belief that it was a Class II drug was erroneous (he’d confused it with provisol, which is Class II), and it was really a Class I regulated drug which he was not legally authorized to prescribe.
Discuss the potential criminal liability of Dave and Hal under the following statutes only in MOKANS, a Common Law jurisdiction:
Mok. G.L. § 155.150
Whoever, not being a duly licensed physician, knowingly prescribes or administers to any person any regulated substance classified as Class I shall be guilty of a Class B felony.
Mok. G.L. § 155.185
Whoever, knowing another to be addicted to a Class I regulated substance, prescribes or administers such substance to him, is guilty of a Class C felony.
Discuss the potential criminal liability of Dave under the following statute only in MOKANSA, a Model Penal Code jurisdiction:
Mok. G.L. § 310.400
Whoever practices medicine without a license shall be guilty of a Class D misdemeanor.