People v. Anderson

• Citation: 105 Cal.Rptr. 664,29 Cal.App.3d 551
• Decision Date: 21 December 1972
• Docket Number: Cr. 10014
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gordon H. ANDERSON, M.D., Defendant and Appellant.

Page 664

105 Cal.Rptr. 664

29 Cal.App.3d 551

PEOPLE of the State of California, Plaintiff and Respondent, v. Gordon H. ANDERSON, M.D., Defendant and Appellant.

Cr. 10014.

Court of Appeal, First District, Division 2, California.

Dec. 21, 1972.

Hearing Denied March 14, 1973.

Robert H. Ludlow, Jr., Ludlow & Thompson, Santa Cruz, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Robert R. Granucci, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant, G. H. Anderson, M.D., appeals ¹ from a judgment and order granting probation ² entered after a jury found him guilty, as charged, of six counts of improperly issuing prescriptions to narcotic addicts, in violation of Health and Safety Code section 11162.5.

Defendant raises a question of first impression as to whether the last sentence of Health and Safety Code section 11162.5 is unconstitutionally vague, as well as additional contentions concerning Health and Safety Code section 11391, the instructions to the jury, and the sufficiency of the evidence.

Viewing the record most strongly in favor of the judgment, as we must, the facts are as follows: Defendant, a practicing physician, issued orders purporting to be prescriptions for the narcotic Dolophine, a trade name for Methadone, to six ambulatory narcotic addicts: Jack Arbuckle and his wife Marilyn, Fred Veitenheimer and his wife Dolores, Fred Acosta, and Kenneth Walker. The Arbuckles, the Veitenheimers and Acosta lived in San Jose; Walker in Palo Alto. In February 1970, each came for the first time as a patient to defendant's office in Santa Cruz and indicated a heroin addiction, including the duration and cost of the habit, a fact that was duly entered on defendant's patient record cards, as noted below. ³ After stating a desire to 'clean up,' each was examined by defendant (the examination included a urine sample) and then given a written prescription for 10 mg. of Dolophine to be taken four times a day for four days. The prescriptions stated: 'Take as directed and immediately cut down and immediately report to a Drug Abuse Center as arranged.' Each of the six also signed a statement typed on defendant's stationery agreeing to go to the 'nearest Drug Abuse Center (as related to where I live) within 48 hours.'

None of the six was suffering from preliminary or acute withdrawal symptoms ⁴ or illness at the time of the afternoon visit to defendant. The record indicated that all but Acosta had pinpointed pupils. Jack Arbuckle had had a 'fix' that morning; his wife, the previous morning. Walker and Acosta had also used heroin shortly before seeing defendant.

The Arbuckles and Walker also received additional prescriptions for Tuinal. The Arbuckles and Walker testified that at the time of the examination, there were a number of other people in the room. Defendant gave them a lecture concerning addiction and indicated that all were to report to a drug abuse center, and that they could come to him only once. Walker and Mrs. Arbuckle indicated that one of the patients did not have $10 to pay for the prescription but was loaned the necessary amount by the nurse.

Sharon Piers testified that she and her fiance saw defendant on January 31, 1970, after taking LSD. She signed papers indicating that it was an emergency visit and obtained prescriptions for Methadone and Nembutal. Defendant told her and her fiance that he was taking a chance in helping them but if they signed the paper indicating their intention to go to a drug abuse center, it would be all right.

State Narcotics Agent Freitag, on February 10, 1970, went to defendant's office using the name Pollett. The receptionist asked him if he had a narcotics problem and he gave a positive answer indicating he used Didalid. He was not examined or a urine sample taken. When he asked defendant for more Didalid, defendant said he could not have it but he could have some codeine. He told defendant he had a cold but did not mention he had a headache as shown on defendant's medical record. He denied stating he was an addict but indicated his wife was. He never told anyone he had sniffed morphine.

Inspector Verbrugge stopped the Veitenheimers and Acosta outside defendant's office on the afternoon of February 13, 1970. He took their prescriptions and told them to report to the Santa Clara County Hospital for treatment, as all were residents of that county. Verbrugge indicated that it was illegal for a doctor to prescribe Dolophine for an ambulatory addict unless there was an emergency, such as a broken leg.

Mr. McCrae, a Santa Cruz pharmacist who filled the Dolophine orders issued to the Arbuckles and Walker, had never seen a prescription with the notation 'Report to the Drug Abuse Center as arranged.' E. J. Mantler, a state narcotics agent who specialized in physicians' prescriptions, concurred.

Mantler arrested defendant on February 13, 1970, and after giving the appropriate Miranda warnings, questioned defendant about 16 of 64 identical Dolophine prescriptions and as to the specific arrangements that had been made with a drug abuse center for the six patients here involved. Defendant replied that he had called the drug abuse center in San Jose several times but did not know to whom he talked; the San Jose center agreed to take the patients. When asked why the patients were coming to his office in Santa Cruz from as far away as Sacramento and San Jose, defendant said he did not know and had himself wondered about it. Defendant was worried as to why so many people with narcotics problems were coming to see him and was somewhat worried about what he was doing. He saw them and prescribed for them on an emergency basis as he felt they were sick.

In another conversation taped after his arrest, defendant also stated that he first began prescribing Dolophine in late October or November 1969 to maintain or hold addicts over until they reported to a drug abuse center. Again, he could not recall the names of the persons he had arrangements with at the San Jose center and had conducted no follow-ups as to whether the patients he so instructed had, in fact, reported. He was prescribing on an emergency basis and charging $8 for an ordinary office visit and $2 for a urine sample.

The prosecution's narcotics expert, Dr. Victor H. Vogel, in replying to a hypothetical question based on the circumstances of the six orders here involved, testified that a prescription of a narcotic was not proper under the circumstances and was not 'in the course of professional treatment.' Dolophine keeps an addict comfortable by maintaining use, Dr. Vogel was in severe disagreement with the state's experimental Methadone projects as they were only substituting addiction for one drug with another. However, Methadone, with its more gradual effect and less acute withdrawal symptoms, constituted appropriate treatment for addiction provided there was first substitution of Methadone for heroin and then a withdrawal from Methadone.

In Dr. Vogel's opinion, it was proper for a doctor to give an addict a prescription for one or two doses of Methadone if the addict was on his way to the hospital. The prescription, however, should just last long enough for the addict to get to the hospital, instead of the four days involved in each of the six orders here involved. The normal therapeutic dosage of Dolophine for pain relief is 5--10 mg. but addicts have a much higher tolerance, depending on body weight, and can tolerate many times the normal lethal dosage of 50--80 mg.

In Dr. Vogel's experitence, only a rare addict can 'clean up' on his own with the aid of a Methadone prescription outside an institution. Despite the fact that institutional programs have not been very successful, Dr. Vogel believed it was the only proper procedure. Narcotic addiction is a peculiar disease and Methadone treatment is not likely to be successful outside an institution. Accordingly, enforced detention for the treatment of narcotic addicts is appropriate. Narcotic addicts are sick because of their addiction to a particular chemical and because they are under the influence of an unnatural chemical, as distinct from insulin, which is a natural product.

When questioned about a statement in a textbook concerning the propriety of a doctor prescribing narcotics for an addict, Dr. Vogel replied that he believed the statement assumed that the patient was suffering from withdrawal symptoms. In reply to a question as to the proper medical procedure for an addict who was not exhibiting extreme withdrawal symptoms, Dr. Vogel indicated that it was very difficult to reply, as an addict was in a delicate balance between too much and too little; only if an addict is undergoing withdrawal symptoms are his normal functions, such as driving, impaired. In Dr. Vogel's opinion, all people on Methadone in the state programs were not functioning normally as they were in a state of dependence on Methadone. In his opinion, a prescription for Methadone is legal only as a part of overall withdrawal at the beginning of institutional treatment.

Dr. Frederick Meyers, the defense narcotics expert, in response to a hypothetical question based on the circumstances surrounding the six orders here involved, testified that defendant's action constituted sound medical treatment on an interim basis. He indicated that while an older minority of physicians felt that the administration of Methadone was wrong, the drug effectively blocked the effect of heroin and does not have its own narcotic effect after an individual has become stabilized. If a heroin addict who was accustomed to the sexual type of thrill received from the direct injection of heroin was given an oral drug, such as Dolophine, the customary pattern of use was destroyed. The addict would also not be...