People v. Schade, No. H009896

CourtCalifornia Court of Appeals
Writing for the CourtELIA; BAMATTRE-MANOUKIAN
Citation32 Cal.Rptr.2d 59,25 Cal.App.4th 1605
PartiesPreviously published at 25 Cal.App.4th 1605, 30 Cal.App.4th 1515 25 Cal.App.4th 1605, 30 Cal.App.4th 1515 The PEOPLE, Plaintiff and Respondent, v. Hugh I. SCHADE, Defendant and Appellant.
Docket NumberNo. H009896
Decision Date15 June 1994

Page 59

32 Cal.Rptr.2d 59
Previously published at 25 Cal.App.4th 1605, 30 Cal.App.4th 1515
25 Cal.App.4th 1605, 30 Cal.App.4th 1515
The PEOPLE, Plaintiff and Respondent,
v.
Hugh I. SCHADE, Defendant and Appellant.
No. H009896.
Court of Appeal, Sixth District, California.
June 15, 1994.
Rehearing Denied July 1, 1994.
Review Granted Sept. 15, 1994.
Review Dismissed and Cause Remanded to the Court of Appeal
May 11, 1995.
Certified for Partial Publication. *

Page 61

[25 Cal.App.4th 1519] Carlo Andreani, San Francisco (Under appointment by the Court of Appeal), for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman and Michael E. Banister, Deputy Attys. Gen., for respondent.

ELIA, Associate Justice.

Dr. Hugh Schade was charged with twenty-six counts of illegal prescription of a controlled substance. (Health & Saf.Code, § 11153.) 1 He was also charged with one count of involuntary manslaughter after one of his patients committed suicide. (Pen.Code, § 192, subd. (b).) After a jury trial, Schade was convicted of involuntary manslaughter and thirteen counts of prescription of a controlled substance.

On appeal, Schade argues the trial court erred in (1) failing to sua sponte instruct the jury on the definition of the word "addict"; (2) improperly instructing the jury under Health and Safety Code section 11153; (3) failing to give a unanimity instruction; and (4) failing to sua sponte instruct the jury that section 11153, subdivision (a)(2) was a specific intent offense. Schade also contends there was insufficient evidence that his conduct was the proximate cause of his patient's

Page 62

death, thereby requiring that the involuntary manslaughter conviction be reversed.

We conclude the trial court erred in failing to define the word "addict" for the jury. Schade's convictions for violating section 11153 must therefore be reversed. We affirm Schade's conviction for involuntary manslaughter.

Facts and Procedural Background

A. Background

The facts pertinent to the issues on appeal are summarized below.

Rhonda Sorenson was a diversion investigator for the Federal Drug Enforcement Administration (DEA). She monitored the purchase, maintenance, storage, distribution and sale of prescription drugs.

[25 Cal.App.4th 1520] Sorenson noticed that Schade (hereafter appellant) had purchased in 1985 a large quantity of drugs. Appellant purchased over 1,000 grams of Codeine and 40 grams of hydrocodone (also known as Vicodin or Anexia). In Sorenson's experience, these were unusually large quantities.

According to Sorenson, the average doctor in northern California purchased 12 grams of Codeine in 1985. Reports established that appellant was the number one purchaser of Codeine. The second largest purchaser of Codeine in 1987 was the medical facility of the Santa Rita County Jail.

Appellant purchased 43 grams of hydrocodone as compared to the national average of .64 grams. In 1987, appellant purchased 58,000 tablets of Tylenol with Codeine as compared to an average in 1986 of 2,217 tablets purchased by other doctors.

The DEA also monitored appellant's prescription practices. Records at pharmacies and state offices indicated that appellant was prescribing only Schedule II drugs, such as Percodan and Percocet, which are more addictive than Schedule III drugs.

Although appellant stored and dispensed drugs at his two medical offices, he only registered one of them with the DEA. He also stored drugs in his home. The DEA regulations require doctors to register any location where drugs are stored or dispensed. Sorenson had never encountered a doctor who stored drugs at home.

In 1987, the DEA obtained a warrant to conduct an audit of appellant. After the audits were completed, significant shortages were discovered. Although appellant claimed that he and his wife used Codeine regularly, such usage still did not account for all of the shortages.

Appellant provided Sorenson with health claim forms and patient records for some 47 patients. Sorenson turned these over to the State Medical Board for review.

At the request of the DEA, Gerald McClellan, Senior Special Investigator with the State Medical Board, conducted an investigation into appellant's medical practices. McClellan was qualified as an expert in the investigation of offenses involving prescription drugs.

After the DEA audits, McClellan prepared profiles of between 40 and 50 of appellant's patients. These patients appeared to be receiving frequent large prescriptions over a long period of time. In February 1988, McClellan [25 Cal.App.4th 1521] turned over most of the patient profiles to three independent medical experts for review. The experts were Dr. Frederick Meyers, Dr. Stanley Hanfling, and Dr. Steven Feinberg.

Dr. Frederick Meyers, Professor Emeritus of Pharmacology at the University of California, San Francisco, was one of the founders of the Haight Ashbury drug abuse clinic. Dr. Meyers was qualified as an expert witness in medicine, standards of practice, and physical and psychological effects of drug abuse.

Dr. Stanley Hanfling, a general practitioner in San Mateo for approximately 30 years, was qualified by the court as an expert medical witness.

Dr. Steven Feinberg, Director Of Rehabilitation at Mills Peninsula Hospital in San Mateo and Burlingame, was qualified as an expert witness in medicine, chronic pain and rehabilitation.

On July 20, 1988, a search warrant was executed. Forty-six original patient records were seized from appellant's offices in Los

Page 63

Gatos and San Jose. After a newspaper article described the search, several patients contacted McClellan on their own accord. One of the patients, Diana Cantore, was not named in the original warrant. Her records were obtained pursuant to a subsequent warrant executed in November 1988. All of the patients signed medical releases for their records.

On September 12, 1988, appellant was arrested. An amended information charged him with twenty-six counts of illegal prescription of a controlled substance. (Health & Saf.Code, § 11153.) He was also charged with one count of involuntary manslaughter after one of his patients committed suicide by overdosing on narcotics. (Pen.Code, § 192, subd. (b).)

B. Expert Witnesses

Dr. Meyers, Dr. Feinberg, and Dr. Hanfling were qualified as expert witnesses at trial. Other physicians qualified as experts included Dr. Kevin Olden. Olden was qualified as an expert in medicine, gastroenterology, psychiatry, and addiction to alcohol and drugs. Dr. Kenneth Peters was qualified by the court as an expert in headache. Dr. Jonathan Feinberg (no relation to Steven Feinberg) was qualified as an expert in alcohol and chemical dependency. Dr. Otto Neubuerger was qualified as an expert. He was a general practitioner and a member of a medical committee that produced a paper entitled "The Painful Dilemma." The article was based upon the notion that not everyone who takes narcotics develops a tolerance [25 Cal.App.4th 1522] and becomes addicted. Dr. Harvey Rose, a family practitioner, was qualified by the court as an expert witness. Rose was a consultant to the committee that produced "The Painful Dilemma." Dr. Michael Margoles was qualified as an expert in orthopedics and chronic pain. Dr. Lorne Eltherington was qualified as an expert witness in the treatment of chronic, nonmalignant pain.

C. Prescription Practices

At trial, there was testimony about twenty-six patients who had allegedly received illegal prescriptions from appellant. Of the twenty-six patients, more than half were receiving large amounts of Codeine from appellant. Approximately one-fourth of the patients were receiving large amounts of Percodan or Percocet, and another quarter were receiving large amounts of Valium or Darvon.

Although appellant's patients had a variety of ailments, a frequent complaint was chronic or migraine headaches. Other ailments included neck pain, back pain, sinusitis, cough, and knee pain. None of appellant's patients had cancer, or any other terminal illness.

Although we need not detail the testimony regarding each patient, for illustrative purposes we shall summarize the testimony relating to one of appellant's patients, Gary Gustafson (count two).

Gary Gustafson was appellant's patient from February 1982 through June 1987. During 1986, Gustafson received 4,900 Tylenol/Codeine No. 4 pills (60 mg.) from appellant. Gustafson was treated with Codeine and Elavil for chronic headache and depression. He often received 100 Codeine pills at a time and was instructed to take 12-14 pills a day. During the five-year period in which appellant treated Gustafson, Gustafson's complaints included headache, cold, bronchitis, pneumonitis, neck pain, hemorrhoids, sinusitis, allergic rhinitis, hypertension, hernia, situational anxiety, dizziness, chest pain, puncture wound, laceration, fractured rib, allergies and depression.

Dr. J. Feinberg testified that appellant's dispensing pattern during that five-year period was grossly excessive. Appellant was aware that Gustafson was addicted to codeine. Feinberg stated that appellant's medical practice was grossly negligent, served no legitimate medical purpose, and put the patient at risk. According to Feinberg, there was no indication that appellant considered diagnostic possibilities, that he took medical or family histories, that he ordered x-rays or lab work, or that he referred the patient to other doctors.

Dr. Rose testified that Gustafson suffered from chronic headaches. He stated that appellant was appropriately treating Gustafson for the legitimate [25 Cal.App.4th 1523] medical purpose of headaches. Rose stated that Gustafson was dependent on the medication to function but

Page 64

was not addicted because the medication was not causing him harm. Dr. Rose had patients taking as much medication. Dr. Rose testified that persons such as Gustafson were...

To continue reading

Request your trial
1 practice notes
  • People v. Schade, No. S040968
    • United States
    • United States State Supreme Court (California)
    • September 15, 1994
    ...Respondent v. Hugh I. SCHADE, Appellant. No. S040968. Supreme Court of California, In Bank. Sept. 15, 1994. Prior report: Cal.App., 32 Cal.Rptr.2d 59. Petitions for review Submission of additional briefing, otherwise required by rule 29.3, Cal.Rules of Court, is deferred pending further ord......
1 cases
  • People v. Schade, No. S040968
    • United States
    • United States State Supreme Court (California)
    • September 15, 1994
    ...Respondent v. Hugh I. SCHADE, Appellant. No. S040968. Supreme Court of California, In Bank. Sept. 15, 1994. Prior report: Cal.App., 32 Cal.Rptr.2d 59. Petitions for review Submission of additional briefing, otherwise required by rule 29.3, Cal.Rules of Court, is deferred pending further ord......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT