State v. Sturman, No. 49A02–1601–CR–8.

• Docket Nº: No. 49A02–1601–CR–8.
• Citation: 56 N.E.3d 1187
• Case Date: July 14, 2016
• Court: Court of Appeals of Indiana

56 N.E.3d 1187

STATE of Indiana, Appellant–Plaintiff
v.
John K. STURMAN, Appellee–Defendant.

No. 49A02–1601–CR–8.

Court of Appeals of Indiana.

July 14, 2016.

56 N.E.3d 1192

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Victoria L. Bailey, Indianapolis, IN, Attorneys for Appellee.

RILEY, Judge.

STATEMENT OF THE CASE

1] Appellant/Cross–Appellee–Plaintiff, the State of Indiana (State), appeals the trial court's dismissal of certain criminal charges filed against Appellee/Cross–Appellant–Defendant, John K. Sturman (Sturman). On cross-appeal, Sturman appeals the trial court's denial of his motion to dismiss additional criminal charges against him.

[2] We affirm in part, reverse in part, and remand.

ISSUES

[3] The State raises one issue on appeal, which we restate as the following two issues:

(1) Whether the trial court abused its discretion by dismissing three Counts of reckless homicide for failing to state an offense; and

(2) Whether the trial court abused its discretion by dismissing one Count of reckless homicide as being barred by the statute of limitations.

[4] Sturman raises two issues on cross-appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by denying his motion to dismiss three Counts of reckless homicide and fifteen Counts of issuing an invalid prescription on the basis that the Information failed to allege the crimes with sufficient certainty; and

(2) Whether the trial court abused its discretion by denying Sturman's motion to dismiss sixteen Counts of issuing an invalid prescription on the basis that a provision of the Indiana Legend Drug Act is unconstitutionally vague.

FACTS AND PROCEDURAL HISTORY

[5] Sturman is a physician and has been licensed to practice medicine in Indiana since 2008. He is board certified in neurology, with a subspecialty in pain management. In 2008, Sturman was hired at a pain management clinic that is operated by Indiana University Hospital in Indianapolis, Indiana. In July of 2012, Sturman left his employment at the pain management clinic after Indiana University Hospital suspended his medical privileges for, according to Sturman, “fail[ing] to complete medical charting/documentation of patient visits, a gross deviation from the recognized standard of care.” (Appellant's App. p. 31).

[6] In 2012, the Indiana Office of the Attorney General (OAG) commenced an investigation of Sturman after three separate complaints were filed against him with the Licensing Enforcement Section. Those complaints—two filed by former patients and one by an addictions counselor—alleged concerns that, between 2008

[56 N.E.3d 1193

and 2012, Sturman had “prescribed a large amount of narcotics to pain management patients.” (Appellant's App. p. 29). As part of its investigation, the OAG examined all of the controlled substance prescriptions that were prescribed by Sturman and filled in Indiana between 2009 and 2012. The list of patients for whom Sturman had prescribed controlled substances was provided to the Indiana State Department of Health's Vital Statistics Department, which provided the OAG with death information for any individuals on that list. The list revealed that several of Sturman's pain management patients had “died from drug intoxication, overdose, or related causes of death and had filled a prescription from ... Sturman within [thirty] days immediately prior to death.” (Appellant's App. p. 31). Of Sturman's now-deceased patients, three are relevant to this appeal: D.E.H., M.K.C., and T.A.V.

7] Between April 23, 2010 and July 29, 2010, Sturman issued ten prescriptions for controlled substances to D.E.H., including: four prescriptions for Methadone (Schedule II opioid); four prescriptions for Hydromorphone (i.e., Dilaudid ) (Schedule II opioid); and two prescriptions for Diazepam (i.e., Valium ) (Schedule IV benzodiazepine). On August 6, 2010, D.E.H. died. His autopsy indicated that the cause of death was “Pharmacologic Intoxication.” (Appellant's App. p. 33). Dr. Timothy King (Dr. King), “a physician with a medical specialty in [a]nesthesiology and a [s]ubspecialty in [p]ain [m]edicine,” reviewed D.E.H.'s medical records and concluded that Sturman had prescribed controlled substances to D.E.H. “without regard for patient safety, without a legitimate medical purpose, and outside the usual course of medical practice.” (Appellant's App. pp. 32, 35). Additionally, Dr. Michele Glinn (Dr. Glinn), a consultant in forensic toxicology, reviewed the summary of D.E.H.'s prescribed medications, the autopsy, and the toxicology findings. Dr. Glinn opined that D.E.H.'s “death could be considered the result of toxicity from prescribed medications” and that D.E.H. “was prescribed doses of methadone that were very high compared with a usual adult daily dose.” (Appellant's App. p. 36).

[8] Between July 25, 2011 and December 15, 2011, Sturman issued seventeen prescriptions for controlled substances to M.K.C., including: eight prescriptions for Hydromorphone (i.e., Dilaudid ) (Schedule II opioid); three prescriptions for Alprazolam (i.e., Xanax ) (Schedule IV benzodiazepine); three prescriptions for Morphine (i.e., Oramorph SR) (Schedule II opioid); two prescriptions for Dronabinol (Schedule III controlled substance); and one prescription for Fentanyl (Schedule II opioid). On December 20, 2011, M.K.C. died. Her autopsy revealed that her cause of death was “Polydrug Intoxication.” (Appellant's App. p. 37). After reviewing M.K.C.'s records, Dr. King concluded that Sturman had “prescribe[d] controlled substances without a legitimate medical purpose and outside the usual course of medical practice.” (Appellant's App. p. 38). Dr. Glinn opined that M.K.C.'s “death could be considered the result of toxicity from prescribed medications. The amount of Hydromorphone in the postmortem toxicology was noted to be toxic.” (Appellant's App. p. 36).

[9] Between April 16, 2009 and September 21, 2011, Sturman issued eighty-one prescriptions for controlled substances to T.A.V., including: one prescription for Methadone (Schedule II opioid); one prescription for Hydrocodone (i.e., Vicodon ES) (Schedule III opioid); twenty-four prescriptions for Lyrica (Schedule V controlled substance); twenty-nine prescriptions for Fentanyl (i.e., Duragesic ) (Schedule II opioid); and twenty-six prescriptions

[56 N.E.3d 1194

for Oxycodone (Schedule II opioid). On October 26, 2011, T.A.V. died. Her autopsy indicated that the cause of death was “Fentanyl Toxicity.” (Appellant's App. p. 42). Dr. King concluded that Sturman was “medically inappropriate in his use of controlled substances in the care of [T.A.V.]. He prescribe[d] opiates without a legitimate medical purpose, and outside the usual course of medical practice.” (Appellant's App. p. 44). Dr. Glinn opined that T.A.V.'s

death could be considered the result of toxicity from prescribed medications. The only drugs found in [T.A.V.] at her time of death were the drugs prescribed by [Sturman].... [T.A.V.] was prescribed doses of oxycodone that were very high compared with a usual adult daily dose and the amount of Fentanyl in the postmortem toxicology was noted to be toxic.

(Appellant's App. p. 44).

10] In addition to the three aforementioned deceased patients, Sturman also prescribed controlled substances to L.D.F., R.G.R., and Z.A.R., which raised concerns during the OAG's investigation. Between January 15, 2009 and August 23, 2010, Sturman issued seventy-seven prescriptions for controlled substances to L.D.F., including: thirty-three prescriptions for Methadone (i.e., Methadose ) (Schedule II opioid); twenty-seven prescriptions for Oxycodone (i.e., Percocet ) (Schedule II opioid); and seventeen prescriptions for Alprazolam (i.e., Xanax ) (Schedule IV benzodiazepine). Dr. King reviewed L.D.F.'s records and concluded that Sturman “prescribe[d] controlled substance medications without a legitimate medical purpose and outside the usual course of medical practice.” (Appellant's App. p. 49). Between March 9, 2012 and May 16, 2012, Sturman issued six prescriptions for Oxycodone (Schedule II opioid) to R.G.R. Again, Dr. King concluded that Sturman had “prescribe[d] opiates without establishment of a legitimate medical purpose and outside the usual course of medical practice.” (Appellant's App. p. 52). Lastly, between December 16, 2009 and October of 2011, Sturman issued approximately fifty prescriptions for controlled substances to Z.A.R., including: thirteen prescriptions for Fentanyl (Schedule II opioid); two prescriptions for Hydrocodone (i.e., Norco ) (Schedule III opioid); seven prescriptions for Morphine (i.e., Kadian ) (Schedule II opioid); fourteen prescriptions for Oxycodone (i.e., OxyContin ) (Schedule II opioid); five prescriptions for Diazepam (i.e., Valium ) (Schedule IV benzodiazepine); four prescriptions for Methadone (Schedule II opioid); and five prescriptions for Hydromorphone (i.e., Dilaudid, Exalgo) (Schedule II opioid). Dr. King concluded that “Sturman did not issue controlled substances for a legitimate medical purpose.... Medications were issued outside the usual course of medical practice and without medical foundation.” (Appellant's App. p. 54).

[11] On August 5, 2015, the State filed an Information,¹ charging Sturman with Counts 1–3, reckless homicide of, respectively, D.E.H.,...