CHARGES AGAINST DOCTOR WEIGHED

As prosecutors consider whether to bring murder charges against Port St.
Lucie doctor Asuncion Luyao, legal experts say the case raises complex
medical questions:

Should doctors who over-prescribe dangerous drugs be punished like
street-corner dealers - guilty of a crime if patients die from the drugs
they sold? Or are the patients themselves to blame?

Luyao, 60, was arrested last week on prescription drug trafficking and
related charges. The state Department of Health also suspended her license,
citing medical examiner complaints that drugs prescribed by the doctor
"caused or contributed to" the deaths of 12 patients.

The State Attorney's Office has confirmed a homicide investigation is under
way in the patient deaths, and Luyao is being held in the St. Lucie County
Jail on $1.89 million bail.

At a hearing scheduled for Tuesday, Luyao's attorney, Richard Lubin, is
expected to argue that bail should be reduced. Lubin said Luyao has done
nothing illegal. He said he's disturbed by a growing pattern to "blame
doctors for the problems of their patients."

"I am a little bit steamed at the trend to go after doctors when their
patients deceive them and you blame the doctor," the West Palm Beach
attorney said. "That's like going after the bartender because the customer
consumed too much alcohol." Lubin also said it's unfair to prosecute a
doctor for "subjective behavior" like prescribing drugs.

"You can't criminalize subjective behavior," Lubin said. "A doctor uses
their good judgment. A doctor that is a patient advocate believes that when
a patient tells you he or she is in pain, you should believe them." Legal
experts say that to bring homicide charges in patient deaths, prosecutors
must show intent: that the doctor knew the amount of drugs prescribed could
kill and went ahead anyway.

Joseph Little, a law professor at the University of Florida, said it is
extremely difficult to prove a doctor committed a crime when a patient
overdoses.

He said prosecutors not only have to prove that the doctor over-prescribed
medication, but must show the physician was "mindful of the specific facts
and knew the nature of the acts."

"The question is going to be how much were the prescriptions for and
whether or not the prescriptions were so beyond some line that the nature
of the wrongdoing can be inferred," Little said.

"It's a tough burden, especially in this situation where you have a medical
doctor prescribing drugs that are appropriate to be prescribed, but not in
this amount."

In investigating the patient deaths in the Luyao case, prosecutors likely
will consider evidence presented in the state Health Department order
suspending her medical license.

The 46-page order detailed patient histories in the deaths and concluded
that Luyao's actions demonstrated a "pattern" of over-prescribing drugs for
almost a year.

"She has repeatedly demonstrated a willingness to excessively and
inappropriately prescribe dangerous and addictive narcotic drugs - with
dire consequences to her patients," the Health Department said.

In deciding whether to bring homicide charges against Luyao, prosecutors
also will look at the evidence gathered in similar cases.

At least two other Florida physicians have been charged in the deaths of
patients who took prescribed drugs, including the painkiller OxyContin.

In a precedent-setting case, a Pensacola doctor became the first physician
in the country to be convicted of manslaughter for prescribing OxyContin.
Dr. James Graves was convicted in February in connection with the overdose
deaths of four patients and sentenced to 63 years in prison.

Dr. Denis Deonarine, of Jupiter, faces a first-degree murder charge for the
overdose death of Jupiter resident Michael Labzda. Deonarine, who has also
been charged with 79 counts of drug trafficking and racketeering, could
face a death sentence if convicted.

In both cases, prosecutors claim the doctors are responsible for the deaths
because they "recklessly" prescribed medication without examining patients.

Prosecutors in the Pensacola case compared Graves to a drug dealer, arguing
that he was running a "prescription mill," carelessly prescribing OxyContin
and other potent narcotics to known addicts. Dozens of former patients
testified the doctor conducted few or no physical exams; instead he just
handed out prescriptions.

Pharmacists stopped filling Graves prescriptions, and at least seven family
members called the doctor pleading with him to stop prescribing the
medication, prosecutors argued during the trial.

Defense attorneys countered that the doctor simply was treating patients'
symptoms, and that the patients lied about their conditions to get the
drugs, so he should not be held responsible for the deaths. Similar
arguments are being made in the Jupiter murder case awaiting trial.

Prosecutors argue Deonarine not only is responsible for Labzda's death, but
knew the medication he prescribed could prove fatal.

"It is the same principle when a drug dealer on the street sells directly
to someone resulting in a death," said Michael Edmondson, spokesman for
state prosecutors in Palm Beach County.

"It's almost insignificant that the person had a medical degree. Any
reasonable person would understand that you don't need to have that large a
number of drugs."

Deonarine, who was indicted in July, was charged with first-degree murder
because prosecutors argue Labzda died as a result of another crime - drug
trafficking.

The state alleges that over a period of months Deonarine increased the
dosage for Labzda's OxyContin prescriptions from 40 to 80 mg, although the
doctor conducted no physical examinations.

Labzda died on Feb. 8, 2001, two days after filling an 80-mg prescription
of OxyContin. The medical examiner found the 21-year-old's body contained
more than twice the recommended limit of oxycodone, the powerful narcotic
contained in OxyContin.

Court records show pharmacists had been concerned about the number of
OxyContin prescriptions Deonarine was writing, and that the clinic was
always very busy.

Prosecutors also allege Deonarine twice gave OxyContin prescriptions to an
undercover investigator without thorough examinations. The State Attorney's
Office has acknowledged the case will be difficult to win, but said
Deonarine's actions are "so egregious that it crosses the threshold from
poor doctoring to criminal conduct."

But attorney Lubin, who represents both Deonarine and Luyao, argues it is
easy for doctors to be "deceived" by patients in search of a quick fix.

"Drug addicts are very good at deceiving people," he said. "Drug addicts
don't walk in and say, 'I'm a drug addict.' "

Little, the UF law professor, said that to get a first-degree murder
conviction in the Deonarine case, prosecutors must prove the doctor had a
"high degree of mental awareness for the nature of the acts."

"They are tough cases," Little said. "You've got to prove that the doctor
knew the dangers of this thing and just plowed right ahead prescribing in
disregard of the cause."