Douglas v. Commonwealth

374 S.W.3d 345, 2012 WL 3054118, 2012 Ky. App. LEXIS 123
CourtCourt of Appeals of Kentucky
DecidedJuly 27, 2012
DocketNo. 2011-CA-000066-MR
StatusPublished
Cited by1 cases

This text of 374 S.W.3d 345 (Douglas v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas v. Commonwealth, 374 S.W.3d 345, 2012 WL 3054118, 2012 Ky. App. LEXIS 123 (Ky. Ct. App. 2012).

Opinions

OPINION

MOORE, Judge:

Veronica Douglas appeals the Lawrence Circuit Court’s judgment convicting her of second-degree manslaughter and sentencing her to serve seven years of imprisonment. After a careful review of the record, we reverse because evidence concerning Douglas’s hydrocodone prescriptions should not have been admitted. We remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 18, 2009, while Douglas was driving to her mother’s home, the vehicle she was driving crossed over the yellow line into oncoming traffic and collided with the motorcycle driven by Michael Spence, killing him. Earlier that day, Douglas had ingested some Percocet and Valium that she had been prescribed.

Prior to trial, defense counsel moved to exclude from evidence the KASPER (Kentucky All-Schedule Prescription Electronic Reporting) record pertaining to Douglas, as well as any report or testimony from Dr. Gregory Davis, a pathologist. Counsel alleged in the motion to exclude as follows:

[AJgents of the Commonwealth obtained one or more KASPER reports on [Douglas]. Those agents then further disclosed such report(s) to Dr. Greg Davis, whom the Commonwealth apparently intends to use as a scientific opinion witness at trial. His report explicitly mentions the contents of this report as significant to his conclusion that the defendant, Ms. Douglas, was impaired at the time of a motor vehicle accident central to this case.
KRS 218A.202(6) restricts the distribution or disclosure of KASPER reports and their contents to enumerated persons for enumerated purposes. “Disclosure to any other person or entity ... is prohibited unless specifically authorized by this section.” ... Subsection 12 provides that any other disclosure [except as provided in the statute] is a Class D felony for a first offense and a Class C felony for any subsequent offense.
By the plain language of the statute, disclosure of the KASPER report regarding Ms. Douglas to Dr. Davis by anyone was unlawful. His report, by its own language, cites that report as crucial to his conclusions. There is no other practical or meaningful remedy in this matter but exclusion.

The circuit court granted the motion to exclude in part and denied it in part. Specifically, the court granted the motion to exclude the introduction of Douglas’s KAS-PER report into “direct testimony,” and denied the motion to exclude the testimony of Dr. Davis.

Garret Jay Hammond, an EMT, spoke to Douglas at the scene of the accident. He testified that Douglas could not recall the accident before it occurred and that she believed she had fallen asleep while driving.

Dr. Ejhorn Nelson, a Professor of Clinical Pharmacology and Cell Biophysics at the University of Cincinnati College of Medicine, identified himself as a “career teacher in the addictions.” He is a Certified Poison Information Specialist and a Licensed Pharmacist in Minnesota and Ohio. Dr. Nelson testified that a Certified Poison Information Specialist is someone who spent two thousand hours handling toxicology and overdose problems, and [348]*348then qualified by examination. He attested that he has been teaching since 1970, and he teaches physicians about toxicology, pharmacology, addictions, analgesics,1 and treatment of overdoses.

Douglas’s blood was drawn approximately two hours and fifteen minutes after the accident. Her blood tested positive for the presence of two drugs: diazepam/nordia-zepam (also known as “Valium”);2 and oxycodone (also known as “Percocet”). Douglas allegedly had taken the Percocet because she had a dry tooth socket following surgery. Based upon the prescription history for Douglas that was provided to Dr. Nelson, he testified that in April 2009, Douglas had been prescribed Percocet following ovarian cyst surgery. The following discussion between the prosecutor and Dr. Nelson ensued:

[Prosecutor:] Let’s get more to the point. When a doctor gives you, says for four days and gives twenty pills, at the end of the fourth day, you’re supposed to throw those pills away and not take them anymore, is that correct?
[Dr. Nelson:] Not if it’s “as needed for pain.” No.
[Prosecutor:] Okay, have you reviewed the actual prescription itself, to see if it’s “as needed for pain” or if it was for four days?
[[Image here]]
[Dr. Nelson:] I have a Xeroxed copy of a prescription ... dated 04/03/09 for Per-cocet [that reads] “one every four to six hours as needed for pain, number: 20.” [Prosecutor:] Any refills for that?
[Dr. Nelson:] No refills. So there’s nothing about four days here.
* * ⅜
[Prosecutor:] Is it fair to say that twenty pills is four days’ worth?
[Dr. Nelson:] No. The drug is prescribed “as needed for pain.” You take it when you have pain.
[Prosecutor:] Okay, if you have pain associated with ovarian cysts, and then you fall and sprain your ankle, do you think that the physician intended that Percocet should be available for any type of pain, or pain associated with the ovarian cyst surgery?
[Dr. Nelson:] I don’t know why the physician prescribed the medication. It’s an analgesic. I don’t know whether he only prescribed it only for post-operative pain, or if he intended it to be used for ovarian cyst pain. I don’t know. You can’t tell from the prescription.
[Prosecutor:] Okay. Again, let’s say, two months ... goes by after this surgery, and a pain in a different area of the body occurs. Taking the oxycodone, the Percocets, that were prescribed for ovarian cysts, whether it be the surgery or the cysts itself, the doctor would not have intended just to use Percocet at any time she felt like, is that correct?
[Dr. Nelson:] I think that’s a fair statement. I think at that point, the onus is on the patient to consult with the physician.
[Prosecutor:] Exactly. And if you don’t ... use Percocet, oxycodone, or anything as a physician intended and as prescribed, that would be an abnormal use of the drug, is that correct?
[Dr. Nelson:] It’s a deviation from the prescription, yes.
[Prosecutor:] And that would be abuse, correct?
[349]*349[Dr. Nelson:] It would be misuse of the drug. It would depend on whether the person intended to get high with it or was using it to treat some other pain would be ... I would think of that as a misuse of the drug.
[Prosecutor:] It would be a gross deviation from the intended use, is that correct?
[Dr. Nelson:] I would have to know what the physician’s intent in prescribing the medication was, and assuming that it was for ovarian cyst pain, then it should be used for that purpose.
[Prosecutor:] And no other.
[Dr. Nelson:] Yes.

Dr.

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Bluebook (online)
374 S.W.3d 345, 2012 WL 3054118, 2012 Ky. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-commonwealth-kyctapp-2012.