NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0344n.06
FILED
No. 10-6036 Mar 29, 2012
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
JOHN THEODORE HANCOCK, )
)
Defendant-Appellant. )
)
BEFORE: SUHRHEINRICH, STRANCH and DONALD, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Defendant John Theodore Hancock, M.D., appeals from
his judgment of conviction and sentence on various health care fraud charges. We AFFIRM.
I. Background
Defendant operated a medical business known as “Hancock Family Medicine” in
Mooresburg, Tennessee. Defendant prescribed controlled substances, including methadone,
morphine, oxycodone (OxyContin), hydrocodone, and benzodiazepines, for patients without
performing physical examinations and without determining whether the drugs were medically
necessary. Most of the drugs were paid for through the TennCare program, Tennessee’s program
for indigent medical care. Several of Defendant’s patients died.
Defendant was charged with health care fraud, drug offenses, money-laundering, and income
tax violations. Specifically, Counts 1 through 32 of the superseding indictment charged Defendant
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with engaging in a scheme to defraud a health care benefit program, in violation of 18 U.S.C. § 1347.
Counts 1, 2, 18, and 19 further charged that Defendant’s fraud resulted in death. Counts 33 through
105 charged Defendant with unlawfully dispensing, or causing to be dispensed, controlled
substances, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(D), and (b)(2), and Counts 33
through 36 further charged that deaths resulted from the unlawful dispensing. After a ten-day jury
trial, Defendant was convicted of: twenty-nine counts of defrauding the TennCare program, with the
conduct charged in two counts resulting in death–Evelyn Lindsey (Count 1) and James Brogan
(Count 2); twenty-nine counts of unlawfully dispensing Schedule II controlled
substances–oxycodone, morphine, methadone, and fentanyl–outside the scope of accepted medical
practice and not for a legitimate medical purpose with the conduct in three counts resulting in death
(including Lindsey and Brogan) (Counts 33 through 35); nine counts of unlawfully dispensing
Schedule III controlled substances (hydrocodone with acetaminophen); twenty-nine counts of
unlawfully dispensing Schedule IV controlled substances; two counts of money laundering; one
count of tax evasion; and four counts of failure to file income tax returns. The jury returned not
guilty verdicts on five counts involving patient Chester Thacker.
Defendant filed a motion for new trial, and later an amended motion for new trial and
judgment of acquittal, arguing that the evidence was insufficient for Counts 33 through
35–unlawfully dispensing controlled substances which resulted in the deaths of three patients,
including Lindsey and Brogan, absent proof that their deaths were actually caused by the prescription
drug that was prescribed to them by Defendant. The district court denied the motions, holding that
the record contained sufficient evidence from which a jury could find proximate cause between
Defendant’s unlawful dispensing of controlled substances and the victims’ deaths.
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Defendant was sentenced to an aggregate term of 276 months’ imprisonment: concurrent
terms of 276 months for health care fraud resulting in death; 120 months for the remaining health
care fraud counts and money laundering; 240 months for the unlawful dispensing of Schedule II
controlled substances; 60 months for the unlawful dispensing of Schedule III controlled substances
and tax evasion; 36 months for the unlawful dispensing of Schedule IV controlled substances; and
12 months for the failure to file income tax returns. Defendant was also ordered to serve five years
of supervised release and pay restitution of $70,764.02. He then filed this appeal.
II. Analysis
Defendant argues on appeal that there was insufficient evidence to support his convictions
for health care fraud that resulted in death. In determining whether there is sufficient evidence to
support a conviction, the question before us is whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review the
relevant evidence in the light most favorable to the Government and must affirm the conviction if
any rational trier of fact could find the defendant guilty. Id.
A physician commits health care fraud if he knowingly and willfully executes a scheme to
defraud a health care benefit program. 18 U.S.C. § 1347(a). The statute states in relevant part: “[I]f
the violation results in death, such person shall be fined under this title, or imprisoned for any term
of years or for life, or both.” § 1347(a)(2). The jury must also find beyond a reasonable doubt the
facts supporting the enhanced penalty under (a)(2). See Apprendi v. New Jersey, 530 U.S. 466
(2000).
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Defendant contends that the government did not meet the standard of proof for establishing
health care fraud resulting in death. Section 1347 does not indicate the level of causation required
for imposition of the enhanced penalties under subsection (a)(2). However, in United States v.
Martinez, 588 F.3d 301, 317 (6th Cir. 2009), cert. denied, 131 S. Ct. 538 (2010), this court held that
proximate cause was the appropriate causation standard under the enhanced penalty provision of 18
U.S.C. § 1347:
Our decision is also guided by the principles of proximate cause. “The concept of
proximate cause incorporates the notion that an accused may be charged with a
criminal offense even though his acts were not the immediate cause of the victim's
death or injury.” Guillette, 547 F.2d at 749. “In many situations giving rise to
criminal liability,” the harm “is not directly caused by the acts of the defendant but
rather results from intervening forces or events.” Id. “Where such intervening events
are foreseeable and naturally result from [the defendant]’s criminal conduct,” the
defendant is “criminally responsible for the resulting harm.” Id.; see also
Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir. 1959) (holding defendant
culpable for the “natural and probable consequence [ ]” of his conduct). Therefore,
even if [the defendant] did not intend for his two patients to die, he can be held
responsible for their deaths if there was sufficient evidence that it “reasonably might
or should have been foreseen . . . that [his fraudulent conduct] would be likely to
create a situation which would expose another to the danger of . . . death.” Id.; see
also Harris, 701 F.2d at 1102 (holding that “if death results” requirement under §
241[was] satisfied because death was “a foreseeable and natural result” of defendant's
actions).
Id. at 319. Furthermore, a patient’s use of illegal narcotics is not an intervening cause which breaks
the chain of proximate causation if it is a foreseeable and natural result of the defendant physician’s
criminal conduct. Id. at 321.
As a threshold matter, Defendant complains that the district court did not give a specific
instruction about proximate cause, as Defendant requested, but instructed the jury to consider
whether the United States had proven, beyond a reasonable doubt, that Lindsey’s and Brogan’s
deaths “resulted from” Defendant’s health care fraud.
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An issue regarding jury instructions is a question of law that is reviewed de novo. United
States v. Gunter, 551 F.3d 472, 484 (6th Cir. 2009) (citing Williams ex rel. Hart. v. Paint Valley
Local Sch. Dist., 400 F.3d 360, 365 (6th Cir. 2005)). The district court’s refusal to give a requested
instruction is reviewed for abuse of discretion. Id. An abuse of discretion occurs if the requested
instruction (1) was a correct statement of the law, (2) was not substantially covered by the charge
actually delivered to the jury; and (3) concerned a point so important that the failure to give it
substantially impaired the defendant’s defense. Id. (citing United States v. Williams, 952 F.2d 1504,
1512 (6th Cir. 1991)).
Martinez was decided on December 1, 2009, after the jury trial in this case.1 In its
instructions, the district court tracked the language of § 1347(a)(2). We find no abuse of discretion
because the issue and applicable law, as defined in Martinez, were “substantially covered by the
charge actually delivered to the jury,” see Gunter, 551 F.3d at 484, and the court’s instructions were
not misleading or confusing, see United States v. Pensyl, 387 F.3d 456, 458 (6th Cir. 2004).
Turning to his principal argument, Defendant maintains that the government did not meet its
burden of proving beyond a reasonable doubt that his criminal conduct was the proximate cause of
Lindsey’s and Brogan’s deaths. Instead, he claims the government proved merely that he prescribed
controlled substances for each of the deceased, at some time prior to their death. Based upon our
review of the record, we reject this argument.
As to patient Lindsey, the record establishes that, at the time of her death, Lindsey had a
lethal amount of methadone in her system. Defendant’s patient records reflected that she was his
1
The district court’s order denying Defendant’s motion for new trial and amended motion for
judgment of acquittal was issued on July 27, 2010.
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patient and a TennCare recipient; that she received prescriptions for methadone and Xanax
(alprazolam); that she filled the prescriptions on August 16, 2003; that TennCare paid for the drugs
(id. at 16-19); and that Lindsey died from a methadone overdose on August 17, 2003. Lindsey’s
blood contained methadone at a concentration of 0.71 micrograms per milliliter, a toxic to lethal
range. At trial, Dr. Kenneth Ferslew, a professor of pharmacology and toxicology at East Tennessee
State University’s Quillen College of Medicine and director of the toxicology section at the Jenkins
Forensic Center, explained how methadone creates a substantial risk of central nervous system
depression. After reviewing the laboratory report of Lindsey’s blood sample, he opined that the level
of methadone in Lindsey’s blood was “potentially lethal.”
Dr. Stephen Loyd, a physician and assistant professor of internal medicine at East Tennessee
State University’s Quillen College of Medicine, reviewed Lindsey’s file. Dr. Loyd stated that
Lindsey had a diagnosis of chronic low back pain. (Id. at 69.) She also had “multiple red flags for
addictive behavior,” (Id. at 67), but no history of drugs or alcohol was ever taken, nor was a mental
status examination ordered. (Id. at 67-71.) Dr. Loyd testified that it was dangerous to treat pain by
using methadone, given the long-acting nature of that drug. He explained that opiates (such as
methadone) and benzodiazepines are both depressants of the central nervous system and can result
in death. After reviewing Lindsey’s file, Dr. Loyd opined that the drugs prescribed by Defendant
were outside the scope of accepted medical practice, and that she died of “apparent drug overdose,”
based on “positive toxicology reports.” (Id. at 67-78.)
As to patient Brogan, the record establishes that he died as a result of the fatal combination
of morphine and other drugs, all prescribed by Defendant. According to Defendant’s records,
Brogan had his last appointment with Defendant on September 26, 2003, at which time Defendant
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prescribed him MS Contin (morphine), Valium (diazepam), Elavil (amitriptyline), and other drugs.
The prescriptions were filled that same day and paid for by TennCare. (Id. at 21-23.) Brogan died
in October 2003.
Dr. Loyd reviewed Brogan’s patient file. Dr. Loyd testified that Defendant had not prepared
a patient history, had not done a physical examination, had not ordered imaging, and had not
screened Brogan for substance abuse. Defendant gave a diagnosis of chronic low back pain and gave
Brogan prescriptions for five drugs with central nervous system depressant effects. Dr. Loyd gave
his opinion:
My summary was that Mr. Brogan lacked the history, physical examination
and diagnosis to support chronic narcotic use and escalation of dosage. He was on
multiple opiates which caused respiratory suppression without discussion taking
place about the possibilities. There’s no psychiatric evaluation, mental exam or
diagnosis to support the prescriptions of Xanax and Elavil, particularly at a 150
milligram dose. . . .
Mr. Brogan had a crescendo pattern of narcotics use. . . . He requested higher
dosages and more frequent administration. . . . His complaints were dramatic and not
supported by history, physical examination or imaging. . . . In my opinion the use of
narcotics in this case was outside the scope of accepted medical practice.
Dr. Alfredo Paredes, a forensic pathologist and senior medical examiner for the State of
Alabama, testified that he participated in Brogan’s autopsy. Toxicological testing showed the
presence of amitriptyline, nortriptyline (a metabolite of amitriptyline), benzodiazepines, and opiates
(morphine) in Brogan’s system. (Id. at 29.) Dr. Ferslew testified to the same effect. A gastric drug
screen revealed the presence of the same drugs, with the opiate being morphine. Dr. Paredes
explained how opiates depress the central nervous system, along and in combination with other
drugs, such as benzodiazepines. Dr. Paredes testified that Brogan “died from multiple drug toxicity
or drug interaction; that is the presence of the antidepressant, amitriptyline, which by the way was
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in a toxic range according to the toxicology report, and the presence of opiates and benzodiazepine.”
In his opinion, “all these drugs combined, I . . ., produced on him a fatal reaction, whether it be
through the respiratory system or through the cardiovascular system in the way of arrhythmias.” (Id.
at 31.) On cross-examination, Dr. Paredes testified that Brogan died from the toxic interaction of
opiates, benzodiazepines, and amitriptyline. (Id. at 33.) He explained that pulmonary edema, which
was found in Brogan’s body, was a “cardinal sign” of multiple drug toxicity. (Id. at 42.) Dr. Paredes
also stated that there were no other indications of trauma or natural disease that could have explained
Brogan’s death. (Id. at 26.)
Lindsey and Brogan died shortly after being unlawfully prescribed Schedule II controlled
substances, namely methadone and morphine, by Defendant. Expert testimony established that at
the time of death, Lindsey had a lethal amount of methadone in her system. Expert testimony further
established that Brogan died as a result of the fatal combination of morphine and other drugs, all
prescribed by Defendant. The record supports the jury’s finding, which was consistent with the
language of the statute and the jury instructions, that Lindsey’s and Brogan’s deaths “resulted from”
health care fraud. Viewing the evidence in the light most favorable to the government, a rational jury
could have concluded that Lindsey’s and Brogan’s deaths were a natural and foreseeable result of
Hancock’s criminal conduct. Cf. Martinez, 588 F.3d at 319-23 (holding that the evidence supported
the jury verdict that the defendant’s criminal conduct under § 1347 “resulted in” the death of two
patients).
III. Conclusion
For the reasons stated, we AFFIRM Defendant’s convictions.
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