Raber v. State

HUNSTEIN, Presiding Justice,

dissenting.

A physician determines that the patient he has just examined needs a prescription for a certain drug. In the presence of the patient and attending nurse, the physician signs the prescription document but, uncertain of the proper spelling of the drug, hands the prescription document to his nurse while he thumbs through his Physicians’ Desk Reference. Thanks to the majority and its unreasonable interpretation of OCGA § 16-13-41 (h), the physician has just committed a felony punishable by five years imprisonment and a $25,000 fine. It does not matter that the nurse is standing directly next to the doctor, perhaps filling in the patient’s name and address; it does not matter that the physician retrieves the signed document moments later; it does not matter that the physician intends the patient in the room to be the ultimate user of the prescription. Under the majority’s interpretation of OCGA § 16-13-41 (h), the physician “issued” the prescription document to the nurse and because the document so issued was signed in blank, the physician violated OCGA § 16-13-42 (a) (1) by unlawfully “distributing] or dispensing] a controlled substance in violation of Code Section 16-13-41.”

The majority justifies its interpretation of “issue” in OCGA § 16-13-41 (h) by referencing the usual statutory interpretation language but it omits the most pertinent rule of construction, namely, our duty “to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” State v. Mulkey, 252 Ga. 201, 204 (312 SE2d 601) (1984). The Legislature enacted OCGA § 16-13-41 (h) to criminalize the behavior of those physicians who are nothing more than drug dealers with medical licenses. The Legislature had in mind individuals such as Herbert Garfield, the physician in Price v. State, 247 Ga. 58 (273 SE2d 854) (1981), who conspired with a mechanic named Price to use “various ‘script runners’” to fill the illegal prescriptions Garfield wrote. Id. at 59. Nothing in the Controlled Substances chapter of the Criminal Code of Georgia indicates that the Legislature intended to criminalize the behavior of legitimate physicians who give pre-signed blank prescription documents to trusted health care professionals on their staff for the sole purpose of facilitating the delivery of a specific prescription ordered by the physician to a patient under the physician’s direct medical supervision. Yet this is precisely the construction the majority gives to OCGA § 16-13-41 (h) so as to bring within the ambit of this statute practitioners like Dr. Raber, who has been charged with 33 felony counts of violating OCGA § 16-13-42 (a) (1), *257all because he gave his nurse a pad of pre-signed blank prescription documents not for her own use but for his patients’ legitimate medical needs.

It is uncontroverted that the term “issue” is not defined in OCGA § 16-13-41, in OCGA § 16-13-21 (definition of terms used in Chapter 13 of Title 16) or elsewhere in the Code. Reviewing the manner in which the Legislature uses the term “issue” elsewhere in OCGA § 16-13-41, even the majority acknowledges the Legislature’s clear intent that a prescription “issue” when the ultimate user or someone on her behalf has received it. The majority, however, then rejects that common sense interpretation of the term and seizes upon hair-splitting nuances in language to conclude that the Legislature intended “issue” to have a completely different interpretation in subsection (h) of OCGA § 16-13-41 than it has in prior subsections in the same statute. Suddenly, “issue” consists merely of the physical transfer of the prescription document from a physician to any other person, regardless of that person’s identity, with the issuance becoming a felony when the document that is transferred is signed but otherwise blank. Hence, the physician in the hypothetical above has committed a felony merely by handing a signed but blank prescription document to the nurse standing next to him regardless of the fact that the patient in the room is the “ultimate user” of that prescription document and is, in fact, the person who thereafter presents the completed document to a pharmacy for dispensing of the prescribed medicine. This is the “unreasonable” and “absurd consequence[ ] not contemplated by the legislature” that results from the majority’s rejection of a common sense interpretation of “issue” in subsection (h) consonant with its use elsewhere in OCGA § 16-13-41. See State v. Mulkey, supra.

A criminal statute must be read according to the natural and obvious import of its language, and its operation should not be limited or extended by application of subtle and forced interpretations. Foster v. State, 273 Ga. 555, 556 (1) (544 SE2d 153) (2001). Applying that rule of statutory construction to avoid an absurd and unintended result, I would recognize that “issuance” of a prescription document is more than the mere act of transferring the form from a physician to another. Instead, issuance of a prescription form reflects that the physician has given the form to the ultimate user, i.e., the person who has been enabled by the issuance of the form to obtain controlled substances. This construction of issuance is consistent with the Legislature’s intent in enacting OCGA § 16-13-41 (h) and the evil it sought to correct by forbidding the issuance of a “signed in blank” prescription form, i.e., the use of such a form to obtain controlled substances by unauthorized persons without a legitimate medical purpose and without proper medical supervision. *258This is the construction that would categorize Dr. Raber not as a “drug dealer with a medical license” subject to felony punishment for violating OCGA § 16-13-42 (a) (1), but as a small-town physician who engaged in unprofessional conduct under the rules of the Composite State Board of Medical Examiners, whose lapse is best addressed by the Board and the Medical Association of Georgia.

Contrary to the majority’s opinion, the term “issue” fails to give persons of ordinary intelligence fair notice that the conduct at issue in this case is criminalized by OCGA § 16-13-41 (h) and thus renders the statute unconstitutionally vague. The statute is unconstitutional for an additional reason. We have held that statutes are unconstitutionally vague where a defendant’s conduct was prosecuted as unlawful based solely upon the consequences that flowed from that conduct and law enforcement officials’ view of those consequences. Hall v. State, 268 Ga. 89, 93-95 (485 SE2d 755) (1997). While Dr. Raber is not being prosecuted for the precise pre-signed prescription document used to obtain the controlled substance on which Eaton apparently overdosed, it is disingenuous for the majority to claim that the charges against him do not flow exclusively from the consequences of Eaton’s lamentable death and the view taken by law enforcement officials of those consequences. The record in this case is uncontroverted that the one prescription pad containing the 33 pre-signed blank prescription documents, i.e., the source of the 33 felony counts against Dr. Raber, was uncovered solely as the result of law enforcement’s investigation into Eaton’s death. But for her death, no charges would currently be pending against Dr. Raber. I would recognize that, because Dr. Raber would not be facing these charges except for the consequences of his conduct, OCGA § 16-13-41 (h) is unconstitutionally vague for its susceptibility to selective and arbitrary enforcement. See Hall, supra.

Physicians in this State know that pre-signing a blank prescription constitutes unprofessional conduct that would authorize the Composite State Board of Medical Examiners to take disciplinary action against them pursuant to Board Rule 360-3-.02 (4). They are likely also aware that a small minority of physicians, in an abuse of the trust placed in them, process prescription documents in various illegal ways, including issuing signed-in-blank prescription forms in order to enable unauthorized persons to obtain controlled substances that could not otherwise be lawfully dispensed. However, what physicians in this State have not previously known, due to the failure in the language in OCGA § 16-13-41 to provide any fair warning, is that it is a felony in violation of the Georgia Controlled Substances Act for a physician to simply hand a signed but blank prescription form to a health care professional on the physician’s staff for the purpose of facilitating the delivery of the prescription *259form to a patient, the ultimate user, as authorized by the physician.1 Because I would not construe the language in OCGA § 16-13-41 (h) to encompass such conduct within the statutory prohibition and because I would find the statute unconstitutionally vague, both for failing to provide fair warning to persons of ordinary intelligence and for its susceptibility to arbitrary and selective enforcement, I respectfully dissent to the majority’s opinion.

Of course, I would recognize that a physician “issues” a pre-signed, blank prescription form in violation of OCGA § 16-13-41 (h) notwithstanding the fact that the recipient is a member of the physician’s staff in those situations where the physician provides such a form for the staff member’s personal use or to enable the staff member, in turn, to provide the prescription form to an unauthorized recipient.