Court Explains ‘Implied Malice’ in Upholding Physician’s Murder Convictions

The Court of Appeal has found a substantial basis for a physician’s second-degree murder convictions arising out of the doctor’s drug prescriptions to three patients. By articulating the “implied malice” required for the convictions, the appellate court explained how circumstantial evidence of the physician’s state of mind could be accepted by a jury to convict the physician of murder.

As a licensed physician, Hsiu Ying Lisa Tseng operated a general medical practice with her husband. According to the facts accepted by the Court of Appeal, after Dr. Tseng joined the clinic in 2007, the Advance Care AAA Medical Clinic in Rowland Heights went from serving predominantly local Hispanic and Asians who paid through insurance to serving a clientele of mostly young, largely cash-paying white males from outside the area seeking pain and anxiety management medications.

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In July 2012, Dr. Tseng was arrested and charged with three counts of second-degree murder in the deaths of patients Vu Nguyen, Steven Ogle, and Joseph Rovero. The convictions involved treatment by Dr. Tseng of three years for Mr. Nguyen, several weeks for Mr. Ogle, and a single visit with Mr. Rovero.

Mr. Nguyen’s treatment by Dr. Tseng included prescriptions for Xanax, Norco, Vicodin, and Opana for back and neck pain, plus Adderall on the patient’s claim that he had been diagnosed with attention deficit disorder. Following Mr. Nguyen’s death, Dr. Tseng told the coroner’s investigator that Mr. Nguyen was always seeking more medication and stronger doses.

At trial, the prosecution presented evidence that Tseng had no treatment plan for Mr. Nguyen, did not obtain information to corroborate her patient’s pain and anxiety, did not complete an adequate physical examination, and did not contact Mr. Nguyen’s other physicians.

When Mr. Ogle sought treatment from Dr. Tseng, he told her he was taking six to eight tablets of OxyContin daily, using heroin, and that he wanted to take methadone to treat his addiction. Though not a licensed addiction specialist, Dr. Tseng prescribed Mr. Ogle Xanax and methadone, for which he returned twice over four weeks to obtain refill prescriptions. Mr. Ogle died two days after the third prescription and near his body were nearly empty bottles of the Xanax and methadone plus a third bottle containing OxyContin that had been prescribed three months earlier by another physician. The coroner’s opinion was that Mr. Ogle died of “methadone intoxication.”

At trial, the prosecution presented evidence that Dr. Tseng’s treatment of Mr. Ogle represented an extreme departure from the standard of care in various ways, including that she was not a licensed addiction specialist and did not have training to monitor Mr. Ogle’s methadone use.

Treatment of Mr. Rovero, a college student from Arizona, involved just one visit for his complaints of back pain, wrist pain, and anxiety. Mr. Rovero told Dr. Tseng that he had been daily using high doses of OxyContin and Xanax, plus the muscle relaxant Soma, and requested the same prescriptions. Dr. Tseng prescribed Roxicodone, Soma, and Xanax. Mr. Rovero died nine days later with empty bottles near his body for the medications prescribed by Dr. Tseng. After his death, Dr. Tseng told investigators that her goal had been to wean Mr. Rovero from opioids and that she had reduced the doses of the drugs he had been taking by 80 percent. At trial, prosecutors presented evidence that such a drastic reduction Mr. Rovero would suffer from withdrawals and that her prescriptions likely increased his potential for overdose because Dr. Tseng failed to verify the doses of the earlier prescriptions from other physicians.

Also at trial, the prosecution presented evidence on six additional patients – all in their 20s and early 30s – who died shortly after filling prescriptions for controlled substances that Dr. Tseng had written for them.

On appeal, Dr. Tseng contended that her convictions should be overturned because of a lack of substantial evidence that she acted with the implied malice. She argued that though she acted with negligence sufficient to support convictions for involuntary manslaughter, there was no evidence she acted with “conscious disregard” for her patients’ lives.

In the unanimous opinion, the Los Angeles-based Court of Appeal explained in The People v. Hsiu Ying Lisa Tseng that implied malice exists when an intentional act naturally dangerous to human life is committed “by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

The appellate court began its analysis of the convictions by stating its recognition that a departure from the medical standard of care alone is not sufficient to support a finding of implied malice. The court then commented that Dr. Tseng’s experience and medical training regarding opioids and other controlled substances “endowed her with special knowledge of [the] dangers” of the drugs she prescribed and that the combination of the prescribed drugs, often with increasing doses, posed a significant risk of death.

The court also noted that after larger pharmacies raised questions with Dr. Tseng over her prescriptions and ultimately stopped filling her prescriptions, the physician sent her patients to small “mom and pop” pharmacies. According to the court’s written opinion, Dr. Tseng knew some patients were obtaining similar prescriptions from other doctors, but did not contact those other doctors (or the CURES database) to find out more about those prescriptions. The court also noted that in the course of treating Mr. Nguyen, Mr. Ogle, and Mr. Rovero, she became aware of an increasing number of deaths of other patients with similar drug profiles following her prescriptions of medications for them.

In the case of Mr. Nguyen, the court stated: “A reasonable jury could infer from [the] evidence that Tseng was aware Nguyen was abusing the opioids and sedatives she had prescribed, and that by continuing to prescribe the drugs in greater amounts and stronger doses, Tseng acted in conscious disregard for his life.”

The court also found substantial evidence that Dr. Tseng acted with implied malice in treating Mr. Ogle. The court noted in particular that though Dr. Tseng observed Mr. Ogle was suffering from drug withdrawal, she did not refer him to an addiction specialist, but “just wrote him refill prescriptions.”

Finally, the court found substantial evidence to support implied malice in treating Mr. Rovero.

“By the time she prescribed drugs for Rovero . . . Tseng knew that eight of her patients . . . had died shortly after she had prescribed the types of drugs Rovero sought. Even armed with this knowledge, she continued to prescribe dangerous drugs in conscious disregard for Rovero’s life.”

The court rejected Dr. Tseng’s assertion that because coroner and police investigators never informed her that she was responsible for the deaths of the three victims or the deaths of other patients, her continued prescribing practices did not show the necessary reckless mindset to support a finding of implied malice.

“[E]ven accepting Tseng’s claim that investigators did not expressly inform her that she was directly responsible for the deaths of Nguyen, Ogle, Rovero, or other patients, her conduct after learning of these deaths demonstrated she was aware of the lethal consequences of her prescribing practices,” the court explained. “For example, Tseng placed ‘alerts’ in the patient files indicating they died of suspected drug overdoses. She also altered patient records after she learned she was under investigation.

“From this evidence and other circumstantial evidence in the record, a jury could have reasonably found that Tseng knew the cause of Nguyen’s, Ogle’s, and Rovero’s deaths and her role in their demise. In sum, substantial evidence supports the jury’s findings of implied malice.”   

 

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.