Summary - 14-2-0509 State v. Marcano, App. Div. Docket No. A-1021-12T3

Summary of the prescription drug case involving professional license defense.

 

In the recent July 2, 2013 decision in State v. Marcano by the New Jersey Appellate Division, the Court reversed the trial court’s decision to exclude testimony by a key witness against the defendant, Frances Marcano. On October 26, 2010, Dr. Tadeusz Majchrazak reported to Jersey City Police that Marcano presented a pharmacy with a prescription for Percocet on Majchrazak’s prescription script that Dr. Majchrazak did not prescribe to the defendant. A few days before the forged script was presented to the pharmacy, the defendant had requested Dr. Majchrazak to prescribe Percocet and Dr. Majchrazak refused since the defendant was seeing a pain management specialist for pain.

Statute N.J.A.C. 13:45A-27.(d) required Dr. Majchrazak to report the forgery to the authorities, however the defendant argued that the conversations days before the forgery with Dr. Majchrazak were privilege and filed a motion in limine. The trial court granted the defendant’s motion in limine to limit Dr. Majchrazak from testifying to the conversations days before the forged script was presented to the pharmacy. The trial court found that public policy wanted to protect the doctor-patient privilege to keep lines of communication open and prevent a possible chilling effect if the doctor was to report prior conversations with the defendant regarding the medication. The trial court was not satisfied the defendant’s prior conversations with the doctor were “in furtherance of a criminal purpose.” People v. Sinski, 669 N.E. 2d 809 (N.Y. 1996).

The Appellate Court reversed, finding that the physician-patient privilege does not bar defendant's doctor from testifying regarding defendant's efforts to obtain a prescription for Percocet during an office visit. Privileges are statutory creations that advance a societal interest, but are narrowly construed. State v. Schreiber, 122 N.J. 579, 582 (1991). When the privilege is faced against other competing rights, the Court finds “the privilege yields.” State v. Marcano, (App. Div. 2013). The Court’s interpretation of N.J.S.A. 2C:35-17 is that information communicated to a practitioner to unlawfully procure administration of a controlled dangerous substance shall not be a privileged communication. The trial court believed Marcano’s efforts to have his doctor prescribe Percocet was not unlawful; only Marcano’s efforts when he presented a forged script were unlawful. The Appellate Court decided that Marcano’s efforts to have the doctor to prescribe Percocet were unlawful therefore lowering the standard that bars a conversation under physician-patient privilege.

 

Prescription drug case summarized by New Jersey Drug Lawyer, Jeffrey Hark.