The California Department of Consumer Affairs (DCA) is aware of recent news and social media reports of prescribers wrongfully hoarding and prescribing for themselves and family members certain medications referenced in the media relating to the novel coronavirus (COVID-19).
Several states have recently issued emergency restrictions on how the drugs can be dispensed. Many require that medications be prescribed and dispensed only to patients with a legitimate and current medical condition. Further, the FDA recently issued an Emergency Use Authorization to allow for the use of hydroxychloroquine sulfate and chloroquine phosphate products donated by the Strategic National Stockpile for certain hospitalized patients with COVID-19.
DCA, the Medical Board of California, and the California State Board of Pharmacy remind health care professionals that inappropriately prescribing or dispensing medications constitutes unprofessional conduct in California. Prescribers and pharmacists are obligated to follow the law, standard of care, and professional codes of ethics in serving their patients and public health.
PROTECT YOUR EXPERT WITNESSES
In People v. Parson (2008) 44 Cal.4th 332 the court stated that the prosecutor could attack the defense psychiatrist but NOT if the attack was personal / ad hominem and not tied to actually evidence (or reasonable inferences from the evidence).
In Parson, the prosecutor was in bounds arguing the psychiatrist “may have been biased given his status as a paid witness”, but he went out of the evidence and into ad hominem attacks when he called the psychiatrist “a washed-up doctor”.
Remember that in California, a doctor can only give an opinion based upon facts that are IN EVIDENCE. The prosecutor can attack the validity of the data that is IN EVIDENCE but cannot go outside that box.
It is common in criminal trials for the attorneys to attack the credibility of their opponent. Defense counsel should object, even if it is in front of the jury, when the attacks go over the line. In People v. Seumanu (2015) 61 Cal.4th 1293 the Court of Appeal said that the prosecutor went over the line when she implied that defense counsel knew his client was guilty, and that counsel put forward a sham defense that he knew was false. Likewise the court found misconduct for a prosecutor to claim that the defense counsel did not have a genuine belief in his/her t client’s innocence. In People v. Ledesma (II) (2006) 39 Cal.4th 641 it was misconduct for the prosecutor to argue that there was an “effort in this case to introduce things for your consideration that were introduced perhaps by inappropriate questions. I think you know what I am referring to.”
Defense counsel must object and ask the Court to not only sustain the objection but to also instruct the jury to disregard the comment AND to instruct the jury that the comment was improper.