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A federal judge is weighing whether to dismiss the case of a Brigham City orthopedic surgeon convicted by a federal jury on 40 counts of distributing painkillers to patients without a legitimate medical purpose.
U.S. District Judge Dee Benson will issue a written opinion on the fate of Dewey C. MacKay, whose defense attorneys petitioned Benson to throw out his case based on a claim of prosecutorial misconduct. Benson heard arguments on the motion Wednesday and at one point questioned prosecutors on whether it's possible the jury mistakenly convicted MacKay of criminal behavior, when jurors might have simply disagreed with the way the doctor practiced medicine.
In order for MacKay to be convicted on criminal charges, prosecutors had to prove that he illegally prescribed medicine without a legitimate medical purpose. Malpractice claims based on the way MacKay practiced medicine would be filed in a civil complaint.
"You're accusing a man of a serious crime," Benson said.
Assistant U.S. Attorney Michael Kennedy reiterated his position Wednesday that MacKay used his position as a doctor to behave like a drug dealer.
"He simply didn't care. He didn't take the time to exercise professional judgment," Kennedy said, adding that MacKay pushed patients through his office in order to make more money.
Jurors convicted the 64-year-old physician on Aug. 18 following a four-week trial and 19 hours of deliberation. Jurors found MacKay guilty of two counts of distribution of a controlled substance resulting in death, three counts of use of a communication facility in a drug trafficking offense, and 35 counts of distribution of a controlled substance. The doctor was acquitted on 44 other distribution counts.
Hours before jurors reached their verdict, the defense filed an 11th-hour motion to have the case dismissed, claiming misconduct on the part of prosecutors.
In that motion, defense attorney Peter Stirba said Kennedy lied about MacKay during closing arguments on Aug. 17.
"Prosecutors made three statements to the jury which were complete and utter fabrications unsupported by the evidence," Stirba wrote in his motion and argued Wednesday. "If you put something in a statement, it better be right," he said.
Stirba alleges false statements made by prosecutors include:
• A statement that MacKay made one telephone call to his patient, Kerri Parker Dritlein on Sept. 22, 2006 to set up a romantic "tryst." Stirba alleges that Dritlein's telephone records show there were five telephone calls made between Dritlein and MacKay, which Stirba claims corroborates MacKay's claims that the woman called begging the doctor for drugs. MacKay denies having any romantic involvement with the woman.
• A statement that MacKay called Dritlein on the morning of May 12, 2008 and told her to file a police report related to domestic violence. Stirba alleges that there were no telephone calls between the two on the morning of May 12.
• A statement that MacKay's patient, Kade Brown, had to hide his car from being repossessed. Stirba alleges there was not evidence at trial to support prosecutors' claims that Brown's car was going to be repossessed. Brown was a key witness at trial, whose mother testified that she called MacKay and asked him to stop prescribing her son painkillers because the man was addicted to them and selling them for a profit on the street. Stirba claims the statement about Brown paints an untruthful portrait of the situation.
"The function of the prosecutor under the federal constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial. The prosecutor's job isn't to win, but to win fairly, staying within the rules," Stirba wrote, citing case law. He wrote that the prosecutors made false statements in order to "inflame the jury", which interfered with MacKay's right to a fair trial.
The U.S. Attorney's Office responded to the motion by defending the truthfulness of the prosecution's closing arguments and by saying the defense had mischaracterized a number of statements made in court.
"The defendant's motion to dismiss lacks factual basis and no misconduct was committed by the government in its closing or rebuttal arguments," Kennedy wrote in reply to Stirba's motion.
According to Kennedy's statements in court, MacKay met patient Dritlein, 32, of Hooper, at a Best Rest Inn in September 2006 and offered her a massage to help with her pain management. Dritlein claimed the massage turned sexual, but she complied with MacKay because she was desperate for painkillers.
"She felt dirty, she felt humiliated, but she did it because she needed the drugs," Kennedy said in court.
Stirba maintains Dritlein, a convicted felon, lied about the massages.
At trial, MacKay's wife, Kathy MacKay, testified that she and her husband were together at the Best Rest Inn and MacKay only dropped off a prescription at Dritlein's home as part of a house call.
The MacKays went to the LDS Temple in Ogden and stopped to rest at the motel on their way home to Brigham City, she said. The motel, formerly called "The Flying ," held special memories for the MacKays, who used to stay there when they were newlyweds. The couple went on to enjoy a drive through the canyon to see the fall leaves, Kathy MacKay said.
MacKay himself testified during trial that Dritlein was a "difficult" patient, who often called to receive refills early. MacKay admitted that he had given Dritlein money on several occasions because the woman was a victim of domestic violence and he wanted to help her.
Kennedy told the jury that Kathy MacKay lied on the stand for her husband.
"All of it is a fabrication," he said of Kathy MacKay's testimony. "She wants to protect her husband. It is hard to fathom that your husband of 41 years betrayed you."
Dritlein, who later worked as an undercover informant for the DEA, helped build the case against MacKay. In a recorded conversation of a visit Dritlein made to MacKay's office, he is heard asking the woman, "You're not a client from the police or DEA? I'm serious." He then wrote her a prescription.
Benson could choose to dismiss MacKay's case altogether, or declare a mistrial, if ruling in favor of the defense's prosecutorial misconduct claims.
Should he declare a mistrial, prosecutors would have the option of retrying the case before another jury.
If Benson rules in favor of the government, MacKay's sentencing, tentatively scheduled for November, may proceed. MacKay faces a minimum sentence of 20 years in prison.
MacKay was indicted in August 2010 on charges related to prescribing more than 1.9 million hydrocodone pills and nearly 1.6 million oxycodone pills between June 1, 2005, and Oct. 30, 2009. On the evening before the start of jury selection in MacKay's trial last month, prosecutors filed a motion to dismiss one-third of MacKay's charges, saying the case could be tried more effectively without the additional charges.
At trial, prosecutors argued that MacKay did not conduct physical exams or question patients to determine whether they were abusing or selling the drugs, despite cases in which a patient's family member called to report prescription abuse.
MacKay was accused of pushing 80 to 120 patients through his office in an eight-hour workday, spending just minutes with each person.
Among the counts MacKay was convicted on was causing the death of 55-year-old David Leslie Wirick, who died in 2006. Wirick, a rocket scientist at Alliant Techsystems, died of a drug overdose during a three-day binge after filling prescriptions from MacKay.
In a separate motion argued on Wednesday, Stirba asked Benson to acquit MacKay on the charges related to Wirick, stating there wasn't sufficient evidence to prove MacKay's prescriptions caused Wirick's death. He cited testimony from medical experts that suggested Wirick died from pneumonia, and not from painkillers in his system.
Benson will issue a decision on the acquittal related to Wirick's case at a later date.
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