Jul 2, 2009 | 4 min read

Michael Jackson’s Doctors- Potential Liability For Prescribing Controlled Substances/Drugs-Analysis of California State Board of Medicine Regulations

Michael Jackson’s name is all over the headlines as the public is not only mourning the great, late singer/performer, but is virtually obsessed with the cause of his sudden death. One of the things police are clearly investigating is whether there was any wrongdoing by one of his personal California physicians. Now, rumors are circulating of Jackson using an alias to secure medications, and if any doctor facilitated such prescription, this could be a criminal law violation. Since Michael Jackson was in California, the issue of whether controlled substances or non-controlled medications were improperly or illegally administered by a doctor would be governed by the Medical Board of California as well as California State criminal law.

One of the Business and Professions Code sections in California states that

"No physician and surgeon shall be subject to disciplinary action by the Board for prescribing or administering controlled substances in the course of treatment of a person for intractable pain."

(Business and Professions Code Sec. 2241.5(c). Clearly, the State Board of Medicine allows a physician, such as Michael Jackson’s physician, to administer controlled substances if the late singer suffered from intractable pain, but based on many first person reports of his last several weeks, it is dubious whether he suffered intractable pain. Diprivan is a medication/drug supposedly provided to Jackson and there are allegations that he may have been injected with this potent drug the day he died. Actually, no one knows what the toxicology results will show of Jackson’s autopsy-everything right now is hearsay. [Update: I have been advised that this drug may not be a controlled substance, but more on that is discussed in a related article-see below].

Based on a position paper of the Medical Board of California in effect in 1994 and revised in 2007, it would be difficult to charge a physician for a violation of the Code of California based on prescribing a controlled substance for pain (autopsy results are pending) based on this provision also:

"A physician and surgeon may prescribe for, or dispense or administer to, a person under his or her treatment for a medical condition dangerous drugs or prescription controlled substances for the treatment of pain or a condition causing pain, including, but not limited to, intractable pain. (b) No physician and surgeon shall be subject to disciplinary action for prescribing, dispensing or administering dangerous drugs or prescription controlled substances in accordance with this section." Another portion of the State Board pain guidelines states that the above section "does not affect the power of the Board to discipline a physician and surgeon for any act that violates the law, including gross negligence, repeated negligent acts, or incompetence … prescribing on the internet; failure to keep complete and accurate records of purchases and disposals of controlled substances; writing false or fictitious prescriptions for controlled substances, or prescribing, administering or dispensing in violation of the pertinent sections of the Health and Safety Code.

My take is that an accidental overdose of a prescription medication in California (not commenting on North Carolina or Virginia) would not likely be a violation of the State Medical regulations/code, and especially given the position statements of the State Board of Medicine, it would take much more than an accidental overdose to charge one of Jackson’s doctors with a state board regulation violation.

However, the issue of other possible criminal law violations, and medical malpractice causing a wrongful death, are wholly different issues. A doctor may be civilly liable for medical negligence, if this caused Jackson’s sudden death. A doctor providing or injecting a drug that is not properly prescribed for the conditions Jackson suffered may have all kinds of liability. Also, rumors are circulating about Jackson using aliases to obtain drugs, but these rumors have not been attributed to any named source. Any doctor who knowingly facilitated that type of a scheme has potential criminal liability.