The Appellate Division concluded in relevant part: Viewing the evidence presented to the grand jury as true and affording the State all reasonable inferences, we conclude there was “some evidence” that the CDS prescriptions issued by Campione to K.M., M.M., B.H. and A.M. were neither medically necessary nor issued in good faith. Consequently, the motion court erred by dismissing counts five, six, nine, thirteen, fourteen, seventeen, and eighteen. In so ruling, we are not commenting here on what evidence would be admissible at trial regarding the manner and locations of the examinations and treatment performed by Campione in his vehicle, at restaurants, or locations other than his office or the patient’s residence.
On the other hand, our careful review of the grand jury testimony and exhibits leads us to conclude insufficient evidence was presented to the grand jury to make out a prima facie case as to counts seven, eight, ten, eleven, twelve, fifteen, sixteen, and nineteen through twenty-nine. Accordingly, the motion court properly dismissed those counts. By way of example, count seven charged Campione with distribution of CDS to P.S., yet during his statement to investigators, which was read to the grand jury, P.S. stated he provided Campione with his MRI report. He stated he had spinal stenosis and had difficulty walking. He saw Campione for pain management to address severe pain in his arms and legs. P.S. noted that Campione refused to prescribe him Percocet because it was inappropriate for chronic pain. He understood that Campione was a physician assistant, not a medical doctor.
Count twenty-six charged Campione with distribution of CDS to P.A. During her statement to investigators, which was read to the grand jury, P.A. stated she had been injured in a serious motor vehicle accident and suffered a fractured leg, anoxia resulting in a lengthy coma, seizures, and a cognitive brain injury. This led to Campione treating her for bed sores. Campione saw P.A. at her residence, had blood work done, checked her vitals, inspected her bed sores, and referred her for physical therapy. In addition to pain medication and Xanax, Campione prescribed sleeping pills, diabetes medication, diuretics, and special shoes for her diabetes. He also ordered additional testing to be performed by nurses.
Count twenty-seven charged Campione with distribution of CDS to D.H. During his statement to investigators, which was read to the grand jury, D.H. stated he was referred to Campione by a pain management physician. He described his medical condition as three herniated discs, a bulging disc, and sciatica. He was treated at his residence. Campione examined and urine tested him each month to make sure he was not selling his medication. In addition to pain medications, Campione prescribed Adderall for ADHD. He noted that his previous psychiatrist had also prescribed Adderall for that condition. When he sought an increase in Oxycodone dosage, Campione refused because he would not over prescribe.
The Appellate Division seems to be hinting that the evidence is weak with regard to the counts that survived the motion to dismiss. If this case proceeds to trial, the exclusion of evidence and limiting instructions will be very important. The evidence rules that are the bases for exclusion or limiting do not apply to grand jury presentations.
